January/February Negative Analysis

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January/February Negative Analysis

Postby lsabino » Mon Dec 10, 2012 4:32 pm

Recently, we discussed the affirmative side of the January/February Lincoln-Douglas resolution:

Resolved: Rehabilitation ought to be valued above retribution in the United States criminal justice system.

Today, we’ll discuss the negative side – the arguments in favor of retributive justice. Retribution advocates hold that crime is fundamentally a choice for everyone regardless of circumstances, that those choosing to commit crimes have made a fundamentally immoral decision to place their benefit above the endangerment, dignity, and possible death of others, and that these individuals should be punished as retribution. They also believe that society works best when laws are clearly articulated and strongly enforced not only because this keeps criminals off of the streets and vindicates victims but also because this strongly deters potential criminals from engaging in illegal activities because they fear repercussions.

We’ll begin with our first argument:

1. Retribution is critical to a moral social contract.

Charles Murray citing, among others, Immanuel Kant, explains:

Charles Murray, “Simple Justice,” Sunday Times, January 25, 2004, Lexis.
The primal function of a system of justice is to depersonalise revenge. The agreement, perhaps the most ancient of all agreements that make it possible for communities to exist, is that the individual will take his complaint to the community. In return, the community will exact the appropriate retribution - partly on behalf of the wronged individual, but also to express the community's moral values. Justice means retribution through punishment and upholding the supremacy of the good members of the community over the bad. The word "retribution" is jarring to modern sensibility. Someone who wants retribution is harking back to the bad old days of an eye for an eye, we think. Retribution is something civilised societies ought to rise above. The victim's desire for retribution is atavistic and unworthy. Is it? As a way of testing your own views, consider a thought experiment that Immanuel Kant, the German philosopher, posed two centuries ago. He imagined an island society that is to disband tomorrow. Its citizens must decide whether a murderer awaiting execution should be executed. (If you're against the death penalty, substitute some other suitable punishment.) Executing him will have no expedient benefit for members of the society. It will certainly have no benefit for the prisoner. We will assume that the prisoner, if released, will not kill again. The only purpose of the punishment is retribution. Should the murderer be executed? Kant says yes, that "the last murderer remaining in prison must first be executed so that everyone will duly receive what his actions are worth". What do you say? This way of looking at the function of justice has a distinguished intellectual pedigree, but the principle itself is deeply ingrained in most people's sense of the rightness of things. It feels instinctively wrong when someone does something bad and gets away with it. When we say that someone "gets away with it", we mean that the person suffers no punishment or too little punishment. The core tenets of retributive justice are simple. The necessary and sufficient justification for punishing criminals is that they did something for which they deserve punishment. Here "something" refers to the behaviours that society has defined as offences; "deserve" means that the offenders are culpable -morally responsible. Society not only has the right to punish culpable offenders; the moral responsibility of the offender imposes on society the duty to punish. That's it. Nothing about rehabilitation, remorse or socioeconomic disadvantage. Nothing about the bad effects that the punishment might have on the offender or, for that matter, its good effects. The purpose of a sentence is punishment. When a system fails to punish culpable offenders, it has failed, full stop. It is unjust.


A few arguments here:

1. Citizens give up the right to punish offenders via vigilante justice in exchange for the security that society will justly mete out punishment (in fact, some retribution activists, though not Murray, go so far as to argue that if the criminal justice system is not sufficiently punitive, individuals may take justice into their own hands).

2. Punishment is an appropriate expression of the seriousness with which a community values law and order. Punishment demonstrates and reinforces community ideology by underscoring that law abiding citizens are entitled to an easier, more comfortable existence than those who have chosen to break the law.

3. Punishment should be conceived separately from the function of removing problematic individuals from society or from what their future may be. Punishment is most productively theorized, for retributionists, as a way of giving an individual what they deserve so that moral equilibrium is maintained. No person should benefit from the disadvantage of others, no matter what the benefits of taking a rehabilitative approach.

This last argument is an important way of bracketing out the recidivism debate, if you like – you may simply choose to argue that the benefit to society should be valued second to the moral concept that justice is best served when individuals feel the consequences of their crimes.

George F. Will elaborates,

George F. Will, “The Value of Punishment,” Newsweek, May 24, 1982, Lexis.
Retribution: In 1952 Justice Hugo Black wrote: "Retribution is no longer the dominant objective of criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence." Today, after 30 years of rising crime and recidivism, we at least know what we do not know--how to reform and rehabilitate. In 1972 Justice Thurgood Marshall wrote that "punishment for the sake of retribution is not permissible under the Eighth Amendment." That is absurd. The element of retribution--vengeance, if you will--does not make punishment cruel and unusual, it makes punishment intelligible. It distinguishes punishment from therapy. Rehabilitation may be an ancillary result of punishment, but we punish to serve justice, by giving people what they deserve. From plea bargaining through sentencing through paroling, the criminal justice system is riddled with exercises of discretion that are unjustified by sufficient knowledge, and unrationalized by coherent theories. This is especially true at the parole stage, where judgments often presuppose--rashly--knowledge of rehabilitation and individual predictability. In penology, as in other fields of social reform, the millennium has been indefinitely postponed. For now, we should do what we know how to do, for reasons we can explicate. We should use the criminal justice system to isolate and punish--that is, to protect society from physical danger--and to strengthen society by administering condign punishments that express and nourish, through controlled indignation, the vigor of our values. We should be ashamed and alarmed to live in a society that does not intelligently express through its institutions the public's proper sense of proportionate punishment for the likes of Smith, Powell and Sirhan. We are in danger of becoming demoralized--literally, de-moralized.


The best warrant in this evidence is that there should be a distinction between punishment and therapy. Justice is a separate and arguably more important consideration, for Will, than other values associated with rehabilitation (social well-being of prisoners, etc.) Will argues that therapy does not fulfill the function of justice, which is to denounce wrongdoing and channel appropriate outrage at criminal behavior. Therapeutic solutions, he argues, solidify a dangerous moral relativism wherein society accepts that individual responsibility may be diminished by surrounding circumstances (addiction, trauma, etc.) This relativism may ultimately be more humane for the criminal, but it does nothing to express social distaste and instead underscores the idea that criminals, no matter how despicable, should not be held morally accountable for their actions. The drive for understanding may be admirable, but undermines the very intelligibility of justice as a concept.

2. Restitution is the least costly and most effective method of decreasing crime.

On the other side of the recidivism argument expressed in the affirmative post, some argue that rehabilitation is inherently ineffective and may indeed cause criminals to re-offend. Will (above) hints at this when he cautions that our one-size-fits-all rehabilitation solutions do not adequately and reliably work well enough for as many criminals as we’d like. Kevin O’Brien Chang elaborates,

Kevin O’Brien Chang, “Lock up repeat offenders for life,” Jamaica Gleaner, September 17, 2006.
In 1974 Jamaica and the U.S.A. had similar murder and incarceration rates - roughly 10 murders and 150 prisoners per 100,000 persons. In 2005 America's incarceration rate was over four times that of Jamaica's, and its murder rate was less than one tenth of ours. There are many reasons for these changes. But undoubtedly a main factor has been U.S. policies such as mandatory prison sentences for violent crimes and 'three strikes you're out' laws, meaning that anyone convicted of three felonies is jailed for life. Since it got 'tough on crime' in 1980, the U.S. prison population has soared and its murder rate plummeted. Voters there clearly think this a good trade-off, as no 'soft on crime' American politician has any chance of being elected. A 'three strikes' policy would almost certainly be as effective and popular in Jamaica as in the United States And it's surely preferable to the increasingly common 'thief fe dead' lynch mob alternative. Having the world's highest incarceration rate rather makes a mockery of America's 'land of the free' boast. But that doesn't bother me when I visit the U.S. and am able to stroll around in relaxed safety. What really irritates me is being unable to walk 10 yards in the land of my birth without constantly looking around for fear of being robbed or assaulted. And I hardly think I'm being paranoid considering our paradise island has the planet's worst homicide rate.


Chang is making a clearly correlative argument – that higher incarceration rates per capita contribute to low crime rates. In comparing Jamaica (relatively low incarceration rates and relatively high crime rates) to the U.S. (the reverse), he argues that society is ultimately safer when criminals are locked away at higher rates (ostensibly because criminals are deterred by fear of ending up in prison). His data may be anecdotal, but it supports this thesis.

Charles Murray makes a similar correlative argument about England in the past:

Charles Murray, “Simple Justice,” Sunday Times, January 25, 2004, Lexis.
Using that frame of reference is a good idea. The view of justice I have advocated must seem radical and barbarically punitive to many readers. But that's the system Britain used to have -not in the Dark Ages but at the beginning of the reign of Elizabeth II. Britain still practised retributive justice back in 1954, although nobody called it that. It was simply justice, the only kind that crossed anyone's mind. It worked. In the first half of the 20th century Britain had one of the freest societies ever created, and at the same time one with such extraordinarily little crime that the civility of British life was an international cliche. The professionalism of the British police and the fairness of British courts set standards for the world. It was not a perfect system, but perfection is not what complex governmental systems can aspire to. By any realistic measure, British criminal justice was superb. Its philosophical core was what I have been calling retributive justice, applied consistently and without apology. Isn't it time for its return?


On a more quantitative note, a study cited in The Times provides similar results:

The Times, “Prison is a Bargain,” May 12, 2004.
There has been a long debate among US academics about how to calculate the costs and benefits of prison. One study by Professor John DiIulio estimated that the annual cost of keeping a criminal in jail is $25,000 and the total social and economic cost to society (including policing, insurance, injuries, replacing stolen property, and household expenditure on security measures) of allowing the median offender to remain at large is $70,098. The resulting cost-benefit ratio is 25,000:70,098 or 2.80. On these assumptions it is worth jailing about 75% of criminals, but would be a waste of money to imprison low-rate offenders, who impose a cost on their fellow citizens of less than $25,000. … But all such estimates are based on assumptions and everyone knows that if you tweak the assumptions you can get the answer you want. How can we produce a more reliable estimate? Rather than opting for a single set of assumptions, let's explore a range. The first relies on a Home Office self-report survey of prisoners in 2000. The second is ultra-conservative, the third emulates Home Office calculations used to work out the crime-reducing effects of offending behaviour programmes, and the fourth is based on a study by Cambridge University's Professor Farrington to discover the cost-effectiveness of youth custody. The cost estimates were made in 2000 at 1999 prices and should be compared with prison costs for a similar period. According to the Parliamentary answer given in June 2001, the average cost per prisoner place in a male closed Young Offender Institution (where the most persistent offenders might find themselves) was £23,063. … Home Office assumptions: However, when the Home Office made a similar calculation of the crime-reducing effects of one of its programmes it multiplied the number of convictions by five to correspond to police recorded crime and then multiplied the result by a further 4.2 to correspond to the British Crime Survey, which has consistently revealed more crime than police records. This method produces a total number of 54 offences per year, which in turn produces a total cost of £103,842. For every £1 spent we save £4.50. Professor Farrington's preferred assumptions: Professor Farrington has expressed doubts about the 'five' multiplier used by the Home Office and cited his own earlier study of 18 year-olds in South London, which had found that for six types of crime (burglary, taking vehicles, stealing from vehicles, shoplifting, theft from automatic machines and vandalism) only about one in 30 led to conviction. If there are 2.57 convictions, they should be multiplied by 30 to arrive at the number of offences, 77. This produces a total social cost of £148,071. For every £1 spent we save £6.42. Even if we make the highly unrealistic assumption that criminals only commit the offences for which they are caught and convicted, prison is good value for money. When we make more accurate assumptions, based on official crime figures and Home Office estimates of the social and economic costs of crime, incarcerating persistent offenders is not only good value for money, it's a bargain.


According to The Times, no-frills imprisonment is the cheapest way of decreasing crime. This is critical to establish because it may be unethical to impose higher-than-necessary costs for crime reduction. Consider: crime reduction, as part of the social contract, is something we pay for when we pay our taxes. Should taxpayers bear the responsibility of spending more so that criminals may receive rehabilitative services for free? Even if these services may be beneficial, this study indicates that other methods may be equally beneficial while being much cheaper. From an ethical standpoint, we perhaps should not ask taxpayers to shoulder these responsibilities.

3. Progressive notions of justice fail the theory vs. practice test.

On a related note, let’s assume the efficacy of these approaches is not equal. Rehabilitation tactics have come under close scrutiny by advocates of retributive justice and many argue that the project of rehabilitation is nobler than it is effective. Consider the following argument from Charles Murray,

Charles Murray, “Simple Justice,” Sunday Times, January 25, 2004, Lexis.
I further argued that this opposition flows from a progressive view of justice that seems to be almost universally shared among the criminal justice elites a view that sees a "just" sentence as a complicated balancing of the nature of the offence, the particulars of the offender's situation, protection of the rights of the offender and concern with the effect that a sentence will have on the offender. The progressive view of justice has qualities that people with high IQs tend to like: it is nuanced and uses complicated explanations for human behaviour. It also has the quality that tends to make such theories so disastrous as public policy: what can be put into practice bears no resemblance to the promises of the theory. The reality is that nobody is smart enough to get justice right when attempting to balance the factors that progressive justice tries to balance. Consider how hard it is for parents to be sure whether a misbehaving child needs an explanation with a hug, a stern warning or a lesson that won't soon be forgotten. Now compare how much parents know about their own children with how little judges know about convicted offenders who appear before them for sentencing. The judge has seen the offender for a matter of hours at most, more likely a matter of minutes. He may have read a sentencing report on the defendant, often sketchy, often factually wrong. The judge is then supposed to assess whether the offender feels genuine remorse and whether the offender is likely to reoffend. How? Everyone who stands before the judge is highly motivated to say whatever the judge wants to hear and be whatever the judge wants him to be. The better the criminal, the better the act. The judge is supposed to be able to see through all that and accurately assess whether the offender is really, truly sorry for what he did and is going to change his ways. It is an absurd premise. Indeed, even when the offender does feel genuine remorse, that doesn't mean the offender will stop offending. Two other characteristics of criminals are impulsiveness and a short time horizon. Offenders can be really, truly sorry for what they did today and be back on the streets doing it again a week from now. As police and probation officers will tell you, it happens all the time. The judge is supposed to decide whether the offender will respond better to a community sentence or to prison. How? Individual case histories of offenders reveal every kind of response, from the offender who is set straight by a tough prison sentence to the one who sees the error of his ways by apologising to his victim. A judge has to guess. I know judges prefer to call it the use of judicial discretion, not guessing -but guessing is what it really amounts to. Making matters worse, the guess usually reflects not the unique characteristics of the defendant and the offence, but the judge's personal ideology. Everything I have said about judges applies equally to the people in the Crown Prosecution Service who are making decisions about whether to plea-bargain, drop charges or bring a case to trial. For practical purposes, the question of whether the justice system should take personalities, background, remorse or predictions about future behaviour into account when deciding what should be done to an offender is moot. Whether or not it should, it can't. Prosecutors and judges cannot be that smart about the parade of offenders who come before them. Progressive justice doesn't do what it claims to do. THE technical label for the simple alternative to progressive justice is "retributive justice". It is the modern version of the systems of justice that came into being at the dawn of human history, and it is based on the same reasoning.


Murray argues that successful rehabilitation requires knowledge of many variables which often elude judges. This is because the theory itself relies on a premise that dooms its own feasibility – the idea that humans are too complex for a single prescription to end a life of crime is also a reason why attempting to impose personalized sentencing based on the needs and circumstances of a particular offender is nearly impossible. Judges and juries don’t know an offender well – at least not very well. They often rely heavily on conjecture and on statements by an offender which may be heavily doctored or even be lies. The guesswork that takes place may serve a higher theoretical purpose – treating offenders as complex individuals with a variety of challenges and motives. It fails, however, when it comes to practicality. This failure happens so often as to disqualify rehabilitation as a solution. The theory vs. practice dichotomy is an important one to highlight in a debate because it allows you to cede to the opponent that an idea has some ethical merit while still winning a utilitarian danger to society should outweigh.

Finally, Raymond Plant gives a conclusive statement that:

Raymond Plant, “Don’t write off retribution,” The Times, May 24, 1989, Lexis.
Deterrence theories reject rights and equity as fundamental to punishment and treat individual criminals as means to social goals. They also assume that we can know the likely deterrent consequences of particular forms of punishment, which is dubious. In the 1960s, it was argued that the whole idea of punishment was primitive and should be replaced by rehabilitation and therapy. In its most extreme forms, such as Karl Menninger's The Crime of Punishment, criminal behaviour was seen as the symptom of a pathological personality disorder which was the result of early nurture and environmental influence. To solve the problem of crime, it was said, we should not use the blunt instrument of punishment but rather look to the individual circumstances of each criminal and try, through therapy, to modify those features of his personality which disposed him to crime. This put a lot of trust in professional judgement about the nature of the therapeutic regime and entrenched discretionary power with parole or probation officers, for example. This professional authority in turn depended on the view that there was an explanation for human behaviour which would enable us to diagnose the nature of this personality disorder and the appropriate form of treatment. This claim is highly disputable and, in any case, is an ineffective ideal, given the nature of British prisons.


Plant argues that, along with the low chance of determining an effective treatment for criminal behavior, rehabilitation advocates are begging the question: they posit that there is always a social cause for criminal behavior and, in so doing, ensure that they will find said cause in every instance because they were looking for it in the first place.

4. Criminal activity is a choice; it should be punished as one.

Murray also makes an additional argument about the nature of crime and criminals. Unlike rehabilitation advocates who stress the degree to which criminal actions are pre-figured and often caused by a variety of factors outside of an individual’s control, retribution advocates stress that all choices are still ultimately up to the individual. Yes, it may be simpler for a rich man to resist stealing than for a poor man to do so, but how then do we explain rich men who steal millions and poor men who never steal at all? Retribution advocates stress that an individual bears ultimate responsibility for crime, regardless of mitigating circumstances. Charles Murray explains:

Charles Murray, “Simple Justice,” Sunday Times, January 25, 2004, Lexis.
But if retributive justice is not as harsh as it may first appear, neither is it warm and fuzzy. Before you decide that you are a retributivist after all, you have to decide what you think of this collateral view of crime and justice that is necessary to make retributivism work. Here it is: for practical purposes, society can be divided into citizens and outlaws. In conflicts between them, the law should favour the citizens. The progressive view of justice vehemently rejects this notion, starting instead from the premise that we are all sinners. Some of us pad out expense accounts while others mug pensioners -both acts are thefts. All of us could be arrested for something, and probably even be put in prison for something. People fit on a continuum, not into black and white categories, and justice should reflect that continuum. In defending a dichotomy between citizens and outlaws, I am allying myself with an old English legal maxim: because there is twilight does not mean there is neither night nor day. We are all sinners in God's eyes, but the everyday world contains millions of decent, law-abiding people -the people whom I label citizens -who are different in kind from a much smaller number of people whom I label outlaws. Perhaps citizens pad out their expense accounts, but they never come close to killing, wounding, robbing, burgling, or raping -the elemental predatory acts. The person who does kill, wound, rob, burgle or rape has stepped over a line and become an outlaw. While he is in a state of outlawry, he has lost many rights that citizens enjoy. During the actual commission of the crime, the outlaw's rights have nearly disappeared. The extreme view is that a mugger has no cause for complaint if a young woman victim not only sprays him with Mace but pulls out a handgun. The burglar has no complaint if the homeowner pulls out a shotgun and shoots him as he attempts to flee. In both cases the outlaw has caused his own wounding or death - if he had chosen to be a neighbour instead of a predator, he would have gone unharmed.


The implication here is that, when an individual makes a choice to be a criminal, they risk their freedom and lives. Restitution is a way to ensure that the choice to commit a heinous act, such as murder, is accompanied by the appropriate level of risk. For Murray, regardless of how the choice was made, it is still ultimately a choice for the criminal and, if retribution is made clear then a reasonable expectation should be present on the part of the offender that they will pay a price. If the criminal justice system chooses not to follow through on said price, it risk endangering the idea that criminality is a choice at all (the moral relativism charge explained above). This is, for Murray, a dangerous fallacy that undermines law and order in favor of “outlaws.”
Mark Dooley elaborates,

Mark Dooley, “As assassins run free on our streets, I say we must consider the ultimate in deterrents: the death penalty,” Daily Mail, January 28, 2008.
WHO will now deny that we are living in an age of savagery, one in which evil casually swaggers around murdering on a whim? Who will deny that our ridiculous addiction to rehabilitation has robbed the criminal justice system of its power to defeat that evil? And who can now look at the mayhem we witness all too often, and continue to claim that society is solely to blame for its criminal classes? No, my friends, Martin The Viper Foley is no victim. Neither is the thug who shot him on Saturday afternoon. They are not, as the rehabilitation lobby maintains, casualties of economic deprivation and social exclusion. If anything, they are deadly proof of what happens when a society trades moral certainty for moral decay. But not according to the social workers and sociologists, whose views have poisoned Irish prison policy. Oh no, according to them, criminals need our understanding and sympathy. That's right, murderers and rapists, terrorists and psychopaths are, in reality, decent people crying out to be loved. As such, they represent the sad side of a system that knows no mercy or compassion. Give me a break. It is thanks to such daft theories that our once-great criminal justice system is now considered a joke by Irish criminals. Today, the gardaí have been dangerously emasculated, the judi-ciarys authority is in terminal decline and criminals view prison as a playground.


Although Dooley is quite a bit more inflammatory in his statements than Murray, his point is similar: most criminals know right from wrong and simply choose to do wrong. In this view, to excuse some criminals as victims of their circumstances is to excuse all criminal activity and to give unofficial permission to those who wish to do wrong simply because they seek to benefit from the misfortune of others. The existence of “bad people” dooms the idea that criminal activity is excusable because, even if rehabilitation is appropriate for some, the fact that it allows wanton disregard for human dignity to go unpunished in even a few instances should be enough to prefer a retributive system.

Raymond Plant argues that the “choice” view is, ultimately, a more ethical way to look at criminality for the offender as well:

Raymond Plant, “Don’t write off retribution,” The Times, May 24, 1989, Lexis.
However, in common with the utilitarian view, it not only treats the criminal as an object of social policy but also seeks to change his character. It has a view of the human personality which makes it difficult to acknowledge that such people have rights, because they are not really responsible agents. So what about the maligned retributive theory? Central to it is the doctrine that the individual criminal is responsible for his crime. Guilt then becomes the necessary and sufficient condition for punishment. It assumes that a person should be punished according to the social abhorrence of the crime. This may be what lies behind the claim of an eye for an eye, in the biblical version of retribution not that the punishment should exactly fit the crime, but rather that there should be a strict rule of punishment which follows from the nature of the crime. The prisoner has a right to be treated as a responsible agent and according to a strict rule; not in such a way as denies this, as the therapeutic approach does, nor in a way that can be varied by the demands of social utility, which is central to the deterrent view. Retribution also fundamentally differs from revenge, which is personal, acknowledges no internal limits, takes pleasure from the act, and is not generalizable. The whole point of the retributive theory is to stick to a general rule of just retribution. The left in Britain is now interested in the idea of rights, citizenship and limitations of discretionary power of professionals. As such it should heed what in the US has come to be called the justice model of punishment, rather than rely on approaches which are manipulative, do not entrench equitable treatment and rely too much on professional judgement.


For Plant, only acknowledging the role of choice in criminal punishment treats the accused with dignity. The alternatives are bad because:

1. The rehabilitative approach assumes individuals cannot make their own choices, which devalues individual free will. Arguing that individuals have little to no control over what they do is insulting and removes both credit and blame, making crime prevention meaningless. Human dignity is best honored by promoting individual responsibility; this way, individuals can feel a sense of ownership and control over their own lives.

2. Even if the rehabilitative view is ultimately better for society in terms of recidivism, this subordinates individual responsibility and accountability to the needs of the justice system which ultimately (again) eclipses the role of the individual in a crime and obfuscates society’s responsibility to hold him or her accountable.

5. The idea that retribution breeds criminality is fundamentally unfair to citizens and society.

Still others answer the “retribution leads to recidivism” argument in a fundamentally more global way. Murray again argues,

Charles Murray, “Simple Justice,” Sunday Times, January 25, 2004, Lexis.
All of the issues I have treated so sketchily raise genuinely difficult problems that need to be considered at length. The "citizens versus outlaws" perspective merely says that in making judgments about the benefits and risks of alternative policies, it's not supposed to be a level playing field: citizens get preference. As the debate stands, citizens are in effect held hostage to threats by the outlaws ("If you put me in prison, I'll just become a worse criminal"). As the debate stands, the legal protections of an innocent defendant are treated as if they were identical to the legal protections of the guilty defendant (they aren't). As the debate stands, nobody is supposed to mention the obvious: everything good in British life is produced by the citizens. That they may go about their lives freely and in peace is the highest goal that government can serve.


Murray’s charge calls into question the logic behind the “rehabilitation solves recidivism” claim by repositioning it as a veiled threat by criminals that, unless they are treated lightly in prison, they will offend again, possibly more violently than before. Although this may never be explicitly stated by criminals, there’s something persuasive about considering the argument this way. Let’s assume for a moment that it’s true that rehabilitation is better for recidivism than is retribution – assuming criminals have choice in the way they act (which retributionists assert that they do), the choice to re-offend after punishment simply proves they are of weak character, failed to learn anything from their term in prison, and deserved punishment in the first place (plus more severe punishment for reoffending) not that the system necessarily failed them. Moreover, assuming the innocent people they’ve wronged have an interest in seeing them punished, that should outweigh the desire of the criminal to evade punishment because citizens, by virtue of abiding by laws, should have their needs and desires placed before those who choose not to do so.

6. The integrity of punishment should be the foremost consideration for a criminal justice system.

Finally, some affirmative teams will stress that human fallibility necessarily means that some innocent individuals will end up being punished by the system. They may extrapolate this argument to bolster the idea that retribution is dangerous because any risk of punishing the innocent abdicates the moral high ground claimed by retribution advocates. Dooley responds to this claim, stating:

Mark Dooley, “As assassins run free on our streets, I say we must consider the ultimate in deterrents: the death penalty,” Daily Mail, January 28, 2008.
But in constitutional democracies, capital punishment is an act of just retribution. It is, in other words, the only just price to be paid for the intentional destruction of an innocent life. Yes, miscarriages of justice can and do occur in cases of capital retribution. But only the morally vacuous would argue that it is best for a thousand guilty criminals to go free, than for one to be wrongly imprisoned or executed. Listen to legal and moral theorist Louis Pojman: Society has a right to protect itself from capital offences, even if this means taking a finite chance of executing an innocent person. If the basic activity or process is justified, then it is regrettable, but morally acceptable, that some mistakes are made. That occasional error may be made, regrettable though this is, is not a sufficient reason for us to refuse the death penalty, if on balance it serves a just and useful function. And what is that just and useful function? It sends a powerful warning to the potential murderer that society will not tolerate his evil plans. It reminds him that in killing the innocent, he will also condemn himself. To cite Roger Scruton, it is the murderer alone who is responsible for his punishment. Please dont delude yourself about the dire crisis we are in. Law and order has collapsed, murderous psychopaths are running wild, and our woefully under-resourced police force is incapable of taming them. Meanwhile, the victims of crime are routinely ignored by a justice system that has long since lost its moral compass.

Dooley takes a strictly utilitarian view here, assuming that even if the justice system is fallible, it is right much more often than it is wrong and the punishment of guilty murderers is well worth a few mistakes. Moreover, even if the criminal justice system is often wrong, for Dooley the threat of imprisonment and capital punishment is still justifiable on the grounds that it dissuades potential criminals who fear retribution and do not want to risk that they will be caught (assuming that they often perceive the system is more effective than it actually is).

That’s all for today, folks! This concludes our full topic analysis for the rehabilitation and retribution topic – as always, feel free to submit your cases to lauren (dot) sabino (at) ncpa (dot) org for a free case critique! Have questions? Feel free to let us know in the forums or via e-mail. Good luck this season!
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