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Responsibility and PunishmentReview - Responsibility and Punishment
Third Edition
by J. Angelo Corlett
Springer, 2006
Review by Justin Moss, M.A.
Dec 12th 2006 (Volume 10, Issue 50)

J. Angelo Corlett's purpose in this book is to set forth and defend a neo-Kantian variety of retributivism against critics of all stripes. He writes with an incisive and at times polemical voice, designed to add particular emphasis to the force of his conclusions. Those conclusions are that we should accept retributivism as the most plausible and least problematic theory of punishment.

There are, broadly construed, two sections of the book. The first section, encompassing chapters one through six, deals with some fairly standard theoretical issues surrounding retributivism, which can be summarized relatively quickly; outlining of certain axiomatic concepts, such as responsibility and desert; outlining a historical foundation for retributivism which draws heavily upon the writings of Immanuel Kant, particularly from Kant's Metaphysical Elements of Justice; an assessment of retributivism's implications; a defense of capital punishment, and a discussion of the role of forgiveness and mercy in retributivist contexts.

As the debate over retributivism is a not a new one, the sections of the book dealing with purely theoretical issues are short, and what we might call the most interesting parts of the book come towards the end, in the second section. The second section of the book, encompassing the final three chapters, is Corlett's attempt to make sense of the issues of collective wrongdoing and reparations for past wrongs. It is likely that the reader will feel that the first part of the book has been one long setup for Corlett's two large test cases: 1) why corporations can be convicted of collective malfeasance and 2) why the United States owes reparations to Native Americans.

Several parts of the book merit mention. For instance, in chapter three, Corlett plausibly chastises those who take Kant to be a pure retributivist when he says that it does not embarrass Kant to give a secondary justification for punishment; that punishment should be administered in such a way that it should benefit society. Indeed, Kant might say that, ceteris paribus, "the state should punish the criminal so as to benefit society in the best possible way" (56). This comes as secondary to the more important Kantian idea that the criminal "must first be found to be deserving of his punishment before any consideration is given to the utility of his punishment for himself or for his fellow citizens" (54).

In addition, accounts of collective responsibility seem to be in fashion in recent years. Corlett proposes his own here, and other authors, such as Philip Pettit (whom Corlett repeatedly criticizes), have been busily proposing theirs (A Theory of Freedom: From the Psychology to the Politics of Rational Agency (Cambridge: Polity, 2001). To make this issue somewhat clearer, consider: Pettit suggests that conglomerates display collective mental properties when the conglomerate's members reason together collectively and make decisions in a group-oriented manner (Ibid, Chapter 5). Corlett suggests that at the very least, it is doubtful whether many large conglomerates (such as a nation) actually satisfy this condition, but he clearly thinks that many smaller groups, and even, on occasion, some larger groups, satisfy the conditions of his analysis of collective responsibility. Corlett's account is nuanced, and recognizes some long-standing problems in the theory of collective agency; as a result, Corlett is cautious about ascribing moral responsibility to collective agents that do not clearly satisfy the conditions of his analysis, whereas Pettit seems much more liberal in ascribing responsibility and agency to collectives based on how their members interact qua members of a collective. Corlett's principled cautiousness, I suggest, is an advantage of his account over Pettit's. As it is more about the problems of the concept of collective agency than any possible solutions, it helps the reader to think about the deep difficulties of the idea.

Chapter four contains Corlett's attempt to assess the scope of retributivism, and it is in reading this chapter that the reader might wonder about the depth and plausibility of retributivism as a theory of punishment. The cornerstone of retributivism is, in general, the idea that criminals deserve a certain sort of punishment for their crimes. What sort of punishment? Corlett answers with a version of lex talionis: "As far as humanly possible, criminals ought to be punished in ways which match the extent of the amounts of harms that they illicitly wrought on others" (86). An obvious question arises: what does "as far as humanly possible" mean? This phrase is left ambiguous. There are two possible interpretations. One is that the state should make it its business to hunt down and punish as many criminals as possible, which Corlett is in favor of. The other interpretation is that the state is justified in devising methods of punishment that, to put it mildly, might make an observer wonder about the vindictiveness of the method's inventor. Corlett seems to support this endeavor as well: "Susan Smith, for instance, deserves death by at least something akin to drowning, because she intentionally, voluntarily, and knowingly drowned her two children." (87). Were it possible to invent a machine that reproduced exactly the kind of torture that rape victims experienced on their rapist, that would also be permissible. The key, then, is that criminals should be punished based on the kind of harm they cause to others -- but to what extent is this measurable, and by who is it measured? How is it possible to replicate the psychological aspects of the crime? And how is it possible to make sense of the idea, in a retributivist context, that one person may rate her suffering differently than another might? Consider the case of a lesbian being raped by a man versus a heterosexual woman being raped by a man. How would it be possible for a machine to replicate such experiences? Working with Corlett's variant of lex talionis, we should ideally attempt to reproduce for the rapist exactly what it was like for the victim. Corlett, however, seems pessimistic about the prospects of retributivism to fulfill such a requirement and declares that "a subjective standard of assessing suffering is not, for this reason, appropriate concerning the determination of the victim's level or degree of suffering as the result of an offence" (96-97). This, then, amounts to basing the determination of suffering on what is more or less physically observable. But the harm that a lesbian suffers at the hands of a male rapist seems intuitively different than the harm a heterosexual woman suffers at the hands of a male rapist, and these differences are not matters of physical damage. Retributive justice would ideally take such factors into account. That it does not because of a mere pragmatic difficulty seems manifestly unjust.

One theme of this book is that the problems retributivism faces -- of proportionality and desert -- are problems that all theories of punishment face. But Corlett's version of retributivism is uniquely difficult in that it seems to face a far more complicated requirement; that of making the punishment literally fit the crime. Corlett's own examples seem to highlight this difficulty, and he is ultimately unable to resolve it. While retaining retributivist ideas, he seems in practice to opt for something far more pragmatic and conventional. This is particularly evident in his discussion of the Susan Smith case mentioned earlier, where he says that "the state might opt for a less painful or dramatic method of capital punishment, but hopefully not because [Susan Smith] is a female" (87). It is not clear, though, that he demonstrates these qualms consistently throughout the book -- for why should Susan Smith be spared a spectacular death and a rapist be subjected to the worst the machine has to offer? If the thing that makes a theory unique is an implausible requirement -- and beyond this, there is no particular issue faced by retributivism that is not faced by other theories of punishment -- then all retributivism is left with is the emotionally-driven idea that some people deserve to suffer for their actions. Passion to see justice done is a good thing, but the vengeful passion to see others get what they deserve is a problematic notion that has done far more harm than good in human affairs.

 

2006 Justin Moss

 

 Justin Moss recently graduated from the University of Idaho with an MA in Philosophy, and is now studying for the Ph.D. in Philosophy at the University of Nebraska-Lincoln.


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