Monday, 8 June 2020

Rage and Retribution

By Seth Stancroff
What do emotions have to do with justice? A lot, it seems, when we survey the events of recent weeks in the USA. Here I call upon the so-called ‘moral sentimentalists,’ who argue that emotions play a leading role in our determinations of what is morally right and wrong, and of whom many believe that emotions are the primary source of moral knowledge.
It seems to me that moral sentimentalism has much to say when it comes to strong emotional responses to issues of injustice and criminal punishment. These responses, when viewed through the sentimentalist lens, might change the ways we view theories of just punishment.

Indeed, I would argue that emotional reactions to issues of injustice, and the sentimentalist analysis of these reactions, should indeed influence the ways we think about punishment and moral justifications for it. Specifically, the sentimentalist view might suggest that retribution (as opposed, for example, to deterrence, rehabilitation, or incapacitation) is well-suited to honour the feelings of those harmed by injustice.

In other words, while retributive justice is often criticised as being uncivilised and vindictive, retribution is perhaps uniquely able to acknowledge the pain and suffering that arises from injustice.

Consider the recent cases of Ahmaud Arbery, an unarmed 25-year-old black man who was shot and killed by Gregory and Travis McMichael, a former police officer and his son (both of whom are white), on 23 Februrary 2020, and George Floyd, an unarmed 46-year-old black man who was murdered by a white police officer, Derek Chauvin, on 25 May 2020.

These incidents have come to serve as reminders of the violent racism that persists in the United States. Floyd’s case, in particular, illustrates the deep-seated racism that plagues police officers and informs policing practices. Arbery’s is reminiscent of the horrifying and relatively recent period in U.S. history when extralegal killings of black people by white vigilantes were common.

Both of these tragedies have rightly sparked disgust and outrage. Those protesting Arbery’s murder gathered holding signs stating, ‘We will get justice.’ Arbery’s mother said, 'I want all hands involved in my son’s murder to be prosecuted to the highest … my son died, so they should die as well.' Floyd’s murder has motivated widespread protests in cities around the world, with activists demanding justice and proclaiming, ‘No justice, no peace.’

These incidents—as well as many other cases in which black individuals have been killed by police or other white offenders—suggest that often, our first instincts are not to turn to deterrence, rehabilitation, or some other conception of punishment. Anthony Walsh and Virginia Hatch, in an article for the New Criminal Law Review in 2018 entitled, ‘Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective,’ capture this well:
‘A retributive punishment justification is the only justification associated with deep emotions related to social concern. When people hear of some vicious criminal act, they become angry, outraged, and disgusted, and their first inclination is to want to exact some sort of retribution; it is highly unlikely that their first thoughts should be of deterrence or rehabilitation.’
The murders of Ahmaud Arbery and George Floyd highlight two features of emotional responses to injustice and the retributive urge:

1. When people hear about these acts of injustice, the kinds of punishments they seek for the offenders are indeed retributive. Impassioned calls such as 'Justice for Floyd,' and 'My son died, so they should die as well,' while perhaps understandable, do not imply an appeal to deterrence, and certainly not rehabilitation. These statements suggest that those who committed such crimes should be punished as a result of their injustices. They should be subjected to some harm because of the harms they caused.

2. The kinds of punishments for which many ask hinge heavily on the notion of desert, or the extent to which the offenders are deserving of punishment. Of course, retribution is the theory of punishment most concerned with desert. Deterrence, rehabilitation, and incapacitation are not the first ideas that come to mind in cases like these. Instead, many imagine that Derek Chauvin, as well as those who murdered Ahmaud Arbery, deserve to be punished.

All of this is to say that, although certain criticisms of retribution may be warranted, it is important to recognise that the theory occupies an important space within societies’ sensibilities and moral intuitions surrounding justice and punishment. If it is indeed the case, as the moral sentimentalists argue, that morality and emotions are closely tied, then emotional responses to injustice, and the retributive urges that accompany them, should not be deemed morally irrelevant.

While state-sanctioned punishment certainly should not be motivated by rage and vindictiveness, it is important to see that, in some cases, retributive urges will be strong and understandable. Although there are other theories that take more utilitarian and dispassionate approaches to punishment, it seems that they may not explicitly acknowledge the suffering caused by acts of injustice. Retribution, at the very least, honours this kind of pain.


Keith said...

My concern, Seth, about retribution as the grounds for justice is that it smacks of revenge — a kind of visceral eye-for-an-eye mindset. That is, taking satisfaction from the criminal’s pain being made to match the victim’s pain. I understand why family members, friends, and associates of the victims of crime might react in what I consider a vindictive manner — driven to ‘get even’. I attribute that to human nature and base instinct (hence the sordid history of the death penalty!).

However, my view is that one of the responsibilities of society is to exercise its moral authority, sense of rule of law, and subscription to impartial justice — Lady Justice blindfolded — to serve as the mediator between criminal and victim. And in so doing, to rise above revenge and seek more objectively reasonable measures in the administration of justice, including decisions about severity of punishment.

In short, I don’t agree with the essay’s ending assertion that ‘Retribution . . . honours this kind of [victim’s] pain’. After all, should society ever be ‘honouring’ pain? My view, to the contrary, is that retribution stoops to dishonouring society’s principled obligation, as mediator, to consider the measured, fair, impartial imposition of justice, free from anger, revenge, and vindictiveness — the latter being, I propose, ugly responses that solve little and darken society’s moral horizons.

Keith said...

As you imply, Seth, the killing of George Floyd has tapped into a global chord with regard to the existence of pandemic racism and has helped to crystallise visions of social reform. Racism is arguably systemic in the United States, as it clearly also is elsewhere around the world.

We’ve all seen in recent days many nations’ publics taking to the street to point not only, appropriately, at the callousness and brutality of the Floyd killing — which has served as a prime accelerant — but also at what they see as their own systemic and inhuman racism toward racial groups, immigrants, and minority indigenous populations.

In my view, unfortunately societies have tended historically to lurch from one violent racist incident to the next — rightly sad and outraged, but all the while not diving deeper to understand and remedy the real root causes, instead satisfying ourselves with narrower matters like policing reform. The reasons for why, for example, we find it hard to recognise each other’s humanity and intrinsic value seem to be given shorter shrift.

My view is that only by getting to those roots will the United States and other nations have hope of vanquishing the worst of racism — a task likely to take, at the most optimistic, at least a full generation or more.

Seth Stancroff said...

Thank you, Keith, for the comments. Indeed I agree with your criticism of retribution on those grounds, and retributive justice is often rightly criticized in the way you have described.

I do not mean to argue here that retributive justice should guide state-sanctioned punishment; I instead only hope to discuss (in a much more theoretical sense) an overlooked feature of the retributive theory, which is that it is the view of punishment most in line with many individuals' moral and emotional intuitions about justice and punishment. This should not suggest, however, that these moral and emotional intuitions are the ones that should inform states and governments as they navigate the issue of criminal punishment (in fact, they are often the ones that need to be corrected for by state-run justice systems, as you point out).

Thomas Scarborough said...

I have a few observations here.

1. I felt sure that Seth was not promoting personal revenge: 'state-sanctioned punishment certainly should not be motivated by rage and vindictiveness'. But now, with regard to the importance of emotions, he seems to take a step back in his comments, distinguishing theory from practice -- which seems to me to be, shall we say academic?

2. But I think a lot of what we see today is due to the failure to properly take emotions into account in matters of justice. In my country, there are two or three lynchings a day. Not to speak of the grander scheme of things -- say where a moderate government is voted out because the electorate was more emotional than they.

3. And who is to say that the masses have not perceived something crucial to society that the well educated lawmakers, having passed through the fine filters of a sometimes arcane and dated curriculum on the way to being useful, may have lost.

4. Then, an issue of principle. Philosophically, we separate emotion from moral intuition. Emotion is, in the words of Prof. Alec Walen, 'morally dubious'. He could try repeating that at any one of the current rallies. In fact, Seth himself does what most of us do, and conflates 'moral and emotional intuitions' in his post.

5. Finally, my own position. Retributive justice may be interpreted as restorative justice. You may boast that you put out your neighbour's tooth, but you will change your perspective when your own tooth is taken. A qualification, though: that applied in a society where restraint as we know it was difficult, and that has changed.

Seth Stancroff said...

Thank you, Thomas. I think in writing "moral and emotional intuitions," I meant to go about it in the way the moral sentimentalists might. For them, emotional intuitions might indeed be moral intuitions. And you're right; many of us do indeed conflate these ideas.

Martin Cohen said...

Well, Keith mentions the "eye for an eye mindset" as though it is totally discredited - but I'm not so sure.

Speaking of "eyes for eyes", the police in France have routinised the shooting out of demonstrator's eyes, and there is no sense that they will be punished at all for this horrible abuse of their power, but in terms of justice, the person who blinds the demonstrtor should have their lives also significantly changed.

More prosaically, if someone steals $100 it doesn't seem so medieval to expect the punishment to be at least equivalent. If a policeman strangles a demonstrator to death, literal equivalence is clearly unnacceptable to modern tastes, but nonetheless the punishment does need, it seems to me, to match the seriousness of the crime.

Then there are those anecdotal stories about young criminals, who do something like steal from elderly people in the street, and are 'punished' by being sent on activity workshops, sometimes even sent on what are holidays. The emphasis being on rehabilitation, of course.

The assumption is that society can afford to 'forgive' offences, its sole interest 'really' is prevention of crimes, and revenge is an ugly emotion. As Thomas says, we want to move beyond public lynchings.

Yet perhaps the absence of a 'real punishment' in the sense of 'retribution' actually hinders justice, by weakening the other elements of just punishment too: reducing deterrence, failing to create the context for rehabilitation, and not offering victims what we might perhaps call 'psychological restitution'?

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