The Illustrated Guide to Criminal Law
Chapter 5: The Three ‘R’s
Page 6: Retribution is about Fairness
Yin-yang symbol
You hurt someone—or society—so you have to be hurt about the same amount to make everything even, to restore balance, to satisfy a sense of fairness.
Torn price tag “Murder in the first degree / Made in the U.S.A. / 25 Years 5 Mos / N.Y.C. & Co.”
So when you get a 5 year sentence, those 5 years are not chosen because that’s the magic number that will deter others, mend your ways, or keep us safe until you’re no threat; those 5 years are what your offense is WORTH.
If the punishment fits the crime, then everyone feels like justice was done. There’s an inherent sense of injustice when someone’s sentence is too harsh for what he did (or too light).
Anguished mothers shouting “He won’t suffer like our kids did—it’s not fair!” as man is executed in electric chair.
I don’t see retribution as being entirely separate from deterrence, they are connected in some subtle ways.
Consider a mother telling her two sons, Jack and Jim, “you mustn’t fight. If any of you hits his brother, I’ll smack him!” Then Jack indeed hits Jim. Now, the worst thing their mother can do is go back on her threat and say to Jack, “alright, I’ll let it pass this once, don’t do it again”. It’s even worse than not threatening to punish them in the first place.
It’s not only that Jim’s sense of fairness and justice is hurt. The real harm here is that, in Jack’s mind, hitting his brother will not even register as something wrong. Children who misbehave are punished. Jack wasn’t punished. Ergo, Jack did not misbehave. Sure, the mother can *say* “what you did was wrong”, but actions speak louder than words.
On the other hand, if the punishment is so severe that all offenses merit the same penalty — if the law is Draconian — then there’s hardly anything to lose. You just focus on avoiding the punishment or, worse, pulling off such a large-scale crime that it’s worth the risk.
We (sadly) need properly escalating retribution to even HAVE a moral compass of right vs wrong, and that counts as internalized deterrence.
I’ve heard an argument that punishment (especially capital) is “really” a sacrifice to restore the cosmic balance; and for this purpose the guilt of the person sacrificed is not relevant. Such atavism could explain why prosecutors and (often) victims’ families object so strongly to letting convicts go when they’re later found to be factually innocent.
The page before this (introducing retribution) seems to be missing.