Q&A: Punishment
Punishment
Question
I never really understood what people mean when they say that someone “deserves” punishment. There are several purposes of punishment that seem sensible to me: deterrence, education, preventing danger. “He deserves it” for what he did just sounds like plain revenge.
In the following quote of yours (post 47), it seemed that you agreed with me:
“In the discussion surrounding the early release of Moshe Katsav, this confusion came to expression in truly absurd ways. Some argued that he had ‘paid his debt to society’ (an absurd expression in my view).”
But a few lines earlier you wrote:
“As for someone who was convicted, the situation is much simpler. Here there is clear justification to punish him, both because he deserves retribution for what he did (after all, he already committed the offense) and because the danger he poses is fully proven and completely clear (unlike a mere suspect).”
What do you mean by “retribution for what he did”? Seemingly reward and punishment are matters only for the Holy One, blessed be He, no? As you yourself wrote in that same post: “Retribution and vengeance are the business of the Holy One, blessed be He.”
In short, I didn’t understand your view, and I didn’t understand the common view.
Thank you!
Answer
Throughout the entire column I wrote that there is definitely room for a concept of retribution. Even in that very sentence you quoted I wrote this:
It is important to understand that there is no necessary contradiction between the different approaches (deterrence, protection, sanction, and others as well). Our punishment policy ought to be based on a combination of all of them together. The consideration of severity is rooted in punishment as retribution, but the consideration of protection can justify extending the sentence in order to protect society. On the contrary, I would expect the punishment in our legal system to be aimed primarily at protection (and perhaps also deterrence), and not at retribution. Retribution and vengeance are the business of the Holy One, blessed be He. What is incumbent upon us is to protect society from those who try to harm it.
From this you can understand that the intent of the second-to-last sentence is that retribution is primarily the concern of the Holy One, blessed be He, and not His alone.
The common view, and my view as well, is that a person deserves retribution for his actions. But that is only one of the considerations in punishment. And even when speaking about retribution, one can speak either about providing legitimate catharsis to the victim or about retribution in its metaphysical sense. The second conception of retribution (the metaphysical one) is less plausible in a secular world.
Discussion on Answer
Very true. It seems to me that I wrote this here (perhaps in column 47 on punishment), that retribution is the justification for imposing a deterrent punishment. If someone does not deserve retribution, then even if punishing him would achieve deterrence, there is no justification for punishing him.
Even in a view according to which punishment exists only for protection and deterrence, there are cases where retribution is what gives legitimacy to punish at all. For example, suppose we are dealing with an elderly criminal who poses no danger to society, but there is a need to deter other criminals who might follow in his footsteps. Without society having justification to punish the old man by virtue of a right of retribution against him, we could not punish him, because there is a problem here of saving oneself at the cost of another person’s life—the public achieves deterrence of others by harming a third party, namely the old man.