Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, August 22, 2012

The Problem of Deep Retribution and Rehabilitation

Prompted by an inquiry from Rick, I took a look again at Jeffrie Murphy's wonderful book, Getting Even: Forgiveness and Its Limits (2003), about which I've written a little before.  Chapter Nine, entitled "Christianity and Criminal Punishment," contains the following interesting passage about the relationship of Christianity and retribution.  But I think it also says something useful about rehabilitation.

But what about retribution?  Is it a legitimate objective on a Christian view of punishment? . . . . This depends, I think, on just what one means by "retribution."  In the philosophical literature on punishment, retributive punishment is usually understood as giving the criminal what he, in justice, deserves.  There are, however, at least six different accounts of what might be meant by "desert" and thus at least six different versions of retributivism: desert as legal guilt; desert as involving mens rea (e.g., intention, knowledge); desert as involving responsibility (capacity to conform one's conduct to the rules); desert as a debt owed to annul wrongful gains from unfair free riding (a view developed by Herbert Morris); desert as what the wrongdoer owes to vindicate the social worth of the victim (a view developed by Jean Hampton); and, finally, desert as involving ultimate character -- evil or wickedness in some deep sense (a view that Kant calls "inner viciousness") . . . .

It seems to me that there is no inconsistency between the essentials of Christianity and the first five forms of retribution noted.  With respect to the sixth, however -- what I will call "deep character retributivism" -- there does seem to me to be an inconsistency . . . . I have earlier argued that judging the very soul of another human being and attempting to decide his ultimate desert is beyond the scope of human ability and must be viewed as a task either to be left undone or reserved for God.  Human beings simply do not know enough to make such judgments with accuracy.  In addition, human beings are simply not good enough to make such judgments without hypocrisy . . . . [T]his problem grows in seriousness the greater the depth of inquiry into the inner life -- for example, I suspect that judgments of intention (and other mens rea judgments) are more reliable and safer than judgments of inner viciousness, judgments that a person is hopelessly rotten to the core.  They are safer because they do not to the same degree tempt us to cruelty and to dismissing the very human worth of the wrongdoer.

The passage is a very nice reflection on a species of "deep" retributivism that Murphy finds problematic for Christianity, but it seems to me that the nature of the critique might also pose similar challenges to a "deep" species of rehabilitation.  One of the underappreciated qualities that unites retributivism and rehabilitation (again, on certain accounts of each of these functions of punishment) is confidence in the state's capacity to conduct fairly thoroughgoing characterological inquiries, and then to act on those inquiries accordingly.  This is not a quality shared by deterrence, general or specific, which depends much less (if at all) on deep character inquiry.  The reasons for action in response to the inquiries differ, of course, but retribution and rehabilitation both depend to some extent on that basic sort of inquiry into human character -- the one in order to mete out (ultimate) justice, the other to bring about (ultimate) transformation.  But if we do not know enough and are not good enough to pursue these "deep" inquiries for retributivist ends, then it seems to me that we should likewise be skeptical about our parallel capacities to pursue rehabilitative ends. 


DeGirolami, Marc | Permalink

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It seems to me you're conflating agnosticism with scepticism, the former can leave it an open question as to whether or not any particular individual is capable of "rehabilitation." I doubt we need, in any case, "fairly thoroughgoing characterological inquiries" beyond the sort routinely found in psychological assessments involving "reality testing" and so on. All this need entail or assume, in other words, is an open-ended conception of human nature, such that one concedes that man is equally capable of goodness and evil and that character is not "fixed" or determined at birth (or in the first few years of life). Not a few psychological theories stress our developmental potential and capacities, including the possibilities for self-transformation. The same holds true for most of the world's largest religions and several historically influential philosophies. Notions of metanoia, translatio animi (a shift in one's mentality as it were) or a "changing" (mutatio) of the self or heart, "awakening," of "realization discoveries" and the like are not hard to find. Of course these same religions and philosophies suggest techniques or "ascetic" exercises that facilitate such transformation but there's no reason to think we cannot come up with a secular analogue of things. I've always thought that the accounts of Jesus in the Gospels gives evidence of his belief that any given individual, no matter their past behavior or current character-type, was susceptible to personal transformation (certainly not a few who proselytize on behalf of Christianity hold such a belief), however ignorant we may be (ex ante) as to who will in fact change or to what degree he or she may change. And of course we can cite ample empirical evidence of such changes, even if, to date, at least with regard to the criminal justice system, these have been spontaneous or not necessarily the result of any concerted rehabilitative efforts or the manifest intentions of the relevant parties. Theories and conceptions of human nature can serve, in this instance, and for better or worse, something on the order of self-fullfilling prophecies.

Posted by: Patrick S. O'Donnell | Aug 24, 2012 10:46:04 AM

erratum: self-fulfilling

Posted by: Patrick S. O'Donnell | Aug 24, 2012 10:47:53 AM

another mistake: "...a secular analogue of such things."

Posted by: Patrick S. O'Donnell | Aug 24, 2012 11:09:42 AM