Chapter 5 of Sher’s Desert, “Deserved Punishment,” is a desert-based defense of retributive punishment intended to defend the claim that “persons who have acted wrongly…deserve to be punished.”

All of the participants in our Zoom discussion agreed that this was the weakest of the five chapters we’ve read so far, and all of us (I think) agreed that Sher’s argument failed to establish its intended conclusion.  But as half of the group consisted of retributivists, and the other half of anti-retributivists, we ended up disagreeing about the exact nature of the failure, and then ended up disagreeing with one another about punishment itself. The retributivist-friendly participants were apt to say that Sher failed to establish a claim that happens to be true, or at least plausible; the anti-retributivists were apt to say that it was no surprise that he failed to establish a claim that happens to be unmotivated and false. We then ended up disagreeing about how to define retributivism, and about the plausibility of the motivation behind retributivism, however understood. The two camps divided in predictable ways.

I’m going to keep this summary relatively short, posting it more to serve as a placeholder to discuss the issues dividing the discussants than to lay out or litigate the details of Sher’s own argument. Much of Sher’s discussion consists of explorations of the strengths and weaknesses of retributivist authors from Kant into the mid twentieth century (Hegel, Moore, Ross, Herbert Morris, Richard Burgh, Gertrude Ezorsky). Though interesting, I’m going to skip the entirety of this historical discussion and focus exclusively on Sher’s own self-standing argument for retributivism.

The one thing we need from this historical discussion is the fact that Sher takes his own argument as an instance of what he calls a benefits-and-burdens account of punishment. The basic idea is that the wrongdoer, in committing a wrong, takes on greater benefits than those he deserves, free-riding on burdens–the burdens of moral constraint–that we’re all obliged to uphold. When he does this, he deserves punishment. Punishment so conceived redresses the maldistributed balance of benefits and harms created by wrongdoing, restoring that balance to its proper equilibrium. This is, obviously a rather metaphorical characterization of the issue. It’s not clear to me that Sher ever really gets past the metaphors just invoked.

The basic idea is this. Human society requires a system of norms instituted in a system of liberty. So conceived, the system of liberty protects us against the harms imposed by wrongdoers, and in that respect constitutes a benefit to all of us. But it likewise imposes constraints on us, and in that respect constitutes a burden for all of us. Under ideal circumstances where wrongdoing didn’t exist, we would all equally uphold the (qualitatively equal) burdens of the system of liberty, regarding the costs it imposes on us as sunk costs, and enjoying the benefits thereby produced. Wrongdoers in effect refuse to accept the burdens of moral constraint as a sunk cost. They violate the autonomy and rights of others, imposing harm on them. In doing so, they flout the burdens they’re obliged to uphold, and in so doing, “gain extra liberty” to which they’re not entitled. Meanwhile, their victims are harmed in the process, at least in part by losing the baseline liberty to which they were antecedently entitled. The result is, in effect, an error in moral bookkeeping that requires correction. That correction is supplied by punishment.  

How exactly does punishment do that? Most of us found Sher’s account of the matter unclear, but the basic idea is this. Suppose that Smith violates Jones. In doing so, Smith comes to enjoy an undeserved benefit, the “extra liberty” gained through the violation of Jones’s liberty (an “extra liberty” that Jones, in adherence to the system, has himself foregone). Meanwhile, Jones loses the portion of liberty to which she was entitled, the portion lost through the act of violation itself. Smith therefore has more liberty than he deserves, Jones less. If we’re to restore the prior morally legitimate balance, something must be done to reverse this state of affairs. The thing to be done is to take from Smith a quantity of extra liberty that restores the prior balance. We can, I suppose, imagine incarceration doing this. But it takes imagination.

One internal problem Sher’s account faces is that some offenders may have started their lives in misfortune. Meanwhile, their victims might have started their lives in good fortune, and continued to do so. In cases like this, crime itself seems to redress a disequilibrium of moral desert. Suppose Smith grew up in misfortune, and Jones in good fortune. Smith didn’t (ex hypothesi) deserve his misfortune, nor did Jones (ex hypothesi) deserve hers. When Smith and Jones encounter each other, luck has already put their just deserts out of equilibrium. Smith has had greater burdens, Jones lesser ones. Suppose now that Smith commits a crime against Jones. Why doesn’t Smith’s crime do exactly what Sher takes punishment to do? Why doesn’t it redress the imbalance that obtained at first encounter? Put another way, once Smith commits the offense, why think that he ought to be punished for it rather than left alone to enjoy its fruits?

Sher’s main argument here turns on the categorical distinction between bad luck and wrongdoing. Bad luck is underserved, but not a violation of moral norms, hence not morally wrong. Wrongdoing is not just undeserved by the victim, but a culpable violation of moral norms, wrong by definition. The justification of punishment lies in its redressing a wrong done in and to the moral order, not the world as such. So it’s a category mistake to think that crime can be justified as an attempt to redress the “wrongs” done by misfortune. Regardless of his misfortune, however undeserved, a wrongdoer does his victim wrong in taking an extra measure of liberty. Regardless of the undeserved misfortune, the moral fact remains that the wrongdoer has culpably taken this extra measure of liberty. Likewise, the fact remains that the victim has lost it. So the imbalance that requires redress is this specifically moral imbalance, one not intrinsically tied to natural facts about misfortune divorced from agential culpability.

One problem with Sher’s account of punishment, as with many others, is the unclarity of the subject matter. Is he discussing all culpable wrongdoing, and so, all forms of punishment of that wrongdoing, or is he restricting discussion of the topic to crime and by implication state punishment? Various interlocutors adduced different bits of text to prove one or the other interpretation, but on the whole, Sher’s discussion is simply unclear on the issue. If he’s discussing crime, how does he define it? Does he include victimless crimes? Do any torts or administrative legal infractions count as crimes in the relevant sense? The issues aren’t addressed.

Many if not all discussants (influenced perhaps by Aristotle and in his own way, Locke) took issue with the idea that acceptance of the binding force of the system of liberty is properly described as a “burden.” Likewise problematic was the idea that in violating someone’s rights or harming them, we’re taking an “extra measure of liberty” from them, a claim that presupposes a more controversial conception of liberty than Sher seems to acknowledge. And equally problematic was the essentially metaphorical idea that punishment in the conventional sense (e.g., incarceration) does anything to restore the “balance” disrupted by wrongdoing. (A not entirely fair but not entirely unfair criticism: incarceration often creates increased opportunities for wrongdoing, a fact that Sher nowhere acknowledges or discusses. It may or may not be a defense of Sher that he doesn’t in fact discuss incarceration, which absolves him of having to defend it, but also leaves his discussion very abstract, and hard to connect with punitive measures in the real world.)

Not discussed in the online discussion but still pertinent is Sher’s failure to give an explicit account of why we (whoever “we” are) are morally obliged to restore the balance disrupted by wrongdoing. The puzzle arises in acute form if the topic is wrongdoing generally. If so, Sher’s view entails that every act of wrongdoing, legally adjudicable or not, requires redress by some unspecified agent(s) tasked with a cosmic act of moral bookkeeping. But that seems implausible. Even if the issue is restricted to criminal wrongdoing (or some species of wrongdoing), the task of responding to crime (or illegality) has many facets, and it’s not clear why redressing some abstract moral balance must have pride of place among them.

It’s worth noting that Sher makes no attempt to prove that retributive punishment as he conceives it accomplishes any of the traditional non-retributive functions of law enforcement. It doesn’t incapacitate, doesn’t deter, doesn’t rehabilitate, and doesn’t compensate. Retribution is its own self-enclosed moral universe, governed by its own moral norms, deontically divorced from other practical considerations, which it claims to override. To paraphrase the Duke of Norfolk in Robert Bolt’s A Man for All Seasons: it seems disproportionate, goddammit.

Like all retributivists, Sher fails to ask why this self-enclosed world of moral norms has the authority it claims to have. Suppose we confront an act of wrongdoing: Smith violates Jones. Retributivism abstracts away from the event of wrongdoing to focus entirely on the wrongdoer. It then insists that the wrongdoer must get what he deserves, namely punishment. There are questions about how punishment is to be defined, whether it inherently requires the imposition of deliberate harm, or mere suffering, or a mere cost, etc. But one deeper question is why the unit of normative concern is the wrongdoer rather than the wrongdoing. Wrongdoing is an event produced by a multilateral interaction. What justifies the obsessive fixation on one agent involved in this bilateral interaction, the total disregard of the other(s), and the total disregard of the event produced by their interaction? If our subject is desert or moral desert, then it seems natural to think that the question is how to apply the norms of justice to all parties to the event. The two main parties include the wrongdoer and his victim. So we might expect someone interested in moral desert to ask what both of them deserve.

Yet retributivists flout this expectation. On their view, as far as moral desert is concerned, the only salient consideration appears to be the harm deserved by the wrongdoer in virtue of his wrongdoing. I would challenge any retributivist to produce an argument for why this harm is to be visited on the wrongdoer, and in what form, in a way that disclaims any and all reliance on compensation to the victim. What exactly is the point of harming the wrongdoer if doing so bears no relation whatsoever to the victim? Why exactly does morality demand that we harm people simply to harm them, and with no further aim beyond that?

Retributivists often claim that the issue of rendering desert to wrongdoers and rendering it to victims are “two separate issues.” But this is more puzzling than they seem to realize. For if wrongdoers are to be punished, but victims are also to be compensated, the most obvious candidate for coughing up the compensation is the wrongdoer. The result of treating wrongdoing as involving two separate but conceptually unrelated issues is two parallel systems of rectification for each offense, operating both cumulatively and at cross-purposes with each other.

Suppose that Smith violates Jones. If there are “two issues” here, one of punishment and one of compensation, then Smith ought to be punished and ought to compensate Jones. Note that if the punishment and compensation really are two separate issues, we cannot legitimately tailor the demands of the one to the other. Each involves a separate normative source of demands, and each separate source must be satisfied for justice to be done. Thus if retributive justice says that Smith deserves ten years imprisonment for the offense, and a separate theory of compensation says that Jones deserves ten years’ worth of Smith’s labor, then Smith will owe more than either account says that he deserves.

Further, since retributive justice harms the wrongdoer, and compensation requires productive efficacy on the wrongdoer’s part (at least as much efficacy as is required to pay the compensation owed), retributive justice operates at cross-purposes with compensation: in harming the wrongdoer it undoes, in advance, precisely what compensation requires for its effectuation (or harms, in retrospect, whatever gains might have been brought about in the wrongdoer by the act of compensation).

To regard punishment and compensation as “two different issues” is either to regard systematic double jeopardy as a necessary feature of the response to crime, or to drop one of the “two” considerations in play as de facto irrelevant, and in practice to focus on the other as the governing consideration. In practice, retributivists have always disregarded victims and focused on wrongdoers. It is telling that there is no chapter in Sher’s book that deals with what victims are owed. It’s a platitude that wrongdoers deserve punishment, but apparently not a platitude that victims deserve compensation. Likewise, it’s a platitude that in confronting injustice, our unit of concern is the wrongdoer; it’s not a platitude that in confronting injustice, what we confront is a wrongful act and the harms it produced.

I’m not convinced, whether by Sher or anyone else, that retributivism makes any sense. Indeed, I’m inclined to say that those who begin an account of desert with retributivist intuitions are begging the question against non-retributivist conceptions of the response to moral wrongdoing, and ought to be asked to leave their retributive intuitions at the door.* I doubt they will, though. It’s a vexing question what they deserve for this infraction.

---

*I get this last phrase from Alasdair MacIntyre, who used to demand (in his trademark Scottish fishing village brogue), that we leave any “moral intuitions” we had “at the door” of his grad seminars on ethics. He later expanded this proviso to modal intuitions, which somehow seemed extreme, as was MacIntyre’s special animosity for haecceities and other metaphysical wrongdoers.

I’ve written what I regard as an anti-retributivist account of punishment here, ascribing it to Ayn Rand. Though sketchy, I stand by it. In general, I subscribe to what has somewhat misleadingly been called a debt-based retributivism of the sort defended by Daniel McDermott. See McDermott’s “The Permissibility of Punishment,” Law and Philosophy 20 (2001). It’s not clear to me that McDermott’s view is best described as a form of retributivism, but that’s ultimately a semantic matter; I’m sympathetic to the view itself. I was disabused of my own complacent commitment to retributivism by David Boonin’s masterful The Problem of Punishment.

Roderick Long’s “The Irrelevance of Responsibility,” Social Philosophy & Policy (1999) is another stimulating critique of retributivism, one that pre-dates Boonin’s by almost a decade.