Adjectival Retributivism: A Tale of Theory as Empath

Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law.

Sasha Greenawalt rehabilitates retribution as a justification for punishing people who violate international criminal law. I say “rehabilitate” because Sasha begins with the observation that an “anti-retributivist strain” has seeped into conversations about how to deal with perpetrators of genocide, crimes against humanity, and systematic war crimes. Sasha wants to stanch this strain by cleansing retribution of its undeserved stain.

Sasha hopes to make retributivism relevant in a context where conversations about the normative basis of punishment for extraordinary crimes are vividly diversifying. Penological rationales such as expressivism, positive general prevention, and restoration have entered the discursive frame. The international tribunals tout their deterrent potential, as well as other utilitarian goals (which border on the utopian) such as reconciliation, peace, and ending impunity.

Retribution has its skeptics. I am one of them. Sasha’s excellent work has pushed me to think twice, think differently, and think better, about things. Fundamentally, however, I remain unconvinced that retribution can overcome the curse of selectivity in international criminal law; I am unsure how it squares with the extraordinary nature of jus cogens violations and the cauldron of collective violence; I am unsettled by analogizing too closely from the regulation of ordinary crime at national levels. But all this is beside the point. These debates will not be resolved here. They may not be resolvable. People have been quarrelling about the purposes of punishment and the role of mercy since time immemorial. These quibbles pop up in all places, whether intellectual, vulgar, aesthetic, popular, or political.

I am more interested here in the dialectics. How does retributive theory, which Sasha enlivens, approach and contribute to the conversation about the normative basis of international punishment? How does it seek to call the question, presumably in its favor? What arguments does it marshal?

Sasha responds to “anti-retributivism” by demonstrating that retributive theory is heterogeneous and supple. He rightly resists those who essentialize retribution as primitive or instinctual or crude. He chafes at the bad rap retribution gets in certain quarters. For Sasha, there’s a lot more to retribution than harshness. He shows how retributive theory is nimble, flexible, erudite, and sophisticated. It is so versatile, in fact, that it can accommodate many of the concerns central to utilitarian, and other, justifications for punishment. Here, Sasha takes the reader on a journey through an alphabet soup of adjectives. We learn of consequential retributivism, minimalist retributivism, political retributivism, threshold retributivism, maximal retributivism, and contractarian retributivism. Sasha delivers good reason retributivism. We learn that retributive theory is so capacious that it can justify general amnesties. It can even justify complete impunity!

It is invigorating to peel back the layers, and embrace the hybridized possibilities, of retributive theory. I’ve toyed with this myself in terms of agentic retributivism. By this I mean measuring the culpability of an accused not by the harm caused or malevolence exercised in absolute terms but, rather, by how much harm the perpetrator caused or how much malevolence the perpetrator exercised in light of the social spaces that he or she occupied at the time of the commission of the offense. Interest in this question stems from my concern about how international criminal law should approach compromised perpetrators: rank-and-file soldiers, low-level militia members, militarized youth, and persons who may not have killed directly but told the killers where the oppressed were hiding.

But retributive theory cannot simply become all things to all persons. At some point, all these clever variants of retribution become more about the prefix adjective than the noun. Consequentialist retribution in particular strikes me as a poignant example. The end-game of these concatenations is that retribution risks becoming gutted, or so abstracted, that its raw value as normative justification evaporates. What is gained by becoming an endless buffet line? An account for all seasons?

Also hobbled is the ability of retribution to serve as a practical principle to apply in establishing the quantum of sentence for an individual defendant. This latter point is very important. We should welcome conversations about the normative basis of a punishing institution. But once that institution exists, and it begins to punish individuals, a need arises for principled, clear, and consistent sentencing. Accessibility matters. When retributive theory has so many competing compounds, what is a judge to do and what is a convict to expect?

If retributive theory becomes an empath that absorbs and accommodates everyone’s wishes and needs – even those that contradict its central ethos – then retributivists allow themselves to be defined by others. General debates about the justification for punishment simply morph into feuds within retributive theory about the justification for punishment.

Over-intellectualizing retribution reminds me of the fate of modes of liability at the international tribunals. James Stewart and Leila Sadat have chided the staggering confusion. Modes of liability – rendered both fulsome and bare by relentlessly inordinate determinations – remain clumsy and incoherent, thereby baffling the laity and frustrating survivors in post-conflict transitions.

Call me ignorant, biblical, and simple. Or homely. But for me, retribution is about the emotions.  It is about just deserts and resetting the moral balance following an act that tears the communal fabric. Retributivism is about voicing outrage; determining the culpability of the perpetrator and responding in kind.  Eye for an eye is central to its DNA.  Retributivism means anger, pain, and rectification channeled through a dignified legal process. It’s about expiation. It’s visceral. Why run from this? Staying the hand of vengeance does not require becoming the Tin Man.

When rules become defined by their exceptions, when principles become overrun by a cacophony of qualifiers, then the core fades. Retributivists might be better off sticking with their core. If their cri de coeur doesn’t fit with the explosive paradoxes and dizzying quandaries of international crimes, then tant pis – so be it.