I am grateful to Mark Drumbl for taking the time to provide his generous and insightful comments on my article, and also to James Stewart, both for his kind words and for organizing this discussion. I’m quite honored that James has selected my article to inaugurate this important and exciting new blog.
In this post, I respond to Mark’s critiques, which have pushed me to think hard and harder, and even to consult Google Translate. As I understand it, Mark is disappointed by my fainthearted retributivism, which he deems anemic, indeterminate, overly intellectual, and woefully lacking in hot-blooded passions. He objects that “retributive theory cannot simply become all things to all persons.”
For the most part, I am happy to plead guilty as charged. After all, the idea that retributive commitments are compatible with a wide range of policy positions about international criminal law is one of the main points of my article. In defense of this view, I will say the following. First, I believe that I am speaking the truth about retributivism. Accordingly, it is not my fault if the theory turns out to be less muscular than one might hope. Second, I don’t think it’s quite as bad as all that. There are many things that retributivism cannot do, but some quite important things that it can do.
The central point (which I am hardly the first to make) is that retributivism, by its nature, is an incomplete theory of punishment. In contrast to utilitarian approaches that appeal to a single overarching vision of human well-being, the retributive claim that punishment is justified intrinsically by the desert of the offender simply cannot provide a comprehensive metric around which to establish, order, and administer a system of criminal justice. The point is just as true at the domestic level as it is at the international level. The most obvious example is resource allocation: a commitment to deserved punishment cannot, by itself, tell a legislature how to distribute funds between health care and the criminal justice system. Nor can it tell the international community whether, and to what extent, to fund the establishment of an international criminal tribunal.
Instead, I believe that retributivism does two things. First, by specifying that justified punishment must be deserved, it imposes an important negative constraint: a prohibition against knowingly punishing the innocent. This negative constraint is not especially controversial, but even here retributive theory raises an important and problematic question: how do we know that the guilty actually deserve punishment? Mark suggests that the retributive appeal to just deserts is at root an emotional response, and I think he may be right. Does this reliance on bare, moral intuitions—ones that may well be “ignorant, biblical, and simple,”—expose a deep vulnerability in retributive theory? Quite possibly, but if I may attempt to paraphrase Douglas Husak, the alternative is even more problematic: How can we ever justify the cruelty of criminal punishment if we do not at some root level believe it is deserved? Perhaps, the very existence of criminal justice is inevitably grounded on these innate retributive emotions, whether we acknowledge them or not.
The second thing that retributivism does is to supply an affirmative reason to punish the guilty, one that appeals to the culpability of the wrongdoer alone rather than to the expected social benefits of punishment. But because retributivism is an incomplete theory of punishment, the retributive impulse must coexist with other rationales either favoring or disfavoring punishment. As a consequence, the retributive impulse to punish a particular offender will sometimes be trumped or compromised. Possible reasons include, among others, a legislative desire to fund priorities other than criminal justice; a prosecutorial judgment that limited resources are better focused on other, more culpable offenders; the ability to obtain the accused’s cooperation in the prosecution of other, more culpable offenders; an unacceptable risk of wrongful conviction in light of evidentiary shortcomings; a disinclination to reward prosecutorial misconduct that has comprised the accused’s due process rights; or, as sometimes happens in the wake of mass atrocities, a desire to support an amnesty agreement or alternative justice mechanism that may itself be justified by a variety of imperatives including the need to conserve limited resources, to end bloodshed, and to promote social reconciliation.
This second function of retributivism—as a good, but incomplete reason to punish—is what I describe as “good reason retributivism.” Although the label is my own, it reflects my attempt to distill something that is already present in retributive theory rather than to propose a novel approach to punishment. And I will venture to suggest that something of this approach appears in Mark’s own post when he maintains that he “remain[s] unconvinced that retribution can overcome the curse of selectivity in international criminal law.” In other words (and acknowledging apologetically that I may be doing horrible violence to Mark’s actual views), even if there are powerful retributive reasons to prosecute someone before an international criminal tribunal, Mark maintains that those reasons are inadequate to overcome the more powerful, overriding interest in avoiding a system of highly selective, unequal justice. (And as Mark sets forth in a terrific book, alternative mechanisms may provide a better way to reconcile these two interests).
As far as I am aware, Mark does not propose a metric for determining how much selectivity is too much selectivity. By contrast, I might argue on retributive grounds that Sudanese President Omar al-Bashir’s alleged role in Darfur atrocities involves culpability of such great severity that it is worth demanding his prosecution before the International Criminal Court (“ICC”) notwithstanding the highly selective focus of that institution. Both Mark and I may be confident in our judgments, but I doubt we can prove each other wrong. Yet these are precisely the kinds of moral judgments that people can and do routinely make based on an indeterminate but non-arbitrary balancing of competing considerations. And I don’t think that the existence of such indeterminacy is tantamount to an “endless buffet line” (however appetizing that analogy may be!).
As I explain in the article, I believe that the retributive rationale plays a powerful role in driving international criminal prosecutions, one that has repercussions throughout the system. And I believe that the retributive impulse works pretty much as Mark describes: as an intuitive and outraged call for justice. But I do not believe that embracing this impulse requires one to turn a blind eye to non-retributive values, or to what Mark aptly terms “the explosive paradoxes and dizzying quandaries of international crimes.”
There is much that I am glossing over, including the differences between various understandings of retributivism, the nuances of the international criminal justice system, and important differences among different types of institutional questions (legislative, prosecutorial, judicial etc.). I must, however, register my disagreement with Mark’s claim that “[e]ye for an eye is central to [retributivism’s] DNA.” As far as I am aware, lex talionis has no modern defenders among retributivist scholars, although Jeremy Waldron has brilliantly argued that the idea “is (fortunately) not as silly as it sounds.” The concept of proportionate sentencing is more widely embraced, but, for reasons I explore in the article, I fear it may fail to provide the degree of practical guidance that Mark desires.
Otherwise, I, for one, am not convinced that Mark and I are divided by any deep disagreement. Perhaps he will prove me wrong, but until then . . . Vive La Rétributivisme Timide!