Vanderbilt Law Review


Dan Markel

First Page



In the last few years, scholars and policymakers in the area of criminal justice have focused an increasing amount of attention on two topics. The first is the retributivist theory of punishment ("retributivism");' the second is the development of alternative sanctions to the orthodoxy of incarcerating criminals in publicly managed prisons. This Article is about what connections may properly be drawn between what justifies punishment and how we actually go about punishing offenders.

A preliminary word on retributivism may be helpful. Retributivism is a theory about retribution, and retribution's features, or its definition, may be understood in either a weak or a strong sense. The weak sense asserts that a criminal may be punished be- cause, and only because, in some sense he "deserves" that punishment, and that punishment should be meted out in proportion to the wrong committed and the blameworthiness of the offender.

The strong sense incorporates the same desert and proportionality assertions, but also imposes an obligation: the criminal must be punished, regardless of the consequences. Many people attribute the strong thesis to Kant, and, without doubt, some of his most famous writings support that position.

The recent scholarly and policymaking interest in retributivism stems in part from negative reactions to problems associated with recidivism, which indicate the failure of theories based on the specific deterrence or rehabilitation of the offender." Yet retribution's renaissance has another explanation: the theory has a stronger rationale than it once seemed to have. For many years, defenders of retribution offered little justification for the basic retributive notion that criminals should be punished because they deserve to suffer for their wrongdoing. They thought the concept of desert was self-evidently attractive. Critics charged that when retribution is characterized this way, the theory does not offer much to elucidate why this intuition should be followed. It seemed that one could either agree with it or not. Those who agreed with the intuition were charged with having an insatiable psychological drive to exact revenge on behalf of victims or to express disgust at the wrong for the sake of communal solidarity.