When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten" sentences, only career felons and those convicted of the most serious crimes were candidates for the sentences they justly deserved. The problem was not all theoretical; the chief difficulty was the simple lack of custodial space. With the city jail at Riker's Island bulging at the seams and prison space upstate scarce, the situation could best be described as get-out-of-jail-free for all but the most dangerous offenders.
Most people, however, were furious about crime and seemed to have collectively decided that they would do whatever was required to retake the streets, the parks, and the subways, almost all of which were hazardous after dark and some of which continued to be dangerous even during the day. This "get-tough" attitude towards crime matured shortly after Charles Bronson, as Paul Kersey in Death Wish, attempted to single-handedly eliminate crime from New York's streets. (1) Hamstrung by apparently silly rules of constitutional etiquette and bureaucratic sclerosis, the police were eclipsed in the mind of the public by the cold-blooded Everyman, bound only by the law of the jungle and some elusive sense of justice. (2) Ultimately, popular demand required greater sentences for career criminals, a corresponding increase in prison capacities, and more police officers patrolling the streets.
I do not mean to criticize the results of the aggressive policies adopted during that period. But I do mean to argue that deterrence and incapacitation are not adequate bases for sentencing those convicted of crimes. Neither, ultimately, is rehabilitation. These goals may contribute to a sound account of punishment--they may be secondary aims of punishment--but none can, on its own, morally justify punishment. (3) Only retribution, a concept consistently misunderstood or entirely forgotten during the time I practiced criminal law, justifies punishing criminals.
My aim in this paper is to present retribution as the morally justifying aim of punishment. The need to do so is well demonstrated by a dreary episode from my experience before a certain judge in the New York City Criminal Court. Also a professor at a local law school, this judge was known as a notoriously soft sentencer; indeed, he seemed to have missed his calling to either social work or psychoanalysis. Near the close of one particularly frustrating day in his courtroom, I recalled a principle of successful debate whereby one embraces the stated goals of the opposition and then explains that his proffered means are the best means to achieve those goals. Consequently, during sentencing, I argued that the best way to "help" this particular defendant was the distinctive way that criminal justice, insofar as it meant to "help" defendants at all, characteristically helped them: not by sending them to some bogus program, but by punishing them. The accused had incurred a debt to society which he had to repay. By punishing the defendant, the judge would set things right between him and the community. The judge said nothing, instead seemingly coming unstuck in time. His blank, uncomprehending stare struck me much as the empty look of a lobotomized bovine: vacant, confused, and unknowing. I had clearly gone beyond his experience, and beyond that of most sitting judges at that time. I suspect that many people fail to understand the concept of retribution even today.
I. COMMON MISCONCEPTIONS ABOUT RESTITUTION
First, retribution is not lex talionis, the law of retaliation, or "an eye for an eye." (4) A few societies may have tried to apply such a norm literally, but I doubt that any has actually done so consistently. Rather, societies typically deprive criminals of human resources--time, limb, life, or money--which have no relation to the particular criminal harm. …