Philosopher Erin Kelly on the Failure of Retributive Justice

October 9, 2019
Erin Kelly, professor of philosophy at Tufts University and author of "The Limits of Blame: Rethinking Punishment and Responsibility” (Harvard University Press, 2018), explains how retributive justice exaggerates the moral meaning of criminal guilt, normalizes excessive punishment, and distracts from shared responsibility for social injustice.
"The practice of criminal justice is legitimate only for its contributions to the possibility of a democratically just society," Kelly says.
Her talk was sponsored by the Rev. Michael C. McFarland, S.J. Center for Religion, Ethics and Culture and part of the Philosophy Colloquia at Holy Cross.

[@amurali284]

Watching up to the 53rd minute, Kelly talks about how being socially disadvantaged reduces culpability. Even if this is true, this does not count against retributive justice. In fact, talk about culpability only makes sense if desert was possible. She also makes the claim that people who are subject to systematic injustice have no reason to accept a system which punishes them for law violation because they do not receive the benefits of social cooperation. This elocution equivocates between two claims. 1) People who are subject to systematic injustice have no reason to accept a system... because they do not receive all the benefits of social cooperation that they are owed. 2) People who are subject o systematic injustice have no reason... because they do not receive any of the benefits of social cooperation. The problem with the first claim is that people who receive some but not all the benefits they are owed still have some reason to accept a system of punishment. The only people who are justified in rejecting the legal system as such are those who are so disadvantaged they might as well be living in a Hobbesian state of nature. I doubt that very many in the US actually qualify. The problem with the second claim is that it is simply false. People can be subject to systematic injustice while receiving a good chunk of the benefits of social cooperation. This would still be less than what they're owed. Consider that women in the US earn 80% of what men do for the same amount of work (This figure could be more or less depending on the field and other aggravating/contributing factors). This is a systematic injustice since women do not get all the benefits of social cooperation that they are owed. However, they still get some (i.e. about 80% on average). It doesn't follow that they have more reason to break the law than men or even if they have more, it does not follow that they have sufficient reason to break the law, especially those laws which would involve violating others' rights.

[@amurali284]

I understand that this talk is based on a book and I expect (and home) that Kelly is a lot more careful in print. Having read her other work, she usually is. Judging purely on the basis of this talk alone, she has not successfully mounted even a halfway plausible argument against retributivism. Not only that she does not address an obvious rejoinder, namely that even if there are other morally attractive considerations for justice (e.g. rehabilitation, restoration etc) a pluralistic conception which includes retributive considerations among others would also be able to address her concerns.

[@amurali284]

So, just watched up to 25th minute where she has just finished her first objection to retributivism and addressed the objection. Her first objection, basically, is that retributivism is not the right justification for punishment because the American judicial system, which she earlier claimed is the most punitive in the world, does not live up to it. But this is clearly a bad argument. After all, the US could be less punitive with regards to those whose culpability is diminished. She responds to this by saying that deterrence, sequestration and rehabilitation are still things which need to be carried out. Especially with the last two, it is possible, as Kelly herself admits to use non-punitive measures for this. But this is fully compatible with retributivism. Punishment is purely for backward looking stuff and forward-looking concerns are dealt with by non-punitive means (e.g. education, treatment etc). Even if some of these things could only be dealt with by punitive measures (e.g. deterrence) it is question begging to assert that 1) levels of punishment under a retributive scheme are too low to provide adequate deterrence and 2) it is permissible to punish people who are not liable for punishment (due to lack of culpability) in order to achieve the forward-looking aims. Kelly needs to make both assertions in order to defend her first objection to retributivism.

[@amurali284]

Now, I've watched up to the 49th minute and her second objection is not much better. Her second objection, roughly, is that criminal justice is to be subordinated to distributive justice and further, that distributive justice has no room for desert and hence no room for retributivism. However, the first claim is simply asserted and while she tries to offer some argument for the second claim, the argument isn't that great either. It is not at all obvious that criminal justice is entirely subsidiary to distributive justice. Why think that this is true at all? An alternative is that they are distinct domains which are united only in that they are each concerned with giving to people what they are owed. In fact, she gives no argument to think why the alternative to her view, which is the default view of society, is mistaken. In fact, we might make a reciprocity based argument to argue otherwise. The Rawlsian account of distributive justice is founded on the value of reciprocity. However, reciprocity must have a backward looking aspect or social cooperation would not be possible. We must be able to punish and reward people for what they have done (not for who they are) in order for stable social cooperation to be possible. The success of Tit for Tat strategies (especially versions which are sensitive to who defected first) in prisoner's dilemmas provides us with good reason to think this is true. Even if criminal justice is subsidiary to distributive justice, it is not obvious that people cannot deserve things. The mere fact that people do not deserve their starting position in life does not mean that they do not deserve the outputs of their efforts. Even if they do not deserve all of it, they may still deserve more of the social product for contributing more to the social product. And likewise, people might deserve a deprivation of some of their rights because they have illicitly deprived people of their rights.