Retribution, Courage, and Self-Respect

(This is my last post: Big thanks to Thomas and all the Flickerers who joined into these discussions.  It's been an interesting and challenging month.   Don't forget to listen to the Very Bad Wizards Podcast! On to the post...)

Defenders of the standard retributive model often talk as if the punishment of wrongdoers by itself restores the self-respect of victims.   Retributive punishment, they say, sends a message to the offender and society that the victim is a person, that he or she has rights that cannot be violated.  This may be true in some imagined world of Kantian idealists, but it has no basis in real life.  As the psychologist Dale Miller has argued, the way we respond to insults affects our self-image and our image in the eyes of others.  The failure to respond can further diminish victims, it can mark them as cowards in their own eyes and the eyes of others.   

Moore's book features a lot of talk about cowardice, but almost none about courage.  This is because the standard retributive model leaves little room for courage to express itself.  Yet there's a strong connection between self-respect and the virtue of courage.   Many cultures active shun third-party punishment for precisely this reason: it's considered dishonorable for victims not to retaliate themselves.

You can see this on a smaller scale on the schoolyard.     Consider two cases of moderate bullying: in one, the bully victim fights back; in the other the victim reports the bully to the school principle.  Our emotions that approve of fighting back are responding to the victim's courage and sense of self-respect.  Even bully victims that lose fights can gain the respect of other classmates and sometimes even the bully himself.

Naturally, the risk of retaliation has to within reasonable limits--if you fighting back against a bully could lead to serious injury or death, then obviously it's not the right course of action.  But if the risk is relatively minor, there's a clear sense in which the best and most honorable course of action if you’re a victim is to fight back yourself and not have someone else fight your battles for you.  

Now I know from experience that people will object to this and loudly.   They'll say that this is precisely what the criminal justice system is designed to prevent.  After all, isn’t the main reason we cede the role of punisher to the state to prevent personal retaliation and vigilantism?   The answer is yes, but only in a specific sense.  Society has an interest in taking the role of punisher from the victim.   But the reasons don't have much to do with justice: they're more practical in nature.  For one thing, there's often too big an imbalance in power.  Vigilante justice can also lead to escalating feuds and considerable collateral damage.   Nobody wants a city of full of Charles Bronsons or Bernard Goetzes or Hatfield-McCoy style blood feuds. 

Maybe this is true in the schools too.  If Sam the bully beats up Andy in the cafeteria, it may be best, all things considered, to let the school principle determine the proper punishment for the bully, suspending or expelling him.  But we have to recognizes that Andy suffers a cost by not striking back himself.   Crime victims can suffer similar costs when their cases are handled entirely by the state.  A maximally just approach to criminal punishment has to consider the interests of crime victims and grant them the opportunity for restoring self-respect while at the same time keeping order and a commitment to roughly proportionate punishments and the rule of law.   The standard retributive model fails to do this.

The restorative justice model, by contrast, has the resources to provide this opportunity.  I've mentioned the Norweigian criminologist Nils Christie before on this site.   Christie is the godfather of the restorative justice movement.  There's a passage in his paper "Conflicts as Property" that completely shook up everything I thought I believed about punishment.   In the paper he argues that our approach to criminal justice, focused as it is on impartially dishing out impartial just-deserts, "steals the conflict" from  the parties who are directly involved.  He writes:

The victim is a particularly heavy loser in this situation. Not only has he suffered, lost materially or become hurt, physically or otherwise. And not only does the state take the compensation. But above all he has lost participation in his own Case.  It is the Crown that appears in the newspaper, very seldom the victim. It is the Crown that gets a chance to talk to the offender, and neither the Crown nor the offender are particularly interested in carrying on that conversation. The prosecutor is fed-up long since. The victim would not have been. He might have been scared to death, panic-stricken, or furious. But he would not have been uninvolved.  It would have been one of the important days in his life. [My italics]

The last part of the passage is crucial.  When we participate in our conflicts--in a mediation session with the offender--we may well be scared to death, panic-stricken, or furious.  But we'd have to overcome our fear or blind fury.  We'd have to face our victimizers, look them in the eye.  Maybe we wouldn't have the courage.  I have no idea how I would react if I was a victim of, say, a violent crime and I had to face my offender in some sort of mediation process.  But I want to know.  Not enough to make it worth suffering a violent assault of course.  But one of the few silver linings would be an important self-discovery that would go a long way toward recovering self-respect I'd lost.  

And the virtues of participation go beyond courage and self-discovery.  The interaction in restorative justice offers opportunities for both parties to express other virtues--empathy, compassion, the ability to recognize the humanity in one another.  You may still hate the person who wronged you and the offender may still have contempt for you.  There are no guarantees. No matter what though, both victim and offender would have to deal with real human beings.  They'd confront a complexity that can't be captured in our standard ways of addressing criminal wrongdoing.  

I'm convinced that our particular judgments would favor outcomes that allowed for this kind of interraction.  And the emotions producing them are virtuous, not a trace of ressentiment or failure to confront the evil in the world.  If I'm right about the judgments and their virtuous character, then Moore’s own methodology—arguably the most plausible way of defending retributivism—would lead to a retributivism that incorporates significant restorative elements.  

Comments

[Eddy Nahmias]

I like the idea of allowing victims some significant role in the punishment process, but I'd like to hear more about the details, and what makes a process count as restorative rather than retributive. When Andy fights back against the bully Sam (nice to pick the name of my son!), any intuitions we have that justice is being served seem based on retribution more than restoration. Restoration, as I understand it, would involve the principal getting Andy's lunch money back to him. When Andy manages to knock down Sam to the cheers of his classmates, it seems a paradigmatic case of Sam's "getting what he deserves."

So, what do you have in mind when you face down your attacker in the mediation session? One thing is for damn sure. You won't be thrown in there alone to try to kick his ass. The state will be protecting you. And you won't be giving him what he deserves, unless perhaps you want to suggest that he is held down by the state's tough guys so you can whip him (but even so, it's not the same as Andy doing it on his own--indeed, I lose the warm-fuzzy intuitions about the bullying case if the principle holds down Sam while Andy pummels him).

So, I don't see how to make the case of your confronting your assaulter analogous to the case of Sam and Andy. The question for you is what the criminal justice could set up that would "capture" whatever warm-fuzzy intuitions we get from the bullying case?

(Thanks for a great month of posting, Tamler! I've enjoyed it, even if I couldn't participate as much as I would have liked. And I encourage everyone to listen to Very Bad Wizards. Last night, stuffed with T-day and with the family asleep, I listened to your latest episode on Josh Greene's book, and I actually learned one thing.)

[Robert Allen]

No way, not even close; just one more product of your obsession with mob movies (which, BTW, I share: GF 1 or 2?). First off, what about females: no one expects them, nor should anyone expect them, to prove their courage via the performance of retaliatory acts. I would agree with you if we were talking simply about a schoolyard and boys: there you either 'let it go' or settle matters with your fists. But, come on, things change seriously when we grow up and enter society. (In college the first lesson I learned was from reading Aeschylus' Eumenides: the horror of blood feuds and how Western civilization only advanced when men forswore personal acts of vengeance in favor of allowing the State to punish malefactors.) How much courage would it take anyway to resort to REAL violence in settling a score? All one needs is a firearm and some target practice and one becomes a match for any bully. Do I have to challenge my enemy to a duel to prove I'm macho or would it be sufficient if I pulled a Jack Ruby?

The thing is, Tamler, there's a side of me that's down with what you are saying. The problem is I've also come to believe that it is one of my lesser angels, something I must OVERCOME in the pursuit of virtue. (I'm fond of telling my teenage son the story of how I won over the homecoming queen one night by simply ignoring someone who was pushing me around on the dance floor. She later said that she was impressed by my 'maturity.') 'Vengeance is mine', saith the Lord, which makes self-restraint a serious virtue. Courage isn't simply the willingness to do what is dangerous. The object of one's activity must also be taken into account and I'm not sure vengeance qualifies as any part of courage.

I should add finally that I do not think that it would take one whit of courage to sit in a room with even the most menacing thug were he manacled and I protected by armed guards, simply the realization that there is 'nothing to be afraid of'. Nor am I moved by your Nietzschian attack upon 'ressentiment', which can be fully justified and even virtuous where the offense involved is serious enough. Nay, it would betray a defective spirit were someone not terribly offended by a great injustice, even allowing for the importance of mercy and forgiveness. (Cf. my earlier example of Judgment at Nuremberg.) It also seem clear that all you hope to accomplish via your restoration model could be facilitated within a system that also effects retribution. Justice and mercy are not mutually exclusive, though they do require a serious balancing act we mortals obviously struggle to perform.

I'm going to bow out now and descend to my lair to enjoy the splendid slate of football games on TV this weekend. But before I do, thanks for your work on our behalf this month. I hope that we can one day continue this discussion over food and beverages. I had a lot of fun that night in Pullman.

[V. Alan White]

Tamler, I have appreciated your posts this month as well. Thank you for forcing me to think about punishment in ways I had not previously.

Disclaimer: I am no expert on virtue or a virtue theory of ethics, though in recent years I have come to think that some sort of virtue utilitarianism might capture what we need from moral theory more satisfactorily than other familiar alternatives.

My question is this: are the virtues well-defined enough to capture a definite picture of punishment? The problem of what constitutes a virtue such as courage and tolerance is susceptible to the familiar problem of relative values: courage for some groups might be more combative than others that might be more pacifist. (The strength of the flexibility of virtue theory thus becomes in a larger scale a weakness.) Given such variability of a virtue, then might not a more specific examination of the values that centrally determine the core of a virtue be the real issue? More combative courage then might depend in turn on the sense of the rightness of retributive or self-defensive attack, whereas pacifist courage might depend on the value of self-sacrifice or refusal to participate in violence. I'm just not convinced that references to virtues are the end-all to justifying punishment either axiologically or epistemically.

[Josh Shepherd]

Just want to quickly say that I've always found your line on these matters fairly plausible, Tamler, though I've wondered at times about the practical upshot. This talk of a mediation process strikes me as helpful in that connection (like Eddy, I'd like to hear a bit more).

One other thing: how are you thinking this process might be (morally?) justified? You suggest our judgments go with it, but you also talk about virtues and how a mediation process might promote them. There's also a shade of authenticity-talk in the background: actually having to face the victimizer in a real human way, it's being a very meaningful, perhaps self-revelatory experience, and so on. Could you say a bit more about justification for implementing something like this?

[Bruce Waller]

Tamler, Great month of posts, with an interesting and well-developed and certainly thought-provoking (not to say provocative) theme. I agree with you that a restorative justice program is a big improvement over state-sanctioned retribution, for lots of reasons, including those you describe so well along with the greater likelihood of examining deeper causes of our problems. But I'm more skeptical of the retributive virtue (though characterizing it as such may go further than you would?). The retributive desire/emotion at the heart of the retributive desire seems a broader emotion: a desire to "pass the pain along," as some psychologists and biologists describe it. When the bully hits me, striking back at him will make me feel better; but if he is too big and strong and scary, striking someone else will work just as well: if I beat up one of the weaker kids, I feel better, and with less risk; and it still sends the message that while I may not be the alpha male, nonetheless you should think twice before you mess with me. We find the same phenomenon in rats and cats and chimps, and it is obvious in humans: Larry hits Moe, who pokes Curly in the eye, who proceeds to break a chair; the boss demeans a subordinate, who yells at his son, who kicks the dog. The U.S. gets beat up in Vietnam, so it makes an unprovoked and widely celebrated attack on defenseless Grenada. This is perhaps one of the reasons that countries with very strong retributive sentiments (such as the U.S.) are so careless about whether the person convicted is innocent or guilty. We are not likely to eliminate such emotions (they run very deep, and across species), so -- as you make clear -- we need to find some way of managing them; but I'm not sure we should celebrate them.

[Tamler Sommers]

Eddy, thanks that's helpful. Sorry about bringing Sam into this but at least I didn't make him the snitch who runs crying to the principle. That's the sense in which retributive justice is more like the principle suspending or expelling the bully: the punishment is handled by a third party, an allegedly unbiased higher authority, and the victim is not involved in the process. Restorative justice is in one sense more like personal revenge, since it requires that the parties directly involved in the conflict meet face to face to try to work things out.

But you and Robert make a good point about how the mediation sessions aren't that analogous to the 'handle-your-own-business' cases that give us the "warm fuzzies." (I like that.) Because there are armed guards ready to protect the victim from physical harm. That said, two things: one, the armed people are there to protect both parties--a victim might be aggrieved as well and try to assault the offender. In one sense then, the guards are making sure there's an equal playing field. (Like the kids who gather round the fight and make sure nobody joins the fight and gangs up on one of the kids. Or Hockey refs.) And two, as I'll flesh out a little below, there are more ways to display courage than fighting.

So Robert, I agree that "courage isn't simply the willingness to do what is dangerous." That's why I think you and maybe Eddy are underestimating that amount of courage it would take to go into a mediation session even when your physical safety is guaranteed. Think of the Grosmaires (who knew they faced no threat from McBride) sitting there and listening to the person who killed their daughter describe what happened and how helpless she was. I would bet that took a tremendous amount of courage and personal virtue. Or think of victims of domestic violence or sexual assault. The victims have the hardest time walking into mediation for these kinds of crimes but apparently (according to many studies) the rewards are also the highest. Victims report the highest gains in restored self-respect because they showed the courage to face down the people who abused them.

[Tamler Sommers]

Hi Alan, thanks. Those are good questions. I guess I'm more attracted by the flexibility than worried about the relative nature of the virtue approach. In fact, one thing I like about restorative processes is that it can bring two people different conceptions of the virtuous person into contact with each other. In the best cases, these sessions might curb our tendencies to demonize people who have different value systems. I think I see what you're getting at though when you write that virtues might not be the core of what we're looking for to justify punishment. But I'm not sure that unifying deeper principle that can explain our feelings about the virtues of punishment is really out there.

Josh, thanks--nice that someone finds my line fairly plausible. This project has been an uphill battle. Did my comment to Eddy and Robert help with your first question? As for you second, remember that I'm accepting Moore's methodology at least for the sake of argument. (This might also apply to Alan.) So the fact that our judgments go for it, and that the judgments are motivated by virtuous feelings, gives me the moral justification. But I also like what you say about the "a shade of authenticity-talk in the background: actually having to face the victimizer in a real human way, it's being a very meaningful, perhaps self-revelatory experience..." That a nice way of describing it, and probably accounts in large part for why our particular judgments may favor these outcomes.

Hi Bruce, thanks. I'm not sure how much we disagree. Maybe very little, at least on this issue. I certainly think there's no virtue in "passing the pain along" to someone weaker than you. The desire to do that might be a byproduct of retributive instincts--but it's infused by weakness and ressentiment, certainly not the virtuous feelings that I was endorsing (and Moore too for that matter.)

In fact, it's for a related reason that I changed my tune about victim impact statements--the victim in those cases has the entire power of the state behind him or her. They can say what they want and the offender has to keep silent. The power imbalance has shifted too violently in favor of the victim. Mediation sessions, again, have a more level playing field.

[Eddy Nahmias]

But now you are losing me with an anti-warm-fuzzy feeling! If one of our daughters were savagely I-can't-even-write-it, the last thing in the world I would want to do would be to hear the bastard who did it give me the details of the crime face-to-face, with the risk that he would enjoy retelling it, and guards to protect him. You are right it would take courage to sit there and hear it, but not a kind of courage that I feel would help restore me (or the bastard). Being able to take him on in a cage match might feel restorative (even if it was set up so I would not get my ass kicked), but probably not, at least if it felt anything like it felt after my eighth grade fight in the playground--namely, crappy.

And I'm not sure why you say it shifts power to the victims too much if they get to tell the offender about their pain while he has to sit there and take it. After all, the victim had to sit there and take it while s/he was being robbed, assaulted, raped, or killed.

[John Fischer]

Tamler,

I have enjoyed your blogging this month, even though I have been extremely busy and thus unable to participate. I'll keep thinking about these matters.

For some time I have felt that we philosophers do need to attend more to the victims, rather than just the perpetrators. I appreciate the movement in this direction. I have for awhile admired Matt Talbert's efforts in this regard as well.

Of course, even if Moore's defense of retributivism fails, it might be that retributivism can be defended in another way; or perhaps it is just true without being able to be defended by invocation of more basic notions. I wish I could give a better defense of retributivism; I sometimes suspect that, if it is indeed true (at least in some form or other), it is one of those philosophical ideas that is "basic" or close to basic. This is of course very unsatisfying.

Perhaps I might add that I don't think we should expect to find a single principle that justifies punishment. It is more plausible that deterrence, restoration, moral education, and retribution all play roles in the justification of punishment. Or so I'm inclined to think.

Thanks again, Tamler!

[Tamler Sommers]

Eddy, this case was different though. Did you see read the article? Would get the warm-fuzzies if the parents murdered McBride? He was horrified by his action, he turned himself in immediately after the act, walked into the police station and told the officers what he'd done. McBride was not going to throw anything in their face in their session. He was willing to do whatever they thought would be helpful. I don't know exactly how I'd feel if I were the parents--like you, I can't stand even thinking about it--but I don't think blind rage or vengeance would be a no-brainer.

I was just using the McBride case in reply to Robert, an example of how it does take courage to go into these sessions even if you risk no physical harm. In a case where an unrepentant criminal savagely murders a family member, personal vengeance would be preferable to a restorative mediation session. But most crimes aren't like that.

"And I'm not sure why you say it shifts power to the victims too much if they get to tell the offender about their pain while he has to sit there and take it. After all, the victim had to sit there and take it while s/he was being robbed, assaulted, raped, or killed."

All that's true, it might not be unfair but it's still not as virtuous, doesn't require as much courage. Just like if 15 older boys hold down the bully while the victim pummels him with impunity. It might be fair in one sense, the bigger bully was doing that to him. But it's not satisfying and wouldn't do much for self-respect.

John, thanks. Right, just because Moore's approach leads to something slightly different, that doesn't mean someone else couldn't justify the standard retributivist model. But I prefer the modified restorative/restitutionary/retributive hybrid anyway.