What is the relationship of punishment theory to punishment practice? What should this relationship be? The last twenty years have seen an amazing rise in sophisticated and elegant theories of retributive justice of a Kantian, and more recently, an expressivist variety - a “retributivist revival.” As pure philosophical theorizing goes, this must surely be counted as real progress. But, those same twenty years have also seen increases in the length of criminal sentences, in the amount of activity subject to criminal sanction, and in the sheer number of people behind bars. Professor James Q. Whitman has famously said that we are now witnessing the rise of a uniquely American brand of “harsh justice” in the United States. It would seem natural to ask whether there is any correlation between these two independently significant events, that is, whether the philosophical developments in punishment theory and the practical increase in harsh punishment are related. In particular, has retributive theory in some way contributed to the harshness of our present punishment practice? If it has, should that impact how we evaluate philosophical retributivism?
Whitman has argued in a series of articles, a book, and testimony that it is no coincidence that “the age of the renaissance of neo-retributivism [has] also been the age of epochally harsh punishment.” This Article uses Whitman’s assertion as a springboard for assessing the present state of retributive theory and its relevance, or irrelevance, to practice - especially to our contemporary practice of harsh justice in punishment. Whitman’s diagnosis of the state of Anglo-American punishment theory is useful because, in a particularly forceful manner, he asserts that theory and practice should be related in a certain way and that it is problematic when they are not. He claims that retributive theory, when it is not practically useless for correcting our punishment practices, is positively harmful. There is something deeply correct in Whitman’s allegation, and some versions of retributivism are especially vulnerable to it. In this Article, I defend a version of retributive theory against Whitman’s charge.
Flanders, Chad, Retribution and Reform (December 14, 2010). Maryland Law Review, Vol. 70, p. 87, 2010; Saint Louis U. Legal Studies Research Paper No. 2010-39.