This is an Accepted Manuscript of an article published by Taylor & Francis
in Ethics and Social Welfare published online 16th May 2016. It is available
online: http://www.tandfonline.com/ [see link to article below].
ISSN: 1749-6535 (Print) 1749-6543 (Online) Journal homepage:
http://www.tandfonline.com/loi/resw20
Revising Wolff’s support for retribution in theories of punishment:
desistance, rehabilitation, and accommodating individual and social
accounts of responsibility
John Deering & Steven R. Smith
To link to this article: http://dx.doi.org/10.1080/17496535.2016.1183032
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Title
Revising Wolff’s support for retribution in theories of punishment: Desistance,
rehabilitation, and accommodating individual and social accounts of responsibility
Authors
John Deering, Reader in Criminology & Criminal Justice
Steven R. Smith, Professor of Political Philosophy and Social Policy
Abstract
Jonathan Wolff supports retribution as a justification for punishment in his book Ethics
and Public Policy: A Philosophical Enquiry, arguing that the victim’s status and selfrespect has been undermined by a crime committed. Punishment responds to these
‘social violations’, with the criminal justice system acting as a ‘communicative
mechanism’ to the offender and victim, restoring the status of the victim by punishing
the offender. Consistent with Wolff’s ‘bottom-up’ methodological approach to applied
ethics, this paper defends his conclusions supporting retribution, for certain crimes at
least, but his position needs qualifying and supplementing. We mount a defence of
retribution which, contrary to popular views, seeks to accommodate both individual and
social accounts of responsibility. This accommodation is achieved by holding the
individual offender responsible via retributive justifications of punishment, while also
acknowledging the social responsibility of restoring the status of the offender given the
social injustice experienced by many offenders, prior to their offending. Following this
analysis, and a consideration of empirical studies concerning probation practice, we
recommend the practice of desistance as most likely to help reduce re-offending,
alongside the social responsibility of other state representatives and social institutions
for building socio-economic capital for the offender.
Key words
Applied ethics; desistance; retribution; social justice
Acknowledgements: The first draft of this paper was presented to The Howard
League for Penal Reform’s conference ‘What is Justice? Reimagining Penal Policy’ held
at the University of Oxford in September 2013. We would like to thank the participants
at the conference for their insightful and valuable comments. The first draft was then
revised for The Howard League for Penal Reform’s ‘What is Justice?’ working paper
series, appearing in March 2014 on its website – see www.howardleague.org/what-isjustice – which is a much shorter and less developed version of this paper.
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Introduction
Although Jonathan Wolff is not considered a specialist in penal theory or the philosophy
of criminal law, his book Ethics and Public Policy: A Philosophical Enquiry (EPP) is
important to consider concerning these subject areas. Wolff’s methodological approach
to applied ethics, drawing on his experience of contributing to UK Government
committees as a philosophical/ethical advisor, (a) targets philosophical and nonphilosophical audiences, and (b) examines the often asymmetrical relationship between
applied ethics/philosophy and practical policy-making. Consequently, Wolff’s
methodological approach has particular resonance for this journal’s remit, as it too
seeks systematically to apply abstract ethical principles to the specifics of policy
recommendation and welfare practice, recognising that this task is not straightforward.
Wolff’s book also has resonance for those interested in penal theory and the philosophy
of criminal law given that one of the chapters is dedicated to this subject, and as we
explore here how Wolff’s position regarding these matters relates to his methodological
approach, and the development of probation practice within the criminal justice system.
More specifically, in EPP Wolff argues for what he calls ‘bottom-up’ applied ethics,
demonstrating the importance of philosophers engaging with public debate, including a
proper consideration of well-researched empirical studies. This approach also underpins
the methodology of this paper, so addressing directly the concerns of this journal.
Nevertheless, attending to abstract theorising and to well-researched empirical studies
often complicates ethical analysis. The philosophical premises concerning theories of
punishment, for example, are often problematized when considering empirical studies
relating to probation practice and the criminal justice system, including, we contend, the
premises of Wolff’s own position defending retribution.
This paper mounts a critical defence of Wolff’s core philosophical arguments supporting
retribution in criminal law: that certain crimes undermine the victim’s status and so
justify punishment for the reasons Wolff outlines. However, we qualify and supplement
Wolff’s position accommodating the main themes of ‘desistance theory’. Most notably,
we extend the focus and meaning of status in an attempt to accommodate both
individual and social accounts of responsibility, thereby adding qualifiers to Wolff’s
retributive arguments. For Wolff, restoring the victim’s status through punishing the
offender rebalances the moral and social order. We accept this argument, but only if
four empirical conditions are met, consistent with Wolff’s ‘bottom-up’ approach to
applied ethics:
(1) A negative impact on the victim from the crime committed must be
demonstrable.
(2) There are proper procedures, administered at least initially via the criminal
justice system, which do in fact restore the victim’s status.
(3) The punishment can be shown to reasonably reflect the crime, with these reasons
being explained and understood by the victim, and that the responsibility of the
crime committed is located with the individual offender.
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(4) Via an account of social responsibility, there is an institutional acknowledgement
and response to the need for restoring the status of the offender in many cases –
that is, given overwhelming empirical evidence that offenders often suffer
multiple social and economic disadvantages before any offence is committed and
that these disadvantages, to some degree, underlie such offences.
Moreover, in regards to (4) above, we start with the core assumption of desistance
theory which is emerging in probation theory and some practice – that traditional
notions of rehabilitation which apply ‘treatment programmes’ uniformly to offenders
often do not work. This is because individuals have an idiosyncratic journey to becoming
a non-offender which cannot be generalised or uniformly applied through such
traditional treatment methods.
Retribution and status restoration – outlining Wolff’s position
Wolff’s book Ethics and Public Policy has a chapter dedicated to examining ethical
questions concerning crime and punishment. The central question is, ‘what is so bad
about crime that it warrants punishment, and moreover a punishment which is often
severe (especially imprisonment)?’ The answer for Wolff lies not in observable facts of
injury or loss suffered by the victim, as these can be relatively minor compared with
other forms of injury and loss, from, for example, accident or natural events/disasters. It
is found in the relationship between the offender and victim, and what is communicated
to the latter and wider society via a crime committed (also see Wringe, 2012; Duff, 2001;
Bennett, 2008):
... the fact that a crime is something one human being does to another seems to
add a further moral or political dimension ... that in picking on you as a target for
his or her crime, another person treats you in a particularly undesirable way,
showing you lack of respect, or contempt (Wolff, 2011, p. 114).
For Wolff, even an attempted crime regards the victim with contempt (Wolff, 2011, p.
115). Nevertheless, according to Wolff:
A successful crime cuts deeper. It seems to be an assault to the self, even to the
point of putting one in a different category – that of victim ... In the case of
becoming a victim of crime one loses the sense of being master of one’s fate.
Furthermore one can become the object of pity, which many people can find
diminishing. But most of all, another person has treated you with contempt, and
has succeeded in doing so ... A successful crime seems, in at least some cases, to
bring about a change in status and in self-respect. It is, in this respect,
transgressive and disruptive of the social order. (Wolff, 2011, pp. 115–116).
These assumptions are controversial certainly, but how do we justify punishment
according to Wolff, if they are true at least in some cases? For Wolff, a sound
justification for punishment is not based on deterrence – as deterrence has proven to be
largely ineffective based on over-simplified and inaccurate accounts of human
motivation (Wolff, 2011, pp. 117–123). It is also not through rehabilitation – as
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rehabilitation misleadingly exaggerates the positive effects of punishment as a means of
changing the behaviour of many offenders (Wolff, 2011, pp. 117–123). This leaves what
he sees as the other main contender for justifying punishment, namely ‘retribution’.
Although, at first glance, retribution looks barbaric as it seems merely to punish for the
sake of revenge (and for a seminal statement on this subject see Honderich, 2006).
However, if it is examined more closely, relating it to a communicative function and the
restoration of status, then retribution has greater justificatory force:
In succeeding in their crime against you … they have victimized you, and left you
in a lowered status. Even when there is no identifiable victim – as in the case of
vandalism of public property – the successful criminal implies that in some sense
he or she is above the norm, or, at least, above the rules. Crime communicates a
message ... If so, then punishment appears in a new light. For at least part of the
purpose of punishment then becomes to re-establish some sort of proper status
between all parties ... In sum, retribution, understood in its communicative form,
may be somewhat less barbaric, as a justification of punishment, than it is
sometimes thought. (Wolff, 2011, pp. 124–26; and see note 8 below).
Our position accepts this aspect of Wolff’s argument – and that his justification for
retribution is plausible for certain crimes especially (for example, burglary, muggings,
assault, and theft). In these cases, there is considerable evidence that victims experience
the kind of assault on ‘self’ which Wolff describes, and that this requires a
communicative response from the authorities to support victims (Crown Prosecution
Service, 2015). However, even if we agree with Wolff’s overall conclusions we argue for
important qualifications and supplements, consistent with his ‘bottom-up’ approach to
applied ethics which, as stated, closely interweaves empirical evidence with
philosophical argument.
Desert, proportionality, desistance, and the bottom-up approach
We will now consider further the meaning of retribution to clarify our arguments
concerning Wolff’s position. Rachels discusses various justifications for punishment, but
makes central to all a ‘principle of desert’, based on the formal principle that: ‘People
deserve to be treated in the same way that they choose to treat others’ (Rachels, 2002, p.
468).1 From this he argues that four other principles are fundamental to any idea of
justice in criminal law, that: only the guilty should be punished; all should be afforded
equal treatment; punishment should be proportionate; and excuses should be taken into
account (Rachels, 2002, p. 471).2 Consistent with Wolff’s position supporting
retribution, Rachels argues that this principled understanding of desert does not equate
to primitive vengeance, and is preferable to both deterrence and rehabilitation.
The principle is formal as it does not define the substantive conception of ‘desert’ and
‘treatment’. It articulates the broader concept by which the principles of desert and treatment
are applied however these may be specifically defined.
2 The fourth principle may seem problematic for retribution, as two people committing the same
crime can receive different punishments. However, these excuses do not absolve the offender
from individual responsibility and guilt, but may reduce the sentence implying merely the
offender’s reduced responsibility.
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1
Developing this last point, it is important to acknowledge that in popular discourse and
everyday parlance, e.g. within the media, political debate, and so on – the term
retribution is often used loosely (so including this more primitive understanding) and is
rarely closely defined in ways suggested by Wolff and Rachels. Consequently, retribution
becomes associated only with punishment – particularly more severe types such as
custody (also see Haist, 2009; Walgrave, 2004; Brunk, 2001; Daly, 2000; Zehr, 1990;
Morris, 1977). In addition, popular discourse often conflates retribution with deterrence,
where severe punishment is justified, not only because the crime is a wrongdoing
directed toward the victim which needs redressing, but also because severe punishment
is said to deter the offender and others from committing future crimes.
However, our argument removes the meaning of retribution from these narrow links to
only severe punishment and deterrence, and includes the use of any punishment
imposed by the criminal justice system. Consequently, retribution can entail a range of
punishments, from cautions to discharges, fines, and community orders, as well as more
punitive sanctions, such as custody. Given this more comprehensive and nuanced
understanding of punishment and retribution, our philosophical justification of
retribution is very different to justifications based on simply ‘paying back’ the offender,
or on deterrence. Clearly, we need to disentangle these overlaps in popular discourse to
mount our defence of retribution, and which will also include accommodating
desistance-based rehabilitation (for a similar strategy also see Daly, 2000, and to a
lesser extent Morris, 1977, and Zehr, 1990).
After reconceptualising retribution accordingly, the next issue is proportionality,
reflecting our view that retribution should be in proportion to the nature of, and harm
caused by, the original offence (Zehr, 1990). Whilst this appears an uncontroversial
abstract principle, and is consistent with Rachels’ principles of desert defined above,
proportionality is difficult to apply in particular cases. This difficulty arises from another
question accentuated by our view of retribution, which allows for a wide range of
punishments, namely: what specific form of punishment is equivalent to a specific
offence? Our understanding of retribution is potentially problematic because notions of
equivalence will contain arbitrary elements given the range of punishments which can
be administered. Understandings of proportionality too are variously interpreted across
different temporal and cultural domains (and see Morris, 1977). For example, over the
past twenty-plus years in England and Wales, since the 1993 Criminal Justice Act
deliberately reversed the custodial parsimony of its 1991 predecessor, it has been
observed that proportionality has spiralled ‘up-tariff’. This has led to significant
increases in the use of custodial sentences, despite offending rates declining during the
same period (Deering 2011; Mair, 2011). However, this ‘up-tariff’ trend also suggests
that proportionality could be re-defined in the opposite direction. Following the
previous arguments, the latter response can be based on the assumption that retributive
sanctions may only need to be set at minimal levels necessary for justice to be
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administered (and see Morris, 1977).3 Therefore, it is possible to view the use of many
community orders, and especially most custodial sentences, as unnecessary and
disproportionate, as we indeed do, while simultaneously committing to retribution as a
legitimate justification of punishment.
In addition, we reject any exclusive focus on rebalancing the status of the victim,
without paying due attention to restoring the offender’s status. The latter would be part
of a wider strategy of enhancing social justice and social inclusion via an account of
social responsibility directed toward the offender in many cases and underpinned by a
theory of desistance which, we would argue, can operate alongside our redefined
understanding of retribution.
However, first we question the assumption made by Wolff, that punishing the offender
is a clear ‘communicative form’ (as he puts it) which necessarily restores the victim’s
status (and see Wringe, 2012; Bennet, 2008; Duff, 2001). Whilst this may occur in some
instances, this supposition lacks an empirical base. This deficiency, in turn, is
inconsistent with his ‘bottom-up’ approach to applied ethics. According to Wolff:
It is becoming increasingly common to distinguish ‘top-down’ (or theory-driven)
from ‘bottom-up’ (problem-driven) approaches to applied ethics. This book,
naturally enough, aims to be a contribution to ‘bottom-up’ theorizing, where the
first task is to try to understand enough about the policy area to be able to
comprehend why it generates moral difficulties, and then to connect those
difficulties or dilemmas with patterns of philosophical reason or reflection.
(Wolff, 2011, p. 9).
For Wolff, the ‘bottom-up’ approach to applied ethics requires an accurate
interpretation of the world, where philosophers must thoroughly address empirical
investigations pertinent to the relevant policy area, thereby properly informing the
premises used in philosophical argument. However, in accommodating this last
injunction, Wolff’s own position concerning crime and criminal law seems inconsistent
with ‘bottom-up’ theorising.
Certainly, criminal justice systems have often ignored the needs of victims, even
regarding victims solely as a source of evidence, rather than as persons with specific
rights and entitlements (this criticism is consistent with Immanuel Kant’s classic
Morris’s defence of what he called ‘minimal retribution’ is based on utilitarian arguments. In
the context of us accommodating both individual and social accounts of responsibility, ‘minimal
retribution’ must therefore imply that (a) the offender is responsible for the crime committed,
and (b) the punishment is sufficiently adequate for the victim’s status to be restored, but
provided additional procedural mechanisms are put in place which are designed to support the
victim (also see discussion below). Social accounts of responsibility and, by implication,
principles of social justice are implemented in relation to the offender and are applied once the
punishment is administered. That is, assuming the offender experiences multiple social and
economic disadvantages prior to their offending, which they often do (and again see discussion
below).
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justification of retribution explored in Honderich, 2006, pp. 17–28). However, more
recently attempts have been made to rectify this problem, for example, via the
introduction in England and Wales of the Victims’ Charter in 1990. Consequently, there
is now a range of entitlements for victims, concerning them being kept properly
informed about the progress and outcome of criminal proceedings, and about the
sentence and release of some imprisoned offenders4 (Ministry of Justice, 2013a).
Therefore, according to Wolff’s defence of retribution and punishment – with
punishment acting as a clear ‘communicative form’ – these requirements in England
and Wales appear to straightforwardly underpin Wolff’s account so, potentially at least,
helping to restore the victim’s status.
Nevertheless, it is unclear how these policies have improved the overall circumstances of
victims. Any restoration of status in individual cases is likely to be a complex and
difficult process for many, requiring something more than communicating information.
For example, some victims may be displeased with the type and severity of any sentence.
The communication of punishment may not, in their eyes, restore their status; at worst,
it might even leave them feeling further victimised. Of course, this empirical observation
does not contradict Wolff’s broader justificatory reasons for retribution. However, if
restoring the victim’s status is successfully implemented, then, consistent with Wolff’s
commitment to the bottom-up approach to applied ethics, considerable work is still
needed to revise the criminal justice system, and to ensure this restoration happens in
practice (also see Wringe, 2012; Bennett, 2008; Duff, 2001). Therefore, while
retribution via its communicative function may be a necessary element in restoring the
victim’s status, it may have a limited impact and thus it is not sufficient; additional
measures might be required, therefore, to restore the victim’s status which goes beyond
retribution exacted upon the offender.
Moreover, retribution is only fully defendable if the following occurs: that
proportionality is revised downwards in many cases, as previously argued; that policy
and practice addresses wider issues about many offenders’ relatively low social and
economic status. Again, consistent with Wolff’s bottom-up approach to applied ethics,
empirical evidence suggests that a large proportion of known offenders are socially
excluded and are of reduced socio-economic status (Ministry of Justice, 2013b; Murray,
2007; Social Exclusion Unit, 2002). Developing further our account of retribution, this
evidence supplies reasons for the state to endorse a broadly two-fold restoration of
status – namely, the offender’s status as well as the victim’s, derived from
accommodating both individual and social accounts of responsibility in the ways
described throughout the paper. The next section outlines in more detail how these
accounts can be accommodated – underpinned by well-developed social theory and the
promotion of desistance as a particular form of rehabilitation, and operating alongside,
and in addition to, retributive justifications of punishment.
We exclude Victim Personal Statements (CPS 2015) from services that might restore the status
of victims as these are part of the pre-sentence process, rather than any measure enacted as part
of the punishment of an offender and any support of the victim post-sentencing.
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Restoration, desistance, and rehabilitation
What form should this two-fold restoration of status described above take? As we have
seen, Wolff dismisses rehabilitation as a sound justification of punishment, but does so
too quickly in our view. Without fully defining rehabilitation or citing empirical evidence
for its ineffectiveness, he states: ‘rehabilitation, even if effective, which it probably is
not, could only have a marginal effect upon future crime rates’ (Wolff, 2011, p. 118).
Certainly, the efficacy of rehabilitation programmes has been long debated through the
1970s ‘Nothing Works’ era within the UK and internationally (Brody, 1976; Martinson,
1974; Lipton, Martinson, et al., 1975) to the ‘What Works’ era (McGuire, 1995; Hollin,
1999; McGuire, 2001; Ward and Stewart, 2003; McMurran and McGuire, 2005).
Moreover, we claim that if rehabilitation is promoted as a monolithic ‘treatment’ defined
by an expert and ‘done to’ the offender without regard for individual differences, then it
is likely to fail in many cases for a variety of reasons. But these reasons are not sufficient
to reject rehabilitation outright, as more recent research on desistance suggests that
facilitating a highly individualised process of change from an offender to a non-offender
(this being the general aim of rehabilitation within probation practice), offers a more
promising approach to, for example, community orders5, than more traditional
rehabilitative treatment programmes. Given the possibility of desistance, Wolff’s
promotion of retribution can be supplemented if this empirical evidence for desistance
is conceded, which then, we believe, makes better sense of his notion of restoring status
via punishment. Briefly, we argue that there is no incompatibility between punishing the
offender and helping the offender as both aims can be applied to strategies of
intervention. That is, provided these strategies are underpinned by both individual and
social accounts of responsibility in the ways described in this paper.6
In the last decade or so there has been an emerging literature on desistance which is
theoretical and empirically based, offering encouraging signs for policy and practice
development (Laub and Sampson, 2001; Kazemian and Maruna, 2009; Maruna and
LeBel 2010; King, 2013; Rocque, 2015). In addition, there is evidence that some
probation practice is akin to ‘desistance-type’ intervention, given it is reactive and
needs-based, rather than proactive and ‘treatment based’, with many practitioners being
disposed towards the former types of intervention (Deering 2011; Vanstone, 2004).
Nevertheless, desistance is a relatively young and contested field, emerging to some
extent from a critique of existing probation practice underpinned by ‘treatment’ based
interventions. It criticises rehabilitation as ineffective when helping individuals change
their behaviour (Farrall, 2002) emphasising, instead, the importance of developing a
Community Orders in the UK are requirements on the offender to fulfil certain obligations
while living in the community, such as regular visits to a supervisory probation officer, engaging
in unpaid work, completing drug rehabilitation and/or offending programmes etc. Community
Orders are intended to be tailored to the circumstances and behaviour of the individual offender
to encourage non-offending.
6 See note above regarding Community Orders, and for a similar strategy, also see Daly, 2000;
and to a lesser extent, Walgrave, 2004; Zehr, 1990; Morris, 1977. Also, contrast this with
Honderich, 2006; Brunk 2001, who regard retribution justifications of punishment as
fundamentally opposed to restorative and rehabilitative principles of justice.
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5
healthy professional relationship between worker and offender (Rex, 1999; Trotter,
1999; Burnett and McNeill, 2005; McNeill, Batchelor, et al., 2005). While having a
range of specific approaches at its disposal, in general terms, desistance advocates argue
that this relationship should be employed in assisting offenders in removing barriers to
their non-offending, thereby supporting and promoting their desistance.
Clearly desistance theory is wide and diverse and a fuller examination is outside the
scope of this paper. However, most importantly for the arguments presented here, is
that a significant strand of desistance theory assumes that offenders are best served by
accumulating their personal and social capital, recognising that this accumulation is
variously enabled (Weaver and McNeill, 2010; and see note 7 below). All advocates of
desistance, despite these variances, highlight the idiosyncratic processes by which
individuals undergo their reform. By implication, these idiosyncrasies challenge
treatment based interventions which promote a singular and monolithic method of
change, from whatever theoretical base. Recognising these features of desistance theory,
what role can criminal justice and probation practice play in desistance, and, how does
this consistently reflect Wolff’s justification of retribution, and our revisions to his
position?
Weaver and McNeill (2010) are clear that probation practice should identify and help
remove barriers to desistance. Following this prompt, and providing what they call a
‘desistance paradigm’, Maruna and LeBel (2010) argue that the criminal justice system
labels individual offenders via criminal records and other practices (such as disbarment
from certain types of employment) and contributes to the slowing down or even
cessation of desistance. In short, it cuts individuals off from avenues of social inclusion
and acceptance and can lead to reoffending. Thus, criminal justice and probation
practice must become engaged in a ‘de-labelling’ process, which might include the
‘wiping-out’ of official offending records. This de-labelling is also consistent with
retributive justifications of punishment, as once any sentence has been administered
and completed, then the individual’s debt to society and the victim has been paid, so
preventing what has been termed ‘legacy punishments’ (Maruna and LeBel, 2010, p. 78;
and see discussion below). Moreover, the wiping-out of official records is a clear
‘communicative form’ (as Wolff puts it), unambiguously conveying to offenders and
wider society that offenders now have the opportunity to be socially included, via, for
example, accumulating socio-economic capital (and see Wringe, 2012). To reiterate
then, in outlining the variants of desistance theory and practice we acknowledge that we
need to take account of the range of theory about how and why desistance might occur.7
Nevertheless, our principle argument is that desistance theory generally, however it is
specifically formulated, is different in its philosophical and ethical basis and practice
from traditional rehabilitation. Briefly, all types of desistance theory start and work with
Most recently, Rocque (2015) illustrates the current diversity of desistance theory, arguing that
it can be divided into three broad categories: pure age and biological theories; psychological and
psychosocial theories; and social process or sociological theories (2015, pp. 344-348). Most
relevant to our arguments here is the latter category, relating behaviour and desistance to social
ties, the development of social capital, and enhancing an individual’s concern about society as a
whole rather than only attending to ‘the self’.
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7
offenders’ own perceptions and needs, rather than depending upon more top-down
‘expert intervention’ which tends to ‘treat’ the individual offender as a passive recipient
of intervention. Moreover, this general desistance approach, we contend, not only
provides a more promising future for successful work with offenders, but also more
readily accommodates both individual and social accounts of responsibility. The
offender is actively engaged in defining his or her own process of desistance (so by
implication accommodating individual accounts of responsibility); but this process is
also understood within a wider social context articulated and acknowledged by the
worker (so by implication accommodating social accounts of responsibility).
Importantly, acknowledging the wider social context in this way is consistent with
helping the offender become socially included through attending to principles of social
justice concerning the offender (and see discussion below).
We will now explore how particular accounts of social responsibility must also be used
to understand better how the process of desistance operates alongside our retributive
justifications of punishment. First, our analysis is consistent with Duff’s contention that
the offender has a ‘right to be punished’ – that is, a right to have the wrong expiated,
allowing the individually responsible offender to make amends for his or her crime,
being administered through punishment and criminal law (Duff, 2001). The wrong
being expiated through punishment then lays necessary (but not sufficient) ground for
the restoration of the offender’s status. However, importantly, this right to expiation
should not be viewed solely from the perspective of individual freedoms and
responsibilities reflected in, say, Kantian liberal understandings of rights (and see
Honderich’s criticisms of Kant’s justification of retribution, 2006, pp. 17–23). Our view
is that we should also be cognisant of those social relations which create rights and
entitlements through a range of cultural, economic, and political circumstances, and
which recognise and shape both individual and group identities peculiar to these social
relations. Consequently, and using well-established social theory to inform our analysis,
the creation of one group’s identity or narrative is dependent, in part, upon the other’s
perceptions, and the specific manner in which their social relations are socially
embedded and reproduced.8 Regarding the theories of punishment and desistance
Of course, much criminological theory is derived from sociology and social theory/philosophy
(for example, see Garland and Sparks, 2000; Henry and Matsueda, 2015). There is insufficient
space to explore in detail this subject. Suffice it to say that whatever theoretical/philosophical
framework is used we would argue that an account of social responsibility (as well as individual
responsibility) needs to be articulated to make proper sense of justifications for punishment. For
example, see Brooks’ (2012) defence of what he calls a ‘unified theory’. His theory is based on a
Hegelian view which combines features of traditional justifications of punishment (including
retribution associated with Hegel) to address issues of both criminal and social justice. His book,
while philosophical in character, also examines empirical studies on crime and punishment in
some depth. Our arguments here clearly has sympathy with Brook’s general approach; and
although Hegelian social theory is not the only social philosophy on offer, that Brooks uses
Hegel to frame his ‘unified theory’ is consistent with our stress on the need to examine social
relations thoroughly when accommodating individual and social accounts of responsibility.
Moreover, that Hegel relies on an account of individual responsibility to justify retributive
punishment, but also provides a sophisticated account of how the state and society relates to the
11
8
explored here, we might say, then, that the identities of ‘offender’ and ‘non-offender’ are
defined within socially specific arenas. Therefore, punishment is not merely a response
to individually responsible criminal behaviour requiring a punitive response from state
authorities, but is also a constituent feature of relational processes of recognition where
dominant groups have the power and authority to communicate social disapproval of
other groups, defined as deviant or criminal. This social disapproval, in turn, is
administered through established institutions of punishment and criminal law which,
according to retributive justifications of punishment, necessitate first reducing the
status of the offender in response to crimes committed (and see note 8 above). However,
as previously stated, once the punishment is administered the wrong is expiated, which
then lays the necessary (but insufficient) ground for the restoration of the offender’s
status. In short, we are arguing for a version of retribution theory (let’s call it a ‘hybrid
theory’) in which retribution and facilitation of desistance, while are conceptually
distinct conditions, are both required for the justifiability of punishment.9
Second, and following this theme, notions of social responsibility can therefore be
promoted after punishment is administered emphasising these social relational
processes of identity formation and realignment. That is, restoring fully the offender’s
status, as well as the victim’s, given that many offenders, prior to their offending,
experience structurally entrenched socio-economic disadvantage reflecting highly
exclusionary forms of social relations. At this point we can see, too, that the meaning of
status restoration is multi-layered. So the victim’s status restoration concerns rectifying
or compensating for an individual criminal act via the punishment of the offender who
is seen as individually responsible for the crime committed. However, for the offender
the restoration of status concerns not merely expiating the wrong via punishment, but
also rectifying or compensating for social injustices often experienced by offenders prior
to their offending, via radical changes in social and economic relations based on appeals
to notions of social responsibility.
Following this two-fold and multi-layered restoration of status, we contend then that
appeals to social responsibility involve committing to institutional processes of radical
social reform, acknowledging the low socio-economic status of many offenders that
requires rectification. This restoration also requires state-organised redistributive
policies on a macro-level, combined with an empathic, desistance-based engagement of
individual to get beyond crude associations of retribution with revenge, is also consistent with
our arguments here. For example, in Hegel’s ‘Philosophy of Right’ he states: “Wherever crime is
punished not as crimina pub-lica but as privata, it still has attached to it a remnant of revenge
… In that condition of society where there are no judges and no laws, punishment always takes
the form of revenge. This is defective, as it is the act of a subjective will, and has an inadequate
content.” (Hegel, 2001, 102/para 102; also see Dyde, 1898; Stillman, 1976; Nicholson, 1982; and
Conklin, 2008). In this Hegelian understanding of retribution, then, understanding the wider
social context and the particularised response of social systems to crime and deviance, is
essential to providing a proper defence of retribution. Clearly, our argument follows a similar
line.
9 We are grateful to one of the referees for clarifying our position in this way.
12
workers committed to this two-fold restoration on a micro-level. The kind of identity
reformation needed in desistance is underpinned, then, by an explicit commitment to
ensuring the offender, once punished on grounds of retribution, is socially included
through committing to principles of social justice. More generally, identity reformation
is practised through processes of desistance, operating alongside retribution, all of
which rely on viewing the offender, not merely as an individual responsible agent, but as
a social actor who functions within a specific set of social relations. The point here is
that these social relations are subject to criticism and reform, alongside the behaviour of
the individual offender, so evoking both individual and social accounts of
responsibility.10 Consequently, we might also conclude that the imperative for social
inclusion although is not directly entailed by the principles presupposed by retribution
theory (e.g. of desert), is derived from additional considerations of social justice such
that retributive punishment is, we believe, only justified if these consideration are also
addressed.
Third, assuming this understanding of social responsibility (operating alongside
individual responsibility), specific policies and practices can be developed with the aim
of socially including the offender. This is not done on the traditional grounds of
encouraging ‘rehabilitation’, where those who change from offender to non-offender
assume a series of rights when ‘treatment’ is successfully implemented. But rather via
forms of support encouraging a wider social aim of desistance which restores the social
status of the offender in the ways just described, through first implementing
punishment and then engaging in supportive intervention after. These forms of support
are therefore consistent with a revised appeal to retribution, derived from a thoroughgoing social theory account of identity formation and social responsibility, with the
latter focusing on the importance of changing unjust social relations as well as
individual behaviour. Within this latter context too our position contrasts significantly
with the neo-liberal agenda of successive governments in England and Wales – that is,
our ethical position refuses to equate a credible criminal justice system with focussing
solely on individual responsibility for crime, but in addition recommends the radical
reform of wider social and economic relations as a proper response to crime and
punishment. In other words, we acknowledge the role of both individual and social
responsibility in the administration of punishment, and thereby combining principles of
retribution, restoration, and rehabilitation, through the notion of desistance.
Fourthly, we must return again to Wolff’s assertion that retribution necessarily restores
the status of victim. As we highlight above, this assertion is not based upon empirical
evidence as restoring the status of victim requires more than simply endorsing the
communicative function of retribution. Most importantly, the information-giving
processes currently carried out by the probation service, and the criminal justice system
more generally, also should be considered. Whilst these processes may have some
positive impact upon victims, we argue that ‘macro-level’ endorsements of policy needs
to translate into ‘micro-level’ work with victims intent on restoring the victim’s status
Here our position again contrasts sharply with Honderich, 2006, and Brunk, 2001 – and see
note above.
13
10
through whatever form required, be it financial, emotional, and so on. Indeed, some
forms of this assistance exist already, provided mainly by voluntary organisations within
England and Wales, such as ‘Victim Support’. However, this level of provision moves
beyond the assumed restoration of status resulting from retributive punishment solely.
Thus, our redefined notion of retribution acknowledges that although some restoration
of the victim’s status occurs as a result of retribution, this is not necessarily sufficient in
every case.
Fifthly, and following the last point, our understanding of criminal justice and our
commitment to accommodating individual and social accounts of responsibility, we
believe reflects empirical evidence, and so is also consistent with Wolff’s ‘bottom-up’
approach to applied ethics. For example, Maruna and LeBel have found that a proactive
process of engagement by offenders, such as voluntary work, can enable offenders to
earn, what is termed, ‘earlier recognition’ (2010, p. 79). They also claim that whilst
individual motivation and responsibility is central for change to occur, few desisters
achieve change alone, often citing significant others who help them achieve desistance,
including criminal justice workers. Desistance, then, recognises that any change and
rehabilitation is derived, at least in part, from a social relational process which reflect
notions of individual and social responsibility, where state representatives, and others,
play a positive role in encouraging change in offender behaviour while helping and
supporting the offender (Maruna and LeBel, 2010, p. 81). For example, King (2013) has
argued that probation’s efficacy in the early stage of desistance is important, as well as
cultivating good quality long-term relationships between worker and offender. A healthy
relationship is facilitated by empathy, genuine engagement and interest, pro-social
approaches and the proper use of authority. Notably, too, King argues, via his study of
probation supervisees, that such relationships can help offenders take responsibility for
their lives by re-examining their past and then considering ‘alternative futures’.
However, via our account of social responsibility, we can see how these ‘alternative
futures’ are only made possible if the social status of the offender is restored through the
accumulation of socio-economic capital. This accumulation allows for a practical
realisation of these alternatives, as the offender understands that reoffending would
jeopardise this capital which then supports his/her desistance. The wider ethical point is
that focussing on restoring the social status of the offender (as well as the victim) is not
only consistent with a desistance approach and the revised justification of retribution
offered here, but also with our attempt to accommodate both individual and social
accounts of responsibility.
Conclusion
We have combined a proportionate retributive justification of punishment (revising and
supplementing Wolff’s recommendations), but with close attention to the social
injustice that many offenders experience. This combination is based on the premise that
issues concerning the restoration of status (being central to the notion of retribution)
are not confined to victims, but are also pertinent for offenders. Our arguments,
therefore, have tried to reposition retribution and desistance away from a neo-liberal
agenda which focuses solely on individualised understandings of responsibility in
14
relation to crime, toward a social notion of responsibility which allows for the
restoration of status for both the victim and offender, so underpinning the latter’s
rehabilitation. Furthermore, we contend that despite arguing for an enhanced role for
retribution, our proposals are opposed to more punitive notions of retribution promoted
by the UK government at least, and evidenced by, for example, the continued high use of
custodial sentencing. We defend our position in two ways. Firstly, we argue that
proportionality needs to be revised in a downwards direction (which would reduce the
use of custody and many community orders); secondly our revised conception of
retribution involves, additionally, enhancing the status of the offender.
One final question arises from our arguments presented so far, namely: how can our
approach be a variant of retribution, given that retribution, traditionally understood,
seems only to redress the victim’s status (but as we have argued in a limited way) based
on a backward-looking focus on the crime already committed (and see Honderich,
2006)? Subsequently, traditional views of retribution do not focus on the future of the
offender, only on the past offence and its detrimental effect on the victim. Our approach,
while supporting the principle of retribution clearly challenges this orthodoxy, seeing
the restoration of the victim’s status as a necessary but not sufficient condition for
justifying retribution. It is in this latter context that we are also concerned with the
future behaviour of the individual offender, with the view to restoring the offender’s
status as well. Consequently, we have proposed a modified justification of retribution
which includes a commitment to desistance. For example, our proposal may involve the
offender, as part of a court sentence, having to comply with the terms of an
appropriately administered community order, with this form of punishment including
the possibility of breach and therefore a return to court for non-compliance. Thus, such
an order reflects an offender being held individually responsible via criminal law and
the criminal justice system, underpinned by an institutional process of punishment,
delivered within a clearly communicated legal framework. This type of responsibility has
certainly been enshrined in criminal law since the 1991 Criminal Justice Act in England
and Wales, and can be readily encompassed within our revised Wolffian understanding
of retribution.
However, we also contend that both retribution and the strategy of desistance stem, in
part, from a concern for the offender’s social status. Following Rachels (2002, p. 473),
we have argued that one element of retribution – that of desert – requires giving
offenders what they deserve in relation to the crime committed, so restoring the status
of the victim, albeit in the limited form explored above. Nevertheless, we also have
argued implicitly that what the offender deserves also includes assistance to serve the
ends of social justice. It is via these ends that we recommend the practice of desistance,
acknowledging the importance of building socio-economic capital for the offender to
help reduce the chances of re-offending. Consequently, ethically speaking a retributive
justification for punishment is only sufficient if matters concerning the diminished
social and economic status of most offenders are also addressed. It is in addressing the
latter especially that our understanding of social responsibility gains critical purchase.
That is, focussing on the social relational context of identity formation and the way
offenders as a group are often detrimentally viewed and treated in wider society. Using
15
this account of social responsibility allows for a retributive justification of punishment,
but operating alongside promoting restorative and rehabilitation principles of both
criminal and social justice.
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