The Hedgehog Review

The Hedgehog Review: Vol. 18 No. 3 (Fall 2016)

The Justice of Retribution

Jeffrie G. Murphy

The Hedgehog Review

The Hedgehog Review: Fall 2016

(Volume 18 | Issue 3)

Mourn no more, children. Those to whom
The night of earth gives benediction
Should not be mourned. Retribution comes.
Oedipus at Colonus, Sophocles

It is now widely accepted that there is something deeply wrong with America’s criminal justice system. Too many social problems are dealt with through criminal punishment, problems such as the “war on drugs” for which the system is manifestly ill suited. This partly explains why the United States has 25 percent of the world’s prison population and only 5 percent of its total population. Also, many of those who are incarcerated in the system are often sentenced to terms of excessive length in prisons that are rampant with cruelty—rape and rule by gangs being the order of the day—or subjected to such soul-destroying treatment as long-term solitary confinement.1 Such conditions are likely to make inmates worse people when they come out than when they went in. This is of concern not just to those who might be dismissed as bleeding-heart-soft-on-crime sentimentalists but also to those whose credentials as hardheaded realists cannot be doubted. Consider, for example, the comments Richard Posner (chief judge of the US Court of Appeals, Seventh Circuit, and one of the founders of the very unsentimental law and economics movement) in his dissenting opinion in the 1995 prison conditions case Johnson v. Phelan. This was a case addressing a situation in which prison inmates were frequently observed naked—in their cells, in the showers, and in the toilet—by female guards, and counsel for the plaintiff argued (without persuading a majority of the judges) that this was a constitutionally prohibited violation of their privacy. There are, Posner wrote,

different ways to look upon the inmates of prisons and jails in the United States. One is to look upon them as members of a different species, indeed as a type of vermin, devoid of human dignity and entitled to no respect.… I do not myself consider [them] in this light.… We should have a realistic conception of the composition of the prison and jail population before deciding that they are a scum entitled to nothing better than what a vengeful populace and a resource-starved penal system choose to give them. We must not exaggerate the distinction between “us,” the lawful ones, the respectable ones, and the prison and jail population; for such exaggeration will make it too easy for us to deny that population the rudiments of humane consideration.2

What is the cause of the deplorable state of the American penal system, and what can be done about it? A variety of distinguished scholars of criminal law—Susan Bandes, Martha Nussbaum, and Carol Steiker, for example—have suggested that the villain is easy to identify: retribution as the value now dominating the system. Replace that value (and the vengeful and angry emotions that drive it) with something else—mercy, or even love, perhaps—and the system will be on the road to recovery.

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  1. Consider, as just one example of excessive sentences, the much-discussed case of Weldon Angelos, who was sentenced to a minimum of fifty-five years in a federal prison for the nonviolent offenses of low-level marijuana dealing and illegal possession of a weapon. After pleas from Families Against Mandatory Minimums, the prosecutor, and the sentencing judge, Angelos was released after serving thirteen years. Some might, of course, think that even that period of incarceration was too severe, given the nature of his crime. (A Google search on “Weldon Angelos” produces a variety of useful discussions of this and similar cases.) On the issue of prison rape, see Mary Sigler’s essay “By the Light of Virtue: Prison Rape and the Corruption of Character,” Iowa Law Review 91 (2006): 561–607, available at the Prison Legal News website: For a discussion of the effects of long-term solitary confinement, see “Alone, in ‘the Hole’: Psychologists Probe the Mental Health Effects of Solitary Confinement,” Kirsten Weir, Monitor on Psychology 43, no. 5 (2012): 54−56, See also a video segment (with accompanying film links) on the PBS series Frontline titled “Locked Up in America: What Does Solitary Confinement Do to Your Mind?,” Jacob M. Breslow, April 22, 2014,
  2. Johnson v. Phelan, No. 93-3753, US Court of Appeals, Seventh Circuit, 1995, WL 621777 (7th Cir. (Ill.)).

Jeffrie G. Murphy is Regents’ Professor of Law, Philosophy, and Religious Studies at Arizona State University. He is a past president of the American Philosophical Association and presented the 2010 Stanton Lectures to the Faculty of Divinity at the University of Cambridge. His most recent books are Getting Even: Forgiveness and its Limits (2003) and Punishment and the Moral Emotions: Essays in Law, Morality, and Religion (2012). A much fuller treatment of his views on retribution (including some constraints on the legitimate application of the concept and several examples of important recommended changes in criminal law that could be best defended in terms of retributive values) is provided in his essay “Last Words on Retribution,” in The Routledge Handbook of Criminal Justice Ethics, edited by Jonathan Jacobs and Jonathan Jackson (2016).

Reprinted from The Hedgehog Review 18.3 (Fall 2016). This essay may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission. Please contact The Hedgehog Review for further details.

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