Punishment, Proportionality, and Justice: A Roundtable on the Philosophy of Retribution
What is the point of punishment? When a court sentences a person to prison, what are we, as a society, trying to achieve? Are we trying to deter future crime? Rehabilitate the offender? Or are we simply giving them what they deserve? This last idea—that punishment is a matter of just deserts—is the core of a theory known as retributivism. It’s a concept that resonates deeply in our everyday conversations about justice, tapping into a powerful intuition that wrongdoing should be met with a fitting response.
Yet, this seemingly simple idea is fraught with philosophical and practical challenges. A landmark 1978 paper by philosopher Hugo Adam Bedau, "Retribution and the Theory of Punishment," meticulously dissected the retributivist project, and its critiques remain as potent today as they were over four decades ago. The paper serves as the foundation for our recent roundtable discussion, where a panel of distinguished experts from philosophy, law, criminology, and social theory gathered to re-examine the case for and against retribution.
The Framework of the Debate: Bedau’s Analysis of Retribution
To understand the debate, we must first understand Bedau's framework, which he borrows from the legal philosopher H.L.A. Hart. According to this model, any retributive theory of punishment rests on three core tenets:
- R1: The Principle of Responsibility. A person may be punished if and only if they have voluntarily done something wrong. This principle grounds punishment in culpability and forbids punishing the innocent or those who are not responsible for their actions.
- R2: The Principle of Proportionality. The punishment must match, or be equivalent to, the wickedness of the offense. This is the familiar call to "make the punishment fit the crime."
- R3: The Principle of Just Requital. The ultimate justification for punishment is that the return of suffering for moral evil is itself morally good. Punishment is not a tool for achieving some future benefit like crime reduction; it is an intrinsic good, an act of cosmic balancing.
Bedau’s critique is a systematic dismantling of this structure. He argues that the model is incomplete, notably omitting the concept of desert, which seems central to the entire idea. More critically, he finds the two pillars of the theory—proportionality (R2) and justification (R3)—to be profoundly unstable.
On proportionality, Bedau argues that retributivists are caught in a dilemma. If they interpret it strictly as lex talionis (an eye for an eye), it leads to barbaric or absurd results (should we rape the rapist?). If they interpret it loosely, it becomes vague and arbitrary. Bedau reviews contemporary attempts to create rational sentencing scales based on "commensurate deserts" and finds them lacking, unable to provide a non-arbitrary way to connect a specific crime to a specific punishment.
On justification, Bedau finds the core claim of R3—what Hart called a "mysterious piece of moral alchemy"—to be indefensible. How can combining two evils (crime and suffering) create a good? He examines more sophisticated alternatives, such as the idea that punishment corrects an "unfair advantage" gained by the criminal. But, he notes, this argument only holds if society is fundamentally just to begin with—a condition that is hardly met in the real world.
Bedau concludes that retributivism, while speaking to important aspects of justice like responsibility, ultimately fails as a complete or coherent theory of punishment. It cannot tell us what punishments are appropriate and offers a justification that is either mysterious or inapplicable to our society. It is this powerful critique that set the stage for our roundtable discussion.
Meet the Panelists
Our discussion brought together eight leading thinkers, each with a unique perspective on the challenges Bedau raised.
- Prof. Miriam K. Strauss, a philosopher from St. Alban’s College, defends a neo-Kantian version of retribution. She accepts Hart's three principles but reinterprets the justification (R3) not as a creation of good, but as a deontological duty to hold individuals answerable for their choices, thereby respecting their agency.
- Dr. Leif Anders Holm, a behavioral criminologist at the Nordic Institute for Crime Policy, approaches punishment from a utilitarian perspective. He rejects retribution as a justifying aim, viewing sanctions strictly as tools for harm reduction, to be evaluated based on empirical evidence of their effectiveness.
- Hon. Elena P. Villanueva, a Senior Appellate Judge, brings a practical and institutional lens. She advocates for a mixed theory where desert sets the upper and lower bounds of punishment, but the primary goal within that range is crime reduction. Her work focuses on creating transparent and equitable sentencing guidelines.
- Prof. Saira Qureshi, Director of the Center for Reparative Justice, challenges the very premise that punishment must inflict suffering. A proponent of restorative justice, she argues that a just response to crime should focus on repairing harm and fostering dialogue, reframing "desert" as an obligation to make amends.
- Dr. Nolan Baptiste, a political theorist at Howard Metropolitan University, analyzes punishment through the lens of critical legal studies. He argues that in a society marked by deep inequality, retributive claims of "just deserts" often serve as an ideological justification for racial and class-based domination.
- Prof. Tamsin O’Rourke, a feminist legal scholar from University College Dublin, focuses on how abstract principles of proportionality fail to capture the real, lived harms of gendered violence. She advocates for survivor-defined justice and warns against punitive responses that may reproduce patriarchal harms.
- Prof. Wei-Lun Chen, an expert in empirical legal studies and statistics, believes the measurement problems Bedau identified in proportionality can be addressed. He develops sophisticated statistical models to create more transparent and consistent scales for measuring offense seriousness, combining harm and culpability.
- Dr. Petra K. Sokolov, a legal philosopher from Central European University, argues that a retributive response is conceptually necessary for a system of law to have authority. Violating an authoritative rule, she contends, logically entails liability to censure and hard treatment as a matter of practical reason.
The Discussion: Re-evaluating Retribution in the 21st Century
The roundtable discussion was a dynamic and challenging exchange, organized around the central pillars of Bedau’s critique.
What is Punishment? Must It Involve Suffering?
The conversation began with Bedau's foundational claim that any theory must define its subject. He proposed that punishment necessarily involves imposing harm or suffering (A1) for an offense (A2). Professor Qureshi immediately challenged this premise. "The retributive model," she argued, "is fixated on a proportionality of pain. But what if we conceived of desert as a right to be held accountable and an obligation to repair the harm done? A just response could involve community conferencing or reparative duties, which are demanding and hold a person accountable without having suffering as their primary goal."
Dr. Sokolov offered a counterpoint, defending a more traditional view. "While Professor Qureshi’s restorative models are valuable, they are perhaps an alternative to punishment. For a sanction to be distinctly penal," she contended, "it must be conceptually linked to both institutional censure and hard treatment. This is what gives legal directives their authoritative force. A parking ticket is a penalty; a victim-offender mediation session, however valuable, is a different kind of normative practice." Judge Villanueva mediated this, noting that from a practical standpoint, "sentencing guidelines almost always presume hard treatment, like incarceration or fines, but there is growing room for reparative conditions, suggesting the definition is becoming more flexible."
The Enduring Dilemma: Can We Make the Punishment Fit the Crime?
The discussion then moved to Bedau’s most devastating practical critique: the failure of proportionality (R2). Bedau argued that attempts to create a scale of "just deserts" collapse into arbitrariness. Professor Chen presented his work as a direct response to this challenge. "Bedau's critique of the crude Sellin-Wolfgang scales was correct," he stated, "but that was 1960s methodology. We can now build multidimensional indices that separately model harm, risk, and culpability, using modern statistical methods. We can even quantify our uncertainty, creating 'proportionality bands' rather than exact points, which acknowledges the inherent ambiguity."
However, Professor O’Rourke raised a powerful objection. "These quantitative models, no matter how sophisticated, risk cementing a flawed understanding of harm," she argued. "How does a scale measure the long-term loss of autonomy a domestic violence survivor experiences? Or the pervasive fear created in a community by sexual assault? Bedau’s examples—rape and kidnapping—are not just abstract events; their seriousness is shaped by the social position of the victim. Any metric that ignores these gendered and intersectional dynamics is not measuring justice; it's measuring a caricature of it."
Dr. Holm approached the problem from an entirely different angle, dismissing the search for metaphysical "fit." "The question is not 'What punishment is commensurate with the wrong?' but 'What is the minimum sanction necessary to achieve a given level of harm reduction?'" he explained. "Proportionality is useful only as a loose anchoring principle to ensure public legitimacy and prevent draconian excess. Its primary justification is fairness and social consensus, not retributive matching."
This pragmatic view found some sympathy with Judge Villanueva, who noted, "In the real world of sentencing commissions, we create grids that look like what Professor Chen describes, but they are products of negotiation and compromise, informed by data on past practices and resource constraints. We use desert as a guiding rationale, but the final numbers have a deeply practical, not purely philosophical, origin."
The Heart of the Matter: Why Punish at All?
The final and most contentious part of the discussion tackled the justification for punishment (R3). Is it, as Bedau scornfully put it, "moral alchemy"?
Professor Strauss offered a robust defense of a deontological R3. "Bedau and Hart mischaracterize the principle," she asserted. "The point is not that two evils make a good. The point is that a rational agent who has voluntarily violated the rights of another has, by that very act, authored a normative reality in which they are liable to a proportionate response. To punish them is to respect their agency by taking their choices seriously. It is a form of moral accounting, not a utilitarian calculation or a mysterious transmutation of suffering."
Dr. Sokolov built on this, returning to her conceptual argument. "Bedau’s chess analogy—that you can respond to rule-breaking without punishment—is flawed," she said. "Chess is a game. A legal order is an institution that claims authority to structure our shared lives. That claim is hollow without a standing commitment to treat violations as violations, which entails censure and sanction. It’s part of the logic of law."
But it was here that Dr. Baptiste delivered the discussion's most trenchant critique, channeling the argument Bedau himself had noted. "These justifications—whether based on respecting agency or the logic of law—presuppose a just background order," he argued. "But what does it mean to talk about an offender correcting an 'unfair advantage' when they began with profound, systemic disadvantages? In a society structured by racial and economic injustice, the practice of punishment doesn't function as moral accounting. It functions as a tool of social control, and 'just deserts' becomes the righteous-sounding language of domination. Bedau's concern that the theory is inapplicable is not a minor quibble; it is the central, fatal flaw."
This powerful intervention reframed the debate. The question was no longer just whether retributivism is philosophically coherent in the abstract, but whether it can be ethically applied in the here and now. Professor Qureshi suggested that restorative justice, by focusing on concrete harms and stakeholder needs, is better suited to navigating these non-ideal conditions. Judge Villanueva acknowledged the force of the critique, arguing that it's why procedural justice, transparency, and robust appellate review are essential—to place checks on a system that is, admittedly, operating in a flawed world.
Conclusion: An Unresolved, Essential Debate
The roundtable concluded without a simple consensus, a testament to the enduring power of Bedau’s original critique and the complexity of the issue. The discussion revealed a deep chasm between those who see punishment as a forward-looking tool for social good (Holm, Qureshi), those who see it as a backward-looking demand of justice (Strauss, Sokolov), and those who see it as a practice whose legitimacy is fundamentally compromised by social inequality (Baptiste, O'Rourke).
While the panelists disagreed on the ultimate purpose of punishment, there was a shared sense that any just system must adhere to the principle of responsibility (R1) and strive for a non-arbitrary form of proportionality (R2), even if its justification remains contested. Hugo Adam Bedau’s paper did not solve the puzzle of retribution, but as our discussion showed, it laid out the terms of the problem with such clarity and force that we are all still working in its shadow, striving to build a system of justice that is not only effective, but also, and more importantly, fair.