Rethinking Retributivist Thought Experiments: An Abolitionist Critique

Abstract:     
Retributivist arguments often employ thought experiments meant to elicit various responses from us - materials with which, it is hoped, compelling arguments for punishment can be constructed. Many think that these experiments help make a prima facie case for punishment, that they highlight reasons that speak unequivocally, if not decisively, in punishment's favor. Retributivist use of these experiments has gone insufficiently challenged. I plan to turn the tables on the retributivist. These experiments do not highlight reasons for punishment. In fact, examination of these experiments and arguments that have employed them can help emphasize the strength of Abolitionism, the view that punishment is unjustified. I will show how these experiments have been and can be mishandled and what insights can be taken from them once we identify the errors that have plagued their use. Retributivist arguments employing these experiments suffer from a variety of problems. They rely on dubious and ambiguous claims about the nature and content of the responses elicited by the experiments, misconstrue the moral import of some of the responses, and insufficiently question and often perpetuate mistaken assumptions that influence the responses.

Keywords: punishment, retributivism, justification, desert, justice, criminal law, abolitionism

Working Paper Series