Why Retributivism Needs Consequentialism: The Rightful Place of Revenge in the Criminal Justice System

56 Pages Posted: 1 Feb 2014 Last revised: 5 Mar 2015

Ken Levy

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Date Written: January 30, 2014

Abstract

Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he didn’t?

This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to see defendants like George Zimmerman be forced to “pay” for the harms that they needlessly and culpably inflict on others. While this point may seem obvious, it isn’t. Most people repudiate revenge and therefore the notion that it plays any role in the criminal justice system.

Second, this attitude toward revenge is misguided and needs to change. We need to recognize that vengeance not only does but should play a significant role in motivating criminal punishment. Our vengeful reactions to harmful crimes are not ugly or shameful; on the contrary, they manifest a deep valuation of victims and a bitter denunciation of individuals who actively renounce this valuation through their criminal behavior.

Third, these two points have significant implications for the two main theories of criminal punishment: “retributivism,” which says that criminals should be punished in order to give them their “just deserts,” and “consequentialism,” which says that criminals should be punished in order to bring about such good consequences as deterrence, incapacitation, and rehabilitation. Traditionally, these two theories have been at war with one another. But I will show how recognizing revenge as a motivation and justification for punishment can help to end this war and bring these two theories together.

Keywords: revenge, vengeance, retributivism, consequentialism, expressivism, desert, responsibility, criminal punishment, harmless, harmful, forgiveness, mercy

Suggested Citation

Levy, Ken, Why Retributivism Needs Consequentialism: The Rightful Place of Revenge in the Criminal Justice System (January 30, 2014). 66 Rutgers Law Review 629 (2014). Available at SSRN: https://ssrn.com/abstract=2388378

Ken Levy (Contact Author)

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

420 Law Center Building
Baton Rouge, LA 70803
United States

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