Should a Prisoner Be Punished Even If It Helps Nobody?
The Case of the Harmless Criminal
Imagine you are a judge. A person has just been found guilty of a brutal attack. But after the crime, a disease left the attacker permanently bedridden and wealthy enough to live without ever hurting anyone again. You have a strange option. You could send him to a tropical island where he would relax all day, but with one rule: every week he must put on a prison uniform and film a short clip that gets posted online. It would look like he is serving a harsh sentence. That video could scare off other potential criminals. The sentence would achieve all the goods that people usually want: it would stop this person from ever attacking again, and it would discourage others. Yet something in your gut rebels. Many people feel that even if nobody is made safer, the attacker still deserves to suffer real punishment, not a fake one. That gut feeling is the beating heart of a theory called retributive justice.
This theory says that when someone does a serious wrong, the punishment is not just a tool for future safety. It is a matter of giving the wrongdoer what she morally deserves, simply because of what she did. The idea feels powerfully intuitive. But can it be justified?
Two Rival Theories: Deserts Versus Future Good
Philosophers have long debated two main approaches to punishment. The first is consequentialism. This view says a punishment is justified only if it makes the future better — for example, by deterring others (scaring them away from crime) or by incapacitating the criminal (making it impossible for her to offend again). On this picture, if punishing someone would not improve anyone’s safety or well-being, then punishment is pointless and wrong.
Retributivism disagrees sharply. The philosopher Michael Moore (b. 1943) describes it like this: punishment is justified by the offender’s desert. That means the wrongdoer has done something that makes suffering punishment fitting, regardless of any further good that might flow from it. Retributivism has two parts. The positive desert claim says that wrongdoers morally deserve hard treatment — real consequences that are painful or burdensome. The negative desert claim says you may never punish someone who has done no wrong, and you may never punish a wrongdoer more than is proportional to the seriousness of her crime. Proportionality is the idea that the punishment should match the weight of the offence: a stolen snack cannot be answered with years in prison.
A milder view, called negative retributivism by the philosopher H.L.A. Hart (1907–1992), keeps only the negative side. On this picture, committing a wrong forfeits (wipes away) your right not to be punished, but it does not, by itself, give anyone a positive reason to punish you. The positive reason must come from consequentialist goals. Crime just opens the door; deterrence and incapacitation walk through it.
That might seem like a small difference, but it matters. A full-blown retributivist can say: “The thing that makes this an act of punishment, rather than just using a person for social safety, is that she deserves it.” And when a punishment is less than someone deserves — say, a plea bargain — the positive retributivist can still maintain that some desert-based reason exists, even if outweighed by practical benefits. The negative retributivist cannot; she must find all justification in the future good. Many philosophers worry that this turns punishment into using wrongdoers merely as a tool, which feels disrespectful.
The “Fairness” Argument: Did the Criminal Cheat?
If we are going to claim that wrongdoers deserve hard treatment, we need a deeper story. Why would that follow from doing wrong? One famous attempt was made by the legal philosopher Herbert Morris (1928–2022) in 1968. Morris asked us to picture society as a system of shared burdens. In order to live together peacefully, we all accept limits on our behaviour: we don’t steal, we don’t hit others, we don’t cheat. Carrying these limits is like carrying a heavy bucket uphill together. A criminal, Morris argued, refuses to carry the bucket while still enjoying the benefits of the safety created by everyone else’s effort. He gains an unfair advantage. Punishment is a way of taking that advantage away — of “exacting the debt” — and restoring a fair balance.
The idea is elegant and has been hugely influential. But critics soon pointed out serious cracks. Does a violent attacker really gain an “advantage” that others wanted? Most people don’t secretly wish they could beat someone up and are held back only by the law. The unfairness story seems to miss what is truly terrible about a crime like rape or murder. The wrong is not primarily about free-riding on a social contract; it is about harming another human being. If a fraudster steals millions of dollars, she might gain a much larger unfair advantage than a murderer, but we usually think the murderer deserves far more punishment. The fairness model struggles to explain that.
A later version of the idea tried to fix this by saying the benefit is the opportunity to live in a secure society, and the wrong is simply failing to accept the burdens that make that security possible. But even then, the theory seems to tie the severity of punishment to how much a person shirked her duty, not to how much she harmed a victim — which feels out of step with our deepest judgments.
The “Message” Argument: Who Was in Charge?
A different approach was offered by the philosopher Jean Hampton (1954–1996). She agreed that retribution is not about restoring a fair balance of benefits, but about something more personal and expressive. When a criminal victimizes someone, Hampton argued, she is doing more than causing harm. She is sending a message that she is above you and can treat you as a tool for her purposes. The crime is an affront to the victim’s equal worth. In Hampton’s words, the wrongdoer “has declared himself elevated with respect to me.” The point of punishment, then, is to defeat that false claim. By making the wrongdoer suffer at the hands of the community (acting for the victim), we symbolically humble the one who acted like a lord, and we reaffirm that the victim is just as valuable.
This theory moves closer to the emotional core of retributive feelings: we want the wrongdoer to “lose” after having acted as a bully. Still, it faces tough questions. First, if a criminal simply has a mistaken belief about her own superiority, why is punishment needed to correct it? A public statement of condemnation — what philosophers call censure — could do that job without any hard treatment. Hampton’s reply is that actions speak louder than words; we show we really mean the equality message by imposing a real cost. But then why does the cost need to rise in proportion to the seriousness of the crime? A standard penalty — a short, sharp shock — could send the same message for petty theft as for murder. Yet we think punishment should scale up. And there is a deeper worry: if the victim (with the community’s help) gets to dominate the wrongdoer in return, the message may not be “we are all equal” but rather “now I’m the lord” — which sounds more like revenge than justice.
Modern communication theories, such as the one developed by Antony Duff, try to combine censure with the idea that hard treatment can help the wrongdoer understand the weight of what she has done, and even lead her to repentance and repair. But skeptics point out that hard treatment often alienates people further, and no one has yet shown convincingly why suffering is a necessary part of that conversation.
Why Your Feeling About Punishment Still Matters
So where does this leave us? The retributive intuition — that wrongdoers simply deserve to suffer — runs deep in most human beings. When someone commits a terrible act and seems to “get away with it,” many of us feel a real sting of injustice that has nothing to do with future safety. Yet centuries of careful philosophy have not produced a widely accepted argument that shows why hard treatment is deserved, beyond that gut feeling. Michael Moore once imagined committing a terrible crime himself, and said he would hope to feel guilty “unto death” and would therefore welcome punishment. But critics reply that guilt and self-punishment in the first person do not prove that others have the right to impose suffering. And as the philosopher Jeffrie Murphy (b. 1940) later reflected, perhaps his own enthusiasm for retributive justice came from a “soul that squints” — a stingy, accountant-like craving to settle scores — rather than from moral clarity.
Still, the negative side of retributivism — the idea that punishment must never be wildly out of proportion to the crime — is almost impossible to abandon. Even if we cannot fully explain why wrongdoers deserve hard treatment, we fiercely believe there is a limit. That belief shapes our laws against cruel and unusual punishment, and it whispers in your ear when a bully gets a suspension that feels too harsh or too light for what she did.
The puzzle of retributive justice is not just for judges and lawmakers. It shows up whenever you argue about whether a friend “deserves” to be grounded, or whether a rule at school is fair. The next time you feel that mix of anger and fairness in your chest, you’ll be standing right where philosophers have stood for centuries — squinting at the scales, unsure whether they rest on a solid rock or on a deep, unexplainable human need.
Think about it
- If a new medicine could instantly turn every criminal into a kind and safe person, would there still be a reason to punish them for what they did?
- When you see a bully punished, does it matter more to you that the punishment fits the bullying, or just that the bullying stops?
- Can you picture a community where nobody ever felt the urge to punish someone just because they “deserved” it? Would that community be healthier, or would something valuable be missing?
