Response from Peter S. Fosl on December 1, 2005

An interesting thought. My suspicion, however, is that most sentenced to death would prefer life in prison. That may not conclusively demonstrate much, but if true it at least shows that those convicted of crimes regard life in prison as a less severe punishment. Keep in mind that even inside a cell the mind may enjoy wide expanses, and if Aristotle is correct there are even very simple pleasures bound up with the mere act of living and perceiving the world. Then, of course, prison does offer some opportunities for sociability, for reading, for entertainment, and for contemplation.

There is a sense, however, that you are right in saying that the criminal has still gotten away with it--namely, no punishment or repentance can fully restore the state of affairs that preceded the crime. Those murdered, for example, can never be brought back. In a sense, despite their defeat the Nazis did "get away" with killing millions and millions of innocent people. But this defficiency remains true of all options in dealing with crime. It's one of the central thoughts driving Ivan Karamazov's moral rebellion againnst God in Dostoevsky's "The Brothers Karamazov." The only perfect form of restoration would be to make so the crime didn't happen in the first place.

Response from Richard Heck on November 24, 2005

Response from Joseph G. Moore on November 18, 2005

No, of course not! ...or so I first thought; but then your argument moved me; but now I again think...
No, of course not!

A's first punishment was probably unjust--certainly unfortunate. But if A now kills B, then A should be punished anew on any of the four halfway-plausible and at-least-sometimes-applicable justifications for punishment that I can think of.

Deterrence: If we don't punish A anew, then we'll experience a crime-wave of similarly pardoned ex-cons (assuming certain ugly things about human nature).

Rehabilitation: Well, incarceration didn't exactly work any criminal tendencies out of A, did it? (And it doesn't generally seem to accomplish much rehabilitation, at least in the U.S..) But if incarceration would promote rehabilitation, which A surely needs, then A should be incarcerated.

Public safety: Things didn't go so well when A was let out, so we're all better off keeping him in the slammer.

Retribution: Here's where your argument has some force. If the score for B's death is properly settled by a certain punishment of A, then why does it matter when this punishment takes place? A punishment delayed is not a punishment denied, so why not one ahead of time? If it's eye for an eye, does it matters which gets poked out first?

The retributivist might say that we need to distinguish carefully between the different killings of B, actual and merely possible. A's first punishment was for one (supposedly by poison) that didn't take place, but that can't be used to settle a different killing--the one that actually took place (by shooting). But this doesn't seem so convincing, particularly if you think of different types of punishments, like fines. Why can't I apply my credit for the fine the IRS now admits I needn't have paid to the fine it might charge me if it audits the bogus tax-return I'm about to send in? (Although here there's the possibility of applying the credit to something other than a potential fine, like a better tax accountant; but the years poor A lost during the first punishment can't now be spent in some other way.)

The retributivist might also say that retribution requires that the punished suffer the punishment knowing that the punishment is for a certain crime. I'm not sure, though, that retribution is always thought to work this way (consider trans-generational retribution); and in any case, you can easily concoct cases where the criminal knows exactly what crime s/he wants to commit (and exactly when), and then calculates that it's more efficient to pay the price ahead of time.

The retributivist might also say that a punishment can't really count as retribution--as a making of amends--if it happens before the crime. But this seems just to answer your question by stipulation.

Finally, the retributivist might just bite the bullet: in so far as punishment is about retribution, then A has, in fact, pre-paid for the killing of B. That's what I think the retributivist should say.

So...Nice argument. And so much the worse for retributivism. Good thing we needn't hold that justified punishment is entirely about retribution. Good thing I don't think any is: it's not clear to me that retribution promises to improve the world's future in any way. And even when--especially when--it comes to punishment, we have to move on.

Response from Matthew Silverstein on October 28, 2005