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Retributive Justice in the Real World

Publication Title

Washington University Law Review

Abstract

Part I of this Article looks to retributive theory to see what it says or suggests about how to enforce the law, either in terms of imposing constraints (telling officials what they may not do) or offering affirmative guidance (telling officials what they should do). Different versions of retributive thinking imply different options or mandates for law enforcement. Canvassing and generalizing from the literature, Part I describes three possible implementation approaches that a legitimately retribution-oriented theory might adopt. Part I also considers the position that retributivism simply has nothing to say about enforcement, and notes two possible approaches grounded in that position. Part II discusses in more detail what a real-world retribution scheme might look like under each of the three versions of a retribution-based criminal justice theory sketched in Part I. The discussion explores what practices each theory might endorse or prohibit for police and prosecutors seeking to do justice as best they can. In doing so, Part II raises practical considerations and undesirable potential consequences that might complicate, or militate against, the implementation of these general options. Part III evaluates the options for real-world retribution, both conceptually and practically, in light of the obstacles and drawbacks that surface in Part II. The Article concludes that only one option seems to offer a genuine and (relatively) workable vision of how to implement retributive justice in the real world. That approach, “consequentialist retributivism” (CR), would view retributive punishment as a goal to maximize rather than a categorical ex ante commitment, as other approaches would have it. Interestingly, though the CR approach has considerable intuitive appeal in this context, it has thus far apparently received no explicit, sustained defense in the scholarly literature. One significant contribution this Article seeks to make is to provide such a defense of the CR approach, which might be the only version of retributive justice possible, or at least worth pursuing, in the real world.

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