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Article Title

Retribution's Role

Document Type

Article

Publication Date

Fall 2009

Publication Citation

84 Indiana Law Journal 1129 (2009)

Abstract

Two main types of principle, retributive and consequentialist, have long been identified as the main approaches to justifying criminal punishment. Retributivists deem punishment justified by the wrongdoing of the offender, whereas utilitarians deem it justified by its good consequences such as deterring future crime. Over the past fifty years, each has spent decades as the dominant theory, and many hybrid theories have also been advanced. But few, if any, of the hybrid approaches have valued heavily both retributive and consequentialist considerations while locating the particular justificatory role each category plays. This Article points in that direction by reframing the central question of punishment justification as two questions: Why does the state have a right to punish, and why does it choose to exercise that right? The first question is answered most naturally by retributive considerations, whereas the second identifies the most natural space for utilitarian values. This framing device, it is hoped, resolves some of the disputes between retributivists and utilitarians while sharpening the focus on those that remain.

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