The theory of retributive justice is the idea that punishment should duly establish a penalty that is deserving of the crime. Such penalties should be set proportionally to the seriousness of the offense where all those that commit equal offenses should receive equal punishments. The debate of whether the government and the American court system have the right to seek such justice is an issue unresolved for decades. This debate will continue into the future as developments in individual rights and justice continually transform. Government policy on this issue has likewise altered the focus of the American criminal justice system over time as popular theory on crime and punishment has changed.

There is much information that can be found in the support for and against retribution as a valid form of punishment. Current alternative theories on sentencing do not offer the American justice system a policy of justice while still being adequate enough in protecting rights. The advent of expanded rights of the individual, to include that of the offender has resulted in the formulation of doubts for the use of retributive justice in contemporary America. As the United States Supreme Court expanded individual and civil rights during the 1960s and early 1970s, much concern fell on the rights of the accused. In more recent years, consideration and focus of the criminal justice system has shifted back toward the rights of the victims. With this, the policies of sentencing must not sway too far in order not to violate protected offender rights. No matter the type of sentencing in effect in the criminal justice system, the rights of the offender, as well as that of the victim must be protected. Retribution is the single policy of sentencing that establishes a protection against unjust or unequal adjudication of the law. This in effect takes away the arbitrariness of judicial discrepancies during the sentencing phase of an offender’s hearing. 

In order to determine the type of punishment most suitable in the contemporary American criminal justice system, it is important to understand the criticisms for and against such sentencing methods. By understanding these arguments we can see that opponents give no suitable alternatives that will provide adequate and equal punishment to the offender while also protecting the rights and safety of the victim. Much of the recent developments in the area of punishment and sentencing have been toward the protection of offender rights. As a consequence of this, the criminal justice system has lost site of the victims of crimes’ needs. Expert Larry J. Siegel explains in his book “Criminology”, that in a just society, criminals are punished proportionately to the severity of their crimes. The offenders’ rights should be protected however, not at the expense of the rights of the victim.

One of the most important of the debates on sentencing and among the most controversial is the concept of capital punishment. Thought to be the most powerful of all government authorities, this power is exercised when a governmental decides to end the life of one of its citizens as punishment for committing a crime. Capital punishment is seldom used in light of the number of offenses committed yearly in America; however, when it is used, it is reserved for the most violent of offences. A controversial punishment throughout American history, America remains the only Western democracy that provides for the death penalty as a possible sentence for committing a crime. Opponents of retributive sentencing argue against its use because of its acceptance of the use of the death penalty in certain cases. However, as a definitive argument, capital punishment and retributive sentencing both hold that the need to use the death penalty must be determined by a jury. Further, it is reserved specifically in cases where the offense required adequate punishment proportional to the crime. The accepted use of capital punishment does not however, allow for excessive punishment against any offender. Even when used, the rights of the offender are considered and protected.

Many believe it is the government’s moral obligation to rehabilitate offenders and not just to instill punishment for offenses. However proponents of the eye for an eye philosophy of retributive justice argue that the bureaucratic nature and size of the American criminal justice system makes it inaccurate and unable to establish whom rehabilitative treatment would work for and alternatively which individuals would not be helped by such treatments. In their third addition book “Criminal Justice”, Adler, Mueller and Laufer conclude that the choices are limited to returning to a system of retribution which at the bare minimum guarantees similar sentences for similar crimes. It is not within the capacity of the criminal justice system to rehabilitate criminals. Punishment should be proportionally subjective to the extent of the harm done during the commission of the offense. By following a policy that provides equal punishments for like crimes, the government will not only protect offenders from injustices during sentencing but also provide for continued protection of victims. This is possible by establishing a level of punishment as deterrence against other potential offenders.

Retributive punishment conforms to the theory of social harm which is the idea that behavior that is harmful to people and society in general must be controlled. Actual crimes are separate from those acts that are only considered to be immoral. Those that are defined to be extremely harmful to society are usually outlawed. For those actions which society decides are harmful, there must then be established a punishment for committing these particular acts. Retributive punishment acknowledges that each punishment should then be equal in severity to the harm, or potential harm done to society.

The American criminal justice system has moved away from the central idea of protecting society and protecting the victim, in view of safeguarding offenders’ rights. Retributive punishment refocuses the justice systems energies, to once again protect the victim, while still providing safeguards for offenders. It is necessary for the American criminal justice system to utilize a type of punishment that offers equal justice for not only the offender, but the victim as well. The theory of retribution ensures that every offender will receive equal punishment for equal offenses, throughout the country. This type of sentencing is unique in that it provides a remedy to the increasing instances of unequal punishment found in American criminal justice. 

Although there is extensive information in the support for and against retribution as a valid form of punishment, no other theory of sentencing provides for equal and fair treatment under the law. The advent of expanded rights of the individual, specifically the rights of the offender, has resulted in doubts of the use of retributive justice in American society. This debate will continue into the future as development in ideas of rights and punishment change. Likewise, government policy will also change with that of popular belief on crime and punishment in America.

For more information on the validity of retributive justice in American criminal law see the following works:

Bradley, Gerald V. (2003). “Retribution: The Central Aim of Punishment.” Harvard Journal of Law and Public Policy 2003: v27 i1 p19(13).

MaGuire, Brenda and Radosh, Polly F. The Past, Present and Future of American Criminal Justice New York: General Hill, Inc. 1996.

Sigler, Mary. “Contradiction, Coherence, and Guided Discretion in the Supreme Court’s Capital Sentencing Jurisprudence.” American Criminal Law Review 2003: v40 i3 p115(44)