The theory of retributive justice has ancient roots in the lex talionis, the law of retaliation. This rests upon a system of equivalences: eye for eye, and life for life. This system limits the excessive violence of revenge. Retribution says that you can only take an eye for an eye—and no more than that.
Thomas Jefferson considered the lex talionis, as he drafted a system of punishment for the state of Virginia that included castration as a punishment for rape, polygamy and sodomy. But we no longer castrate rapists. And sodomy is no longer a crime. The demise of capital punishment seems to be a further step on this path of evolution.
In the old days, corporal punishment was often done in public. It thus had a strong deterrent effect. But these days, the few criminals we do execute are killed in secluded places out of the public eye. Any deterrent effect of capital punishment is thus undermined. And since we no longer use corporal punishment, time served in prison is the universal currency of punishment.
Prisons evolved out of the idea of the “penitentiary” as a place to become penitent. A criminal alone in a cell with a Bible might repent. But religious transformation is not a focus of modern prisons. And the rationale behind prison sentences is convoluted. The way we convert crime into prison-time has little to do with the lex talionis.
For example, when Trump crony Paul Manafort was sentenced to prison, critics noted that his sentence was lighter than what less affluent criminals get. Wealth and race undermine the ideal equal justice. Such disparities also hold with regard to death sentences.
We also trade punishment for cooperation. The trials emerging out of the Washington swamp include offers of leniency. But plea bargaining violates the idea of lex talionis, since it gives the crook less than what he deserves.
So maybe retributive justice is less important than the overall goal of crime prevention. Plea bargains get crooks off the street, even if people plea to crimes they did not commit. But if crime prevention is our goal, we should also consider restorative justice, rehabilitation, and other efforts to transform communities. Alternatives to incarceration put people back to work and keep them with their families.
Another complication is the idea that retributive justice should give way to more humane values such as mercy, love, and forgiveness. It was Jesus who said that “eye for an eye” should give way to turning the other cheek (Matthew 5:38-39). But forgiveness and mercy fail to give people what they deserve.
So where does this leave us? Well, our system of punishment is a tangled mess. The U.S. has the world’s largest prison population. Racial and economic disparities are woven throughout the system. California has the largest death row population in the country. But now the 737 people on death row will not be killed.
The good news is that crime rates have fallen over the past decades. The bad news is that our moral and cultural differences make it unlikely that we would ever achieve consensus about criminal justice. Some may want us to go back to the era of Thomas Jefferson and re-instate castration for rapists and other forms of corporal punishment. Others will argue that the death penalty is just and necessary. But some will cheer on the demise of the death penalty as the dawning of a more humane and enlightened era.