Punishment Theories in the Here and Now Explored in Professor Adam Kolber’s Book Talk
Examining and critiquing criminal law theories of punishment, their justifications, and their contrasting approaches, Professor Adam J. Kolber’s new book, Punishment for the Greater Good (Oxford University Press, June 2024), was the subject of a spirited panel discussion on Oct. 17 at the Subotnick Center.
The panel, moderated by Brooklyn Law’s Les Fagen Professor of Law Alice Ristroph, included distinguished philosophy and legal scholars Chad Flanders, Professor of Law and (by courtesy) Philosophy, St. Louis University School of Law; Nathan Hanna, Associate Professor of Philosophy, Drexel University; Kierstan Kaushal-Carter, Provost's Postdoctoral Fellow in Law, University of Pennsylvania Carey Law School; and Benjamin Vilhauer, Professor and Chair, Department of Philosophy, CUNY City College and Graduate Center.
In his welcoming remarks, President and Joseph Crea Dean David Meyer spoke of the fundamental and timeless nature of the themes Kolber addresses in his scholarship, “including the theoretical justification for the community acting through the state to impose punishment on individual members,” and the “urgent policy questions we now face about incarceration, decriminalization, alternative forms of community intervention, and socialization.”
"What, if anything, justifies the suffering and deprivation of liberty associated with incarceration and other forms of punishment?" asked Kolber in introducing his work and the contrasting punishment theories of retributivism and consequentialism that attempt to answer that question. “Retributivists say that punishment is appropriate when wrongdoers get what they deserve in proportion to their wrongdoing,” he said. “Consequentialists, by contrast, claim that if punishments like incarceration are justified, they are justified because they lead to good consequences, such as crime prevention and offender rehabilitation, that more than make up for the suffering and other bad consequences they inevitably cause.”
The overarching argument made in his book, Kolber explained, is that in order to address incarceration in the here and now, “a pure consequentialist approach to punishment (one that denies the value of deserved suffering) is better than the standard retributivist approach (which justifies suffering based on moral desert).”
He then presented the main claims of the book, emphasizing that even though proportionality is central to punishment, its meaning is elusive and it can have very counterintuitive implications. He defended a consequentialist approach that gives greater weight to the suffering of those incarcerated and “advocates both more experimentation in the criminal justice system and more creativity to help us find better ways to reduce our reliance on jails and prisons.”
Responding to Kolber’s arguments for the pure consequentialist approach, the panelists presented their reasoned points of agreement and disagreement, which prompted a dynamic exchange with Kolber and fellow experts.
Flanders spoke of the difficulty in “applying consequentialism concretely,” moving from theory into practice. In particular, he referred to the challenges of applying consequentialist cost-benefit analysis in the criminal justice system. He defended a more traditional emphasis on fairness and the idea of proportional punishment that retributivism includes. “We can’t get rid of proportionality, as much as we try,” Flanders said.
Hanna said he appreciated Kolber’s “creative and challenging criticisms of retributivism, and that the work seriously engages with prisons and their concerns and is motivated by a humane concern with everyone's welfare.” That said, he professed to being skeptical of reliance on moral theories and “appealing to them as a way to defend positions and efforts of public policy” and detailed his reasoning for that position.
“It is hard to think of a more severe treatment for a person than to confine them to incarceration,” said Kaushal-Carter, in weighing her thoughts on both the consequentialist and retributivist positions. “Even for short terms, incarceration can cause irreparable harm to the people who experience it, and their loved ones. The seriousness of incarceration is a punishment that fits with the high justificatory bar that retributive theory has to clear in order to inflict it.” She added that she admired Kolber’s work for raising the possibility of carceral abolition and hopes her comments invite consideration of abolition as a moral imperative.
Vilhauer discussed Kolber’s epistemic challenge to retributivism. He supports Kolber’s claim that it is puzzling why retributivists demand such a high standard of proof (the “BARD” standard of proof beyond a reasonable doubt) when considering questions of guilt yet seem to tolerate much lower levels of confidence about fundamental moral propositions that retributivists must also believe. For example, retributivists who seek to punish must believe that we have the kind of free will that generates moral responsibility. Vilhauer questioned, however, whether Kolber’s argument might be turned around to ask whether consequentialists can have adequate confidence in their views in order to punish.
Ristroph raised questions about whether we can accurately assign levels of confidence to moral propositions and whether we have enough evidence to believe that incarceration truly does have a deterrent effect. She referenced psychological research about human bias that shapes our analysis of issues related to punishment.
“I’m so grateful for everything that everyone had to say,” Kolber said, before launching the lively Q&A period. “The consequentialist’s dream is to reduce total suffering in the world, and if they can do it that’s great whether it be through carceral abolition or other creative proposals that reduce suffering while maintaining public safety. The important thing is that we need to have an open mind and be more willing to experiment. I hope we accept the consequentialist invitation to do so.”