Three Mistakes of Retributivism
![handle is hein.journals/uclalr39 and id is 1637 raw text is: THREE MISTAKES OF RETRIBUTIVISM
David Dolinko*
It is widely acknowledged that retributivism, once treated as
an irrational vestige of benighted times,' has enjoyed in recent years
so vigorous a revival that it can fairly be regarded today as the lead-
ing philosophical justification of the institution of criminal punish-
ment.2 The very existence of the symposium in which this paper is
appearing testifies to the retributive theory's ascendancy. Yet I can-
not help thinking that we might all be better off had retributivism
never emerged from the oblivion to which it so recently seemed
' Professor of Law, University of California, Los Angeles. B.A., Columbia Uni-
versity, 1969; J.D., UCLA, 1980; Ph.D., UCLA, 1982. I am grateful to members of the
Law and Philosophy Discussion Group who read and critiqued an earlier draft of this
article. With apologies to Jeffrie Murphy, author of Three Mistakes About Retributiv-
ism, ANALYSIS, Apr. 1971.
1. Fifty years ago, a defender of retributivism acknowledged the general belief
that the retributive view is the only moral theory except perhaps psychological hedon-
ism which has been definitely destroyed by criticism. Mabbott, Punishment, 48 MIND
152, 152 (1939). A decade later Justice Black, writing for the Court, declared retribu-
tion no longer the dominant objective of the criminal law. Williams v. New York,
337 U.S. 241, 248 (1949). In 1966, a Manual of Correctional Standards published by
the American Correctional Association flatly announced: 'Punishment as retribution
belongs to a penal philosophy that is archaic and discredited by history.' Carlson, The
Future of Prisons, TRIAL, Mar. 1976, at 27, 29 (quoting the Manual of Correctional
Standards). The first edition of a well-known criminal law text summed up the view as
of the early 1970s: retribution was the oldest theory of punishment, and the one which
is least accepted today by theorists. W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMI-
NAL LAW 24 (1972) (emphasis added).
2. [R]etribution is suddenly being seen by thinkers of all political persuasions as
perhaps the strongest ground, after all, upon which to base a system of punishment.
Gardner, The Renaissance of Retribution-An Examination of Doing Justice, 1976 Wis.
L. REV. 781, 784 (footnote omitted). Tellingly, the second edition of the LaFave and
Scott criminal law hornbook deletes the italicized language from the passage quoted in
the previous footnote. W. LAFAVE & A. SCOTT, CRIMINAL LAW 25 (2d ed. 1986); see
also R. SATTER, DOING JUSTICE: A TRIAL JUDGE AT WORK 170-71 (1990); J. WILSON
& R. HERRNSTEIN, CRIME AND HUMAN NATURE 496-97 (1985); Sedgwick, Reason,
Anger, and Retribution, in IssuEs IN CRIMINAL JUSTICE 41, 41 (F. Baumann & K.
Jensen eds. 1989).
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Three Mistakes of Retributivism
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