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69 J. Crim. L. & Criminology 291 (1978)
Death Penalty, Retribution and Penal Policy, The

handle is hein.journals/jclc69 and id is 297 raw text is: 9901-4169/78/6903-0291S02.00/0 Tiui JOURNAL OF CRIMINAL LAWv & CRIMINOL.OGY Vol. 69, No. 3 Copyright © 1978 by Northwestern University School of Law Pin t d in U.S.A. THE DEATH PENALTY, RETRIBUTION AND PENAL POLICY JACK P. GIBBS* No special training in psychology is required to infer that Supreme Court Justices have agonized a great deal over the death penalty in recent years. They are badly split on the issue, and it would be difficult to exaggerate the importance of the ra- tionale that some of the Justices have offered for not rejecting capital punishment as unconstitu- tional.1 The rationale is not a belief in the deterrent efficacy of capital punishment. To the contrary, there is appreciable consensus among the Justices that evidence of deterrence is far too inconclusive to justify the death penalty. Yet, some of the Justices are willing to entertain a distinctly differ- ent argument-that retribution is a sufficient jus- tification for legal executions-and the retributive doctrine is currently receiving support from nu- merous prominent scholars.2 RESURRECTION WITHOUT A CORPSE Although the seeming resurrection of the retri- butive doctrine at the highest judicial level may appear to be the ultimate manifestation of the national clamor for law and order, that interpre- tation is a gross oversimplification. For one thing, a resurrection requires a corpse, and the retributive doctrine was never truly buried in the cemetery of ideas. To be sure, a host of critics have condemned retribution as barbaric, thereby creating the impression that the doctrine is an anachronism.3 That is all the more the case because prominent critics of the retributive doctrine have been truly educated individuals. Hence, the tacit suggestion is that the doctrine was invented and is now per- petuated by rednecks. Yet two great names in the history of philosophy, Hegel and Kant, were uncompromising retributivists.4 For that matter, * Professor of Sociology, Vanderbilt University. 'See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976) (plu- rality and concurring opinions); Furman v. Georgia, 408 U.S. 238 (1972). 2 See, e.g., G. NEWMAN, THE PUNISHMENT RESPONSE (1978); E. VAN DEN HAAG, PUNISHING CRIMINALS: CON- CERNING A VERY OLD AND PAINFUL QUESTION (1975); A. VON HIRSCH, DOING JUSTICE (1976). 3 Seegenerally K. MENNINGER, THE CRIME OF PUNISH- MENT 190 (1968). 4See G. HEGEL, PHILOSOPHY OF RIGHT (T. Knox trans. 1952) and I. KAmr, THE PHILOSOPHY OF LAW (W. Hastie trans. 1887). philosophers did not succumb to the anti-punitive orientation that swept the social and behavioral. sciences between 1938 and 1968,5 and thus one finds the staunchest defenders of the retributive doctrine among contemporary philosophers.6 Needless to say, whatever their moral or intellectual defects may be, those philosophers are hardly red- necks. Returning to the main argument, if Supreme Court Justices have come to a reconsideration of retribution, the impetus was not their sensitivity to public opinion but, rather, their doubts about deterrence and recognition that the idea of reha- bilitating criminals has fallen into disrepute. To be sure, even now there is no truly conclusive evidence that rehabilitation programs in criminal correc- tions have failed to check recidivism, but those who demand conclusive evidence before reshaping penal policy may well wait forever. In any case, those who have marshalled the evidence-such as Kassebaum and Lipton-are not all retributivists7 Perhaps the rehabilitation programs were doomed to fail because of limited financial support and the custodial context in which many of those programs were implemented. Be that as it may, the Supreme Court cannot direct revenues into reha- bilitation programs or eliminate prisons with a view to furthering rehabilitative programs. ALTERNATIVES TO RETRIBUTION As previously suggested, the retributive doctrine is now being revitalized not only because its chief contender-rehabilitation-no longer commands a strong following, but also because of the uncon- vincing evidence generated by deterrence research. 5 Andenaes, General Prevention Revisited: Research and Pol- icy Implications, 66J. CRIM. L. & C. 338 (1975); Johnston, Punishment of Hwnan Behavior, 27 AM. PSYCH. 1033 (1972); Singer, Psychological Studies of Punishment, 58 CALIF. L. REV. 405 (1970). 6 See H. Fingarette, Punishment and Suffering, Presi- dential Address, Fifty-first Annual Pacific Meeting of the American Philosophical Association (March, 1977). 7G. KASSEBAUM, D. WARD, & D. WILNER, PRISON TREATMENr AND PAROLE SURVIVAL: AN EMPIRICAL ASSESSMENI (1971); D. LIPTON, R. MARTrINSON, & J. WILKS, THE EFFEarIVENESS OF CORRECTIONAL TREArMEN : A SURVEY OF TREATMENT EVALUATION SrUDIES (1975).

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