The Non-Moral Basis for Eliminating Retributivism

While increasing numbers of philosophers have argued for eliminating the retributivist elements of criminal justice systems, their arguments often fall short due to internal inconsistency. Some of the best known of these arguments — such as those provided by Derk Pereboom and Gregg Caruso — rely on the claim that there are moral grounds for rejecting retributivism. In defending this claim, these philosophers typically provide arguments seeking to undermine the type of agent responsibility that they believe is needed to justify retributivism. This is usually followed by an assertion that since the excessive suffering caused by retributivist punishment cannot be justified, it is therefore immoral to preserve remnants of it in our criminal justice systems. This paper — which opposes the moral case against retributivism provided by Pereboom and Caruso, and favors non-moral reasons that recommend rejecting a retributivist approach — is divided into three parts. In part one, I discuss why Pereboom and Caruso are correct in thinking that free will skepticism undercuts the moral justification for retributivism. Part two sets out to explain why their moral case against retributivism fails insofar as it runs afoul of the folk intuitions that are called upon to defend Pereboom’s account of free will skepticism. In part three, I provide a non-moral case against the retributivism that is founded on considerations of self-interest and empathy.