Retributivist theories of punishment are in tension with due process. Some retributivists adopt a simple view that punishment of the deserving is normatively justified. However, this Simple Retributivism licenses unjust and illegitimate rules of criminal procedure. A more refined version of retributivism, on which a person’s punishment is justified only if she deserves to be punished for the offense with which she is charged and her desert bases cause her to be liable to punishment, avoids the troubling implications of Simple Retributivism. Refined Retributivism also entails specific principles for implementing criminal law—that is, a distinctively Retributivist Criminal Procedure. On this Retributivist Criminal Procedure, procedural mechanisms must establish that there are good reasons to believe that an offender deserves to be punished for an offense, and these reasons must cause the offender’s liability to punishment.
Yet Refined Retributivism is also difficult to reconcile with due process. Although Retributivist Criminal Procedure has some salutary implications, it also calls for abolishing core aspects of the U.S. system of criminal justice and features that are essential to any legitimate criminal justice system. Thus, retributivism (whether Simple or Refined) does not provide the basis for a just criminal procedure.
Crime Stories: Posnerian Pragmatism, Rawlsian Pure Procedural Justice, and the Fictional Problem
