Retribution

The term “retribution” means, in the simplest sense, revenge. Retribution in the legal world refers to the act of setting a punishment for someone that “fits the crime.” In other words, an eye for an eye, or “do unto others as you would have done unto you.” For example, retribution may be a judge’s ordering either a life sentence or the death penalty for someone after convicting him of murdering another person – a life for a life. To explore this concept, consider the following retribution definition.

Definition of Retribution

Noun

  1. The punishment that someone receives as revenge for his committing of a criminal act.

Origin

1350–1400       Middle English (retribucioun)

Retributive Justice

When it comes to retributive justice, there are three main principles that make up the concept:

  1. That those who commit crimes should suffer a punishment that is equal in severity.
  2. That it is good, in a moral sense, if a person receives the punishment he deserves.
  3. That it is bad, in a moral sense, to punish an innocent person or, conversely, inflict a more serious punishment on someone than that which would fit the crime.

These principals have their flaws and, as such, people have hotly debated them time and time again. Interestingly, the definition of retributive justice has changed over time. Initially, the idea was that the severity of a person’s punishment should be directly proportionate to the crime he committed. So, for example, retribution for a person who stole money would be to pay the money back, whereas retribution for a person who committed murder would be to either receive the death penalty of life in prison. Either option takes a life for a life.

However, over time, the definition of retributive justice came to mean that the amount of punishment a person suffers must be proportionate to the unfair advantage that person enjoyed in breaking the law in the first place. Further, those opposed to retributive justice have come up with alternatives to the idea, including committing offenders to a mental hospital, as opposed to prison, when their psychiatric evaluations support such an alternative. Other alternatives include restorative justice and transformative justice.

Restorative Justice

Restorative justice is the type of situation wherein a mediation is set up between the defendant and the victim for the purpose of achieving a resolution that will satisfy everyone involved. Resolutions can include restitution that the offender pays to the victim in an effort to make the victim whole again, or establishing a plan going forward that will prevent the defendant from engaging in similar behavior in the future.

For the defendant, a restorative justice program is meant to help him take responsibility for what he has done, to understand how his actions have affected others, and to have a chance to redeem himself. It is also a method for discouraging the defendant from causing further trouble in the future. A restorative justice program also allows the victim to take an active part in the process.

Transformative Justice

Transformative justice is a strategy like its name would suggest: it is a way of treating a crime as an educational and transformational opportunity for the offender. Transformative justice focuses more on healing than do other forms of retribution. Transformative justice can apply to many areas, including family law, corporate law, and bankruptcy law. The issue with transformative justice is not so much about whether the offender may do something similar in the future, but whether the community is willing to support both the offender and the victim.

Insofar as “support” is concerned, this can translate to mean that the community is all in favor of sending the offender to jail for his crime. However, the purpose for the imprisonment here is less about punishment and more about isolating the offender so that he can get the help he needs and be “transformed” into a more productive member of society.

Restitution and Economic Retribution

Restitution and economic retribution are two different things. Restitution is the act of compensating someone for an injury or a loss as the result of another person’s actions. For instance, if someone steals $7,000 from his employer, the court may order a payment of $7,000 in restitution as a sort of apology and a way to make things right. This is why restitution is also referred to as “restorative justice,” because it “restores” a person back to his position before the incident occurred, or at least as close as possible.

Economic retribution, on the other hand, is different. Retribution for this same crime would, more than likely, result in a jail sentence for the perpetrator. However, without a restitution award, a jail sentence does not fully the crime, because the employer is still out that $7,000. Further, if the defendant is in jail, then he has no way to earn that money to pay his employer back.

Therefore, a court order of $7,000 in restitution coupled with economic retribution is a punishment that more closely fits the crime that was committed. In this case, the defendant’s punishment, both with a jail sentence and being forced to pay back every dollar of the money he stole. His employer is made whole again with a $7,000 restitution to replace the money he had lost as a result of the defendant’s actions.

Retribution Example Involving the Death Penalty

An example of retribution, in the case of Kennedy v. Louisiana, was decided by the U.S. Supreme Court in June 2008. Here, a Louisiana trial court found Patrick Kennedy guilty of raping his eight-year-old stepdaughter. Under Louisiana law, the death penalty is an available punishment to those convicted of raping a child under the age of 12 years old. The prosecution sought this as a punishment for Kennedy, and the jury awarded it.

On appeal, the Louisiana Supreme Court upheld the sentence. Kennedy argued that in another rape case, one concerning an adult female, the Court struck down the death penalty. The Court, on the other hand, held that the vulnerability of children, coupled with the fact that five other states handed down similar sentences, was enough to justify the lower Court’s decision.

Kennedy then filed for a writ of certiorari, and asked the U.S. Supreme Court to make a decision based on the following criteria:

  • That five states do not make up a “national consensus” sufficient to dictate the outcome of his own case
  • That established precedent should apply to all rapes, regardless of the victim’s age.
  • That the law was unfair, and that his Eighth Amendment right was violated, in that he was subjected to cruel and unusual punishment.
  • That the courts were sentencing black child rapists to death more often than they were white child rapists.

In what was perhaps a surprising turn, the Court ruled that, yes, the retribution that Kennedy suffered did not, in fact, fit the crime, and reversed the lower Court. In a 5 – 4 decision, the Court ruled that Kennedy was the victim of “cruel and unusual punishment,” as defined by the Eighth Amendment. He claimed that states do not have the right to impose the death penalty for a crime that did not result, and that was never intended to result, in the victim’s death.

Said the Court in its Decision:

“The Court’s decision is consistent with the justifications offered for the death penalty, retribution and deterrence, see, e.g., Gregg v. Georgia, 428 U. S. 153. Among the factors for determining whether retribution is served, the Court must look to whether the death penalty balances the wrong to the victim in nonhomicide cases. (Citation omitted.) It is not at all evident that the child rape victim’s hurt is lessened when the law permits the perpetrator’s death, given that capital cases require a long-term commitment by those testifying for the prosecution. Society’s desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice.

There are also relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a ‘special risk of wrongful execution’ in some cases. (Citation omitted.) As to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim. (Citation omitted.)

The concern that the Court’s holding will effectively block further development of a consensus favoring the death penalty for child rape overlooks the principle that the Eighth Amendment is defined by ‘the evolving standards of decency that mark the progress of a maturing society,’ (Citation omitted.) Confirmed by the Court’s repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim’s life.”

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Prosecution – The lawyer who argues that a person who has been accused of a crime is guilty of that crime.
  • Writ of Certiorari – An order issued by a higher court demanding a lower court forward all records of a specific case for review.

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