The victim and the justification of punishment

Abstract

Introduction The rise of the victims' rights movement is a signal that the justice system has missed something. In 1980 Wilham Clifford, Director of the Australian Institute of Criminology, stated: The victims of crime are, indeed, the forgotten tribe of our criminal justice system. It is quite remarkable that, for so long, the interests of victims (except as witnesses for the prosecution) have been given so little public attention.(1) More recently, though, the justice system has taken steps towards giving the victim a role. Victims may submit impact statements in some cases. Alternative sentences may incorporate restitution. Spurred, apparently, by the success of these practical initiatives, some contemporary philosophers have argued for reforms to the social institution of punishment which take account of victims' concerns.(2) What is striking about their arguments, however, is that they are advanced in the absence of adequate theoretical support. On the theoretical side, attempts to justify the social institution focus either on the wrongdoer or on the community as a whole. None of them deals adequately with the role of the victim. In this paper I argue that a justification for punishment should take account of victims' concerns as well as those of the wrongdoer and community.(3) In other words, the justification should deal with the social institution's plurality of aims. Specifically, I argue that one good reason for taking victims' concerns into account is rooted in the moral sentiments which arise in both the victim and the community in reaction to a crime.(4) In the course of that argument I sketch in broad strokes the type of justification I have in mind. I then illustrate the explanatory value of my approach to punishment by using it to evaluate certain reforms in sentencing advocated by proponents of restorative justice. The Inadequacy of Traditional Theories Let us begin by considering traditional theoretical approaches to justifying punishment with an eye to determining why there is little or no mention of victims' concerns. Retributive theories claim that punishment is justified because, and only because, the wrongdoer deserves it for having done wrong. These theories look back to the wrong action in order to explain why the person who performed it deserves punishment. They focus on the abstract need to balance the scales of justice by giving the wrongdoer what she deserves while, at the same time, respecting her dignity. They do not explain adequately the benefit of punishment for society, and they are silent on the relationship of the victim to the practice of punishment.(5) Consequentialist theories justify punishment on the basis of social benefit. They are classified as forwardlooking because they take the future benefit of society to be a necessary condition for punishment. Criticisms of consequentialist approaches center on worries that social utility will take precedence over wrongdoers' rights or even lead to the punishment of innocents. Another important criticism--one seldom mentioned by philosophers but increasingly discussed in social debate--is that the victim's concerns may be overridden by those of society. Mixed theories, of which H.L.A. Hart's is perhaps the best example, rightly attempt to incorporate a plurality of reasons for punishment.(6) According to Hart, the inadequacies of theories which attempt to justify punishment based on a single principle can be met by one that incorporates partly discrepant principles by separating the distinct questions involved in justifying the social institution. The key to Hart's proposal is the distinction he makes between retribution as a general justifying aim and retribution in distribution. Whereas taking retribution as a justifying aim would conflict with the aim of social benefit, retribution in distribution merely places a restriction on the unqualified pursuit of that aim. …

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