Can Retributivism and Risk Assessment Be Reconciled?

Abstract

In this paper we explore whether or not the use of risk assessment tools in criminal sentencing can be made compatible with a retributivist justification of punishment. While there has been considerable discussion of the accuracy and fairness of these tools, such discussion assumes that one’s recidivism risk is relevant to the severity of punishment that one should receive. But this assumption only holds on certain accounts of punishment, and seems to conflict with retributivist justifications of punishment. Drawing on the broader desert literature, we explain the source of this conflict, and suggest that a retributivist approach on which the severity of punishment partly depends on one’s character in addition to their acts offers some hope of reconciling retributivism with the use of risk assessment tools in considerations of sentencing reduction in particular. Ultimately, however, even this limited attempt at reconciliation fails, so long as risk assessment tools fail to distinguish between risk that one is responsible for, and risk that one is not responsible for.

Keywords:

• retributivism
• punishment
• risk assessment
• recidivism
• desert

Notes

Thanks to the participants of the Workshop on the Ethics of Criminal Justice AI run by the University of Florida Philosophy Department for reading and commenting on earlier versions of this draft. Thanks especially to Duncan Purvis, Jeremy Davis, Renee Bolinger, Luke Hunt, and Clinton Castro.

[Disclosure Statement: No potential conflict of interest was reported by the author(s).]

1 Angwin and Larson, “Machine Bias.”

2 See Eubanks, Automating Inequality, for critical discussions of several algorithms used across the US including one for health and welfare benefits in Indiana; one for the distribution of homelessness resources in Los Angeles, California; and one for a child abuse hotline in Pittsburgh, Pennsylvania.

3 Andrews, Bonta, and Wormith, “The Recent Past and Near Future of Risk and/or Need Assessment,” and Brennan, Dieterich, and Ehret, “Evaluating the Predictive Validity of the COMPAS Risk and Needs Assessment System.”

4 Interestingly, while Andrews, Bonta, and Wormith, in “The Recent Past and Near Future of Risk and/or Need Assessment,” do recommend the use—and development—of fourth generation (4G) tools, they concluded that, “it is not apparent that the predictive criterion validity of the best constructed of 3G and 4G assessments of risk and or need exceeds that of the best constructed 2G assessments of risk,” 23.

5 Andrews, Bonta, and Wormith, “The Recent Past and Near Future of Risk and/or Need Assessment.”

6 Ibid., 7.

7 Ibid., 8.

8 Brennan, Dieterich, and Ehret, “Evaluating the Predictive Validity of the Compas Risk and Needs Assessment System,” 2.

9 Ibid., 3.

10 Angwin and Larson, “Machine Bias.” See also Friedman and Nissenbaum, “Bias in Computing Systems,” for a discussion of various kinds of computational bias.

11 See, e.g. Collins, “Punishing Risk,” Murphy, “Last Words on Retribution,” Duff, “Dangerousness and Citizenship,” and especially Duff, “Penal Communications.”

12 See, e.g. Feinberg, “Justice and Personal Desert.” Feldman, “Desert,” is an exception here, and argues that there are cases when desert is forward-looking. The examples from which he argues, however, are not in the context of criminal punishment.

13 See, e.g. Pojman, “Merit;” Olsaretti, Liberty, Desert and the Market; and Feinberg, “Equal Punishment for Failed Attempts.” Feldman, “Desert,” and Mulligan, Justice and the Meritocratic State (at least in the context of distributive justice) are exceptions. Things which are deserved as compensation because of harms have been inflicted to you are, obviously, exceptions as well. As a result, desert theorists typically recognize a distinct notion of compensatory desert.

14 For the sake of simplicity, we ignore the distinction between moral and legal retributivism, which concerns whether the desert basis for punishment is lawbreaking or wrongdoing. See, e.g. Mabbott, “Punishment,” for a defense of legal retributivism.

15 Dagan and Roberts, “Retributivism, Penal Censure, and Life Imprisonment Without Parole.”

16 Ibid., 5, and also Murphy, “Last Words on Retribution.”

17 Dagan and Roberts, “Retributivism, Penal Censure, and Life Imprisonment Without Parole,” 10.

18 Duff, “The Intrusion of Mercy.”

19 Ibid., 376.

20 Ibid., 367.

21 See, e.g. Mackie, “Morality and the Retributive Emotions,” and Berman, “Punishment and Justification.”

22 Shafer-Landau, “Retributivism and Desert,” and Kershnar, “A Defense of Retributivism,” attribute this thesis to retributivists.

23 Duff, “Penal Communications.”

24 Ibid., 25. See also Murphy, “Last Words on Retribution.”

25 See Pojman, “Merit;” Kershnar, “A Defense of Retributivism;” and Ross, The Right and the Good, 138.

26 Duff, “The Intrusion of Mercy.”

27 Ibid., 374.

28 Murphy, “Legal Moralism and Liberalism.”

29 Duff, “Dangerousness and Citizenship.”

30 Ibid., 141.

31 Ibid., 159.

32 Ibid., 155.

33 Ibid.

34 Ibid., 156.

35 Feinberg, “Equal Punishment for Failed Attempts,” 132. Shafer-Landau, “Retributivism and Desert,” quotes this passage from Feinberg in support of his argument that there are insurmountable epistemic barriers to determining the punishment that one deserves. We (obviously) ignore this difficulty for the retributivist in this paper.

36 See, e.g. Wolf, “Sanity and the Metaphysics of Responsibility,” Frankfurt, “Freedom of the Will and the Concept of a Person,” and Watson, “Free Agency.”

37 Duff, “The Intrusion of Mercy,” 376–⁠7.

38 We have in mind theories of autonomy that propose that one develops into an autonomous moral agent—i.e. one that can be held morally responsible—only as a product of one’s wider social and developmental history. Relational theories of autonomy are the relevant sub-category of the literature, and a useful introduction to the core commitments of relational theorists is found in the introduction of Mackenzie and Stoljar, Relational Autonomy. Similar ideas are proposed by feminist philosophers elsewhere, for instance Code, “Second Persons,” who develops the idea of “second persons” introduced in Baier, “Cartesian Persons,” about the nature of the development of personhood.

39 See, e.g. Wolf, “Sanity and the Metaphysics of Responsibility.”

40 Shelby, “Justice, Deviance, and the Dark Ghetto.” Here, we might appeal to Olsaretti’s notion of a forced choice in Liberty, Desert and the Market, 139–⁠40, where a choice is forced if one has no acceptable alternative to the course they choose.

41 To be clear, we are not raising the possibility that no one is at all responsible for their character. This position is sometimes attributed to Rawls, Justice as Fairness, §20, to explain his rejection of desert in a theory of justice. It is enough that in some cases (which again, might not be uncommon), one’s responsibility for their character is seriously limited.

42 Shelby, “Justice, Deviance, and the Dark Ghetto,” 154. Thanks to Renee Bolinger for emphasizing this part of Shelby’s view.

43 Ibid., 160.

44 Mulligan, Justice and the Meritocratic State.

Additional information

Notes on contributors

Toby Napoletano

Toby Napoletano is Philosophy Department, University of California, Merced; 5200 North Lake Rd. Merced, CA 95343, USA.

Hanna Kiri Gunn

Hanna Kiri Gunn is Philosophy Department, University of California, Merced; 5200 North Lake Rd. Merced, CA 95343, USA. Email: [email protected]