What of the other charges against retributivism? Is it, as is so often said, inhumane? This charge, if correct, would count as a moral objection against a Retributive theory of penalty-fixing. . . . In the area of this problem it seems to me that Retributive theories stand up very well to comparison with purely Deterrent or Reformatory theories. If we penalize the criminal according to what he has done, we at least treat him like a man, like a responsible moral agent. If we fix the penalty on a Deterrent principle (i.e. What penalty given to this criminal, or class of criminal, will effectively deter others from imitating his crime?) we are using him as a mere means to somebody else's end, and surely Kant was right when he objected to that! And why stop at the minimum, why not be on the safe side and penalize him in some pretty spectacular way—wouldn't that be more likely to deter others? Let him be whipped to death, publicly of course, for a parking offence; that would certainly deter me from parking on the spot reserved for the Vice-Chancellor! And of course a deterrent will deter as long as the person on whom the pain is inflicted is believed to be guilty by those we wish to deter. It really wouldn't matter, if deterrence is our aim in fixing penalties, whether he was in fact guilty or not; as long as we kept his innocence a secret we could make a very effective example of him. This conclusion has been acted on by more than one government in our own times.
If, on the other hand, our aim in fixing penalties is the reform of the criminal—his cure, some might say—then the logical pattern of penalties will be for each criminal to be given reformatory treatment until he is sufficiently changed for the experts to certify him as reformed. On this theory, every sentence ought to be indeterminate—'To be detained at the Psychologist's pleasure', perhaps—for there is no longer any basis for the principle of a definite limit to punishment. "You stole a loaf of bread? Well, we'll have to reform you, even if it takes the rest of your life." From the moment he is found guilty the criminal loses his rights as a human being quite as definitely as if he had been declared insane. This is not a form of humanitarianism I care for. Nor does it become any more humane if we drop the word 'punishment'—it is still just as compulsory. C. S. Lewis wrote a sentence on this point that is worth quoting, even if only as a masterly piece of propaganda: "To be taken without consent from my home and friends, to lose my liberty, to undergo all those assaults on my personality which modern psychotherapy knows how to deliver, to be remade after some pattern of 'normality' hatched in a Viennese laboratory to which I never professed allegiance, to know that this process will never end until either my captors have succeeded or I have grown wise enough to cheat them with apparent success—who cares whether this is called punishment or not." . . . And, since prevention is better than cure, why wait until he commits a crime? On the Reformatory theory of penalty-fixing, it is the tendency to commit crimes that we want to eliminate, so if a man has the tendency let him be penalized before the damage is done. Let him be penalized for what he is, not for what he does, and let him be made over into what the authorities (or their experts) want him to be.
(K. G. Armstrong, "The Retributivist Hits Back," Mind, n.s., 70 [October 1961]: 471-90, at 484-5 [italics in original; ellipses added])
Keith Burgess-Jackson, J.D., Ph.D. 