The champions of retribution and its critics have combined to give it bad press. Although a retributivist must believe that the imposition of deserved punishment is an intrinsic good, she need not believe that it is the only intrinsic good. She need not join Immanuel Kant in the view that imposing just punishment is a categorical imperative. She need not join Michael Moore in saying that the retributivist punishes only because the offender deserves it. She need not deny the legitimacy of other goals of punishment. She need not join James Fitzjames Stephen in the belief that "it is morally right to hate criminals." She may impose punishment with sadness rather than with what Jeffrie Murphy calls "retributive hatred."
A recently invented mechanical device, the Pulverizer, supplies a test of whether one views retribution to some degree as a virtue independent of its consequences—that is, whether one supports retributivism as a deontological position. This imaginary machine also tests whether one regards retribution, not merely as a limiting principle, but as an affirmative reason for punishing.
The Pulverizer instantly and painlessly dematerializes murderers. To maximize its deterrent effect, its inventors have proposed using it for televised executions at the halftime of the Super Bowl. Or, to be more forthcoming, everyone believes the Pulverizer dematerializes murderers. In reality, it transports them to Candy Mountain where they enjoy better lives than they have ever known. The inventors of the Pulverizer realized that, compared to actual executions, simulated executions would be Pareto efficient.A murderer's pretended execution coupled with his banishment to a lovely mountain in a galaxy far, far away would make at least one person (the murderer) better off and no one worse off.
People who oppose use of the Pulverizer must believe that efficiency and consequences are not everything. They believe that rewards and punishments should be allocated at least partly on the basis of desert.
(Albert W. Alschuler, "The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts About the Next," The University of Chicago Law Review 70 [winter 2003]: 1-22, at 15-6 [italics in original; footnotes omitted])
Note from KBJ: I oppose use of the Pulverizer. You?
Keith Burgess-Jackson, J.D., Ph.D. 