When to Punish

Patrick Tomlin, Time and RetributionLaw and Phil. (forthcoming, 2014).

It isn’t every day that you come across an article that approaches an old topic from a completely new perspective, but that is exactly what Patrick Tomlin’s Time and Retribution does for retributivism in criminal law. Although there are now many different theories of retributivism out there, it seems fair to say that the bulk of them take desert to be the central core of retributivism, and many theorists (myself included) would say that it is intrinsically good for someone to get what he deserves. As I oversimplified retributivism once, “It is the claim that bad guys deserve punishment.”

On the other hand, with perhaps some exceptions like shaming punishments and the death penalty, the standard thought is that retributivists qua their retributivism have nothing to say about the mode of punishment. Decisions about incarceration, fines, short-but-intense punishments, long-but-light punishments—none of these are questions for retributivists. If retributivists have views, these views come from other parts of their general moral or political framework. At least, that was what I thought before I read Tomlin’s article.

Tomlin clearly demonstrates that retributivists do have views about the mode—specifically the timing—of punishment, and he makes his case by looking at the desert claim from the opposite angle. Retributivism’s intuitive force, he reveals, centrally comes from how bad we think it is when criminals do not get what they deserve. And if we think it is bad for criminals not to get what they deserve, then we ought to think about whether this badness increases with every day of non-punishment.

Tomlin’s paper essentially asks the following question, “Do retributivists qua their retributivism prefer long, light punishments or short, intense ones?” His answer is the latter. Retributivists ought to prefer short intense punishments because these punishments increase the likelihood that individuals will get what they deserve.

To reach this conclusion, Tomlin nicely surveys different approaches a theorist might take to the badness of unfulfilled desert, ranging from the “Brute Time View,” to the “Existing Bad Person View,” to the “In the End View.” That is, Tomlin takes the reader through the various possibilities of why the non-punishment of the deserving is bad, each of which has different implications for when we ought to punish. Not only is the novelty of the argument compelling, but Tomlin’s presentation is exemplary. The sections are meticulously argued and admirably clear. It is criminal law theory at its finest.

Notably, Tomlin is also sensitive to the ceteris paribus nature of his claim. He is not claiming that we ought to hurry investigations or to rush to judgment. He recognizes that there are strong reasons for making sure that the person we are punishing is actually guilty of the offense. And, Tomlin does not commit himself to retributivism. His only goal is to show that to which retributivists are themselves committed.

Those who focus on the practical application of the criminal law may be troubled by Tomlin’s conclusion. After all, it gives us reason to prefer more severe punishments. However, if this is the implication of our views, we ought to face them, even if we do not like where they lead us. (Tomlin notes that concerns about punishing the innocent give us reason to use punishments for which errors can be compensated, rather than giving us reasons to delay the punishment itself. Again, this is a very carefully argued paper.)

In addition, if retributivism’s intuitive force comes from the badness of the non-punishment of the deserving, then our retributivist theories ought to take that into account. I fully expect retributivists to debate the brute time, in the end, and the existing bad person perspectives for years to come. Indeed, while I am largely sympathetic to the “in the end” view—that all that matters is the person gets what he deserves in the end—I can make the case for the brute time view: It is not enough to read Tomlin’s paper in the end. You ought to read it today.

Author’s note: I am the co-Editor in Chief of Law and Philosophy, and I was the editor assigned to the manuscript. Law and Philosophy relies on blind peer review.

Cite as: Kimberly Ferzan, When to Punish, JOTWELL (November 8, 2013) (reviewing Patrick Tomlin, Time and RetributionLaw and Phil. (forthcoming, 2014)), http://crim.jotwell.com/when-to-punish/.