„Philosophy” wrote Karl Marx, „stands in the same relation to the study of actual world as masturbation stands to sexual love”.
This passage came to my mind as I read Steiker’s rich essay, since she – like Marx – reminds us that those of us who do academic writing can often deceive ourselves about the degree to which this writing connects in any useful way to the actual operations of our dominant social institutions and might even unintentionally provide those institutions with covering rationalizations for unspeakable practices. There is no doubt, as Steiker points out, that in our society retributive language is now often used merely as a cover for the advocacy of harsh and even cruel treatment of criminals. Indeed, it is not uncommon to hear people express indifference to such barbaric prison conditions as gang rape by describing this deplorable situation as criminals getting no more than they deserve.
Anyone who fully understands classical philosophical retributivism will, of course, realize that such claims are a perversion of legitimate retributive doctrine. No civilized retributivist (Kant, for example) would ever claim that criminals deserve to endure repeated forced sodomy and would indeed vigorously protest such prison conditions by condemning them as unjust because far in excess of what any criminal deserves. Kantian retributive doctrine is built on respecting the dignity of responsible autonomous human agents, and such respect should protect them from all cruel and unusual treatment. It should also protect them from being severely punished – or indeed punished at all – for actions that should never have been criminalized in the first place or at most treated as less serious offenses. So the environment of radical overcriminalization and often absurdly excessive punishments – the environment in which we in America live – would be condemned by any genuine retributivist (I say „often absurdly excessive punishments” rather than „always absurdly” because it strikes me that some criminals – some white collar criminals, for example – tend to be punished with excessive leniency.).
Jeffrie G. Murphy
(Response to Neu, Zipursky and Steiker in Punishment and The Moral Emotions: Essays in Law, Morality, and Religion, Oxford University Press, 2012, la pp. 225-6)