Retributivism for Progressives: A Response to Professor Flanders

In his engaging article Retributivism and Reform, published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too harsh, and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what harsh might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of disproportionate or otherwise unjustified. With this working definition in hand, we measure some current American criminal justice practices using a roughly hewn retributivist yardstick. We conclude that American criminal justice may well be too harsh as measured by retributivist standards. If this is right, then Whitman and others may be wrong to condemn retributivism as a theory of criminal punishment. To the contrary, the resources needed to justify many progressive reforms may lie in embracing retributivism rather than rejecting it. While further work will be necessary to reach any final conclusions, we suggest that retributivism might be particularly useful in addressing overcriminalization, long prison sentences, and brutal prison conditions, each of which a retributivist might well regard as disproportionate or otherwise unjustified and therefore harsh