The Problems of Empirically-Informed Arguments for and against Retributivism

In recent years, a number of philosophers and social scientists have argued in favor of or against retributive theories of criminal punishment based on empirical findings about folk punitive judgment and decision-making. In this paper, we will argue that these arguments do not succeed. We will raise two objections. First, there are serious gaps between the empirical findings these authors cite and the descriptive premises these findings are meant to support. Second, in many cases, the existing research does not support the specific empirical claims that feature in these arguments. Specifically, a large part of the existing psychological research and some philosophers claim that people are mainly driven by retributive motives. We will show that a large portion of the empirical research is not designed in a way to specifically test this claim, and to the extent that some studies are able to investigate this claim, we show that the evidence suggests that people are motivated by a variety of concerns, including consequentialist motives. We discuss possible responses and implications for the philosophy of criminal punishment, and provide suggestions for improved study designs.