Adam J. Kolber (Brooklyn Law School) has posted Punishment and Moral Risk on SSRN. Here is the abstract:
For every interesting moral question, we should have at least some doubt that we know the right answer. Legal theorists ignore this moral uncertainty at their peril. To take one important example, for retributivists to inflict punishment, they must believe not only that a defendant is guilty but that all other prerequisites for deserved punishment are satisfied as well. They must believe offenders have free will, even though philosophers have debated the topic for centuries. They must believe offenders can be punished proportionally, even though no one has convincingly determined how to assess proportionality. And they must believe it appropriate to make offenders suffer as a response to the suffering they caused, even though some find this view barbaric.
These retributivist commitments, along with several others, are clearly controversial. One would be hard-pressed to believe a single one—let alone the conjunction—with the 95% or 99% confidence frequently attributed to the beyond-a-reasonable doubt standard used to assess guilt. Hence, reasonable retributivists suffer from too much uncertainty to justify punishment under the standard of proof they would likely set for themselves. Consequentialists, by contrast, are less vulnerable to this challenge. They can accept greater risk when punishing because they face countervailing risk by failing to adequately punish.
More generally, I argue that we hold not just beliefs but “portfolios of beliefs” that can exacerbate or hedge moral risks. These portfolios sometimes do a better job of explaining our moral and legal views than existing theories, and I show how “epistemic hybrid” theories that combine retributivism and consequentialism can avoid the inconsistencies facing current hybrid theories. We are not necessarily retributivists or consequentialists but, say, 60%-retributivists or 90%-consequentialists. Portfolios of beliefs can also help us understand other areas of law and morality, such as the perplexities of threshold deontology and the puzzles of tort law. Indeed, portfolios of beliefs may not only explain our beliefs but also offer normatively appealing alternatives to our existing theories that fail to take moral risk into account.
Kolber's analysis assumes that the relevant retributivist beliefs are independent of one another, but it is not clear that this is the case. At an abstract level, the various retributivist beliefs may be part of a "web of belief" to use Quine's phrase--and hence mutually dependent in almost all cases to at least some degree. Ron Allen has made a similar point in the context of evidence law and the burdens of persuasion. More concretely, retributivist intuitions about free will and about the moral standards for adequate proportionality may rest on overlapping premises.
Kolber's argument that consequentialism does not share the "problem" he identifies may be based on a double standard. Thus, consequentialist theories of punishment could be thought to depend on: 1) the truth of consequentialism as a moral theory despite the fact a substantial share (perhaps a majority) of moral philosophers reject it, 2) the belief that deterrence, incapacitation, or rehabilitation is actually efficacious, when there is substantial evidence that each of these functions fails in practice, and 3) the belief that actual punishments can be calibrated to achieve the benefits of these consequentialist justifications for punishment.
In addition, Kolber fails to consider the moral risk of failing to punish from a retributivist perspective. Many retributivists believe that there is a moral requirement to impose deserved punishment and that failure to punish is a moral wrong. One can easily invert Kolber's argument and show that retributivists cannot justify a failure to punish. I am not suggesting that the inverted argument is correct; rather, the point is that the structure of the argument is suspect.
Finally, I am dubious that retributivists themselves believe that punishments must be precisely proportionate. The relevant standard for a complex legal system is much more likely to be "rough proportionality."