Pristine and Polluted Retributivism

On Tuesday I was lucky to participate in a gathering of criminal law theory nuts at Brooklyn law school to discuss a couple of interesting papers in punishment theory.  At one point in the discussion, the issue arose as to what retributivism might require of the punisher if there was evidence that something terrible had happened to the offender after committing the crime that was somehow responsive to the crime.  Doug Husak offered something like this example: suppose that X rapes Y.  When Z, Y's brother, comes to find out about the rape, he is so enraged that he finds X and keeps him locked in a closet for 3 years (keeping him alive, but in a horrible state).  After the three years, the police come to find out about the rape and arrest X.  Suppose further that the sentence for rape in this circumstance is 3-8 years.  Should the judge consider the fact that X had suffered the horrible ordeal of being closeted for 3 years in deciding how long to punish X?  Would a possible sentence here be no prison time at all? 

Some time back Doug Berman asked a related, but different, question about whether the suicide of Bernard Madoff's son, had it happened before Madoff's sentence, ought to have somehow mitigated or diminished the sentence imposed.  The issues are different because (a) we can be quite sure that X suffered a great deal; whereas (absent some hard evidence), we cannot be sure that Madoff suffered as a result of his son's suicide; and (b) somehow there seems to be a more direct responsive tie between the rape and the closeting than there does in the Madoff situation (admittedly, I am not certain about how to describe the difference).  But the question in both kinds of case is -- for the retributivist, what ought to be the significance of the defendant's suffering (Adam Kolber's work is one kind of answer).

Now comes the sentencing of Ahmed Khalfan Ghailani.  Ghailani was convicted of a count of conspiracy to destroy the U.S. embassies in Kenya and Tanzania, acts which resulted in the deaths of 224 people.  HIs defense lawyer argued at sentencing that Ghailani's punishment should be mitigated to something less than life in prison because he had been tortured by the CIA after his capture.  The judge noted that the issue of Ghailani's treatment was not before him, but he also said this: "Whatever Mr. Ghailani suffered at the hands of the CIA and others in our government, and however unpleasant the conditions of his confinement, the impact on him pales by comparison to the suffering and the horror that he and his confederates caused[.]"

Suppose that it is, in fact, true that Ghailani was tortured by the CIA.  What makes this an interesting variation on the cases above is that, unlike in those cases, here it is actually the state which has inflicted the extra-punitive suffering.  By putting it this way, I'm not suggesting that the torture constitutes part of Ghailani's "punishment."  But that still leaves open the question whether a retributivist could consider the fact that Ghailani was tortured by the state (assuming, again, that this is true) in imposing a punishment less severe than he otherwise would.

Here it may be helpful to divide retributivists into two camps -- pristine and polluted.  The pristine retributivist -- he who likes his theoretical accounts clean, pure as the driven snow -- might say that while Ghailani would be entitled to seek some other civil remedy, the question of his punishment ought to be unaffected.  It would be, for the pristine retributivist, a category mistake to permit the issue of torture to muck up the purity of the core retributivist aim -- to calibrate punishment in proportion to desert for the crime committed.  Retributivism here has a limited domain -- one might even call it a political retributivism, in that it involves solely the narrow issue of what the state "owes" the D in light of his offense.  

By contrast, the polluted retributivist would be open to considering the issue of state torture in the question of mitigation.  Like the pristine retributivist, the polluted retributivist would not deem the torture "punishment."  But that would not stop him from taking stock of the circumstances that attend the punishment of this person, in the light of what had happened to him specifically, pre- and post-offense.  We could call this a moral retributivism, one which amplifies the scope of the state's inquiry when it comes to the justification of retributive punishment.

For what it's worth, and because I generally favor self-consciously, willfully impure legal theories of all kinds (and not just in criminal law), I tend to be more attracted to polluted retribution.  I recognize that such an approach expands the range of considerations that a state may ask after, and that's a little disquieting.  But I think polluted retributivism may be a more accurate description of what real retributivist punishment practices look like, and that is, in my view, to its credit.