Oil and Water: Why Retribution and Repentance Do Not Mix

Abstract

Oil and Water: Why Retribution and Repentance Do Not Mix examines the question of how to best communicate to criminal offenders that their behavior violates social norms, thereby re-integrating the offender into society, an objective that Professor Herbert Morris regards as the essence of legitimate retribution (which he contrasts to illegitimate therapeutic intervention). Responding to Professor Herbert Morris’s theory of retribution, Colb argues that punishment as an enterprise may in fact undermine the process of self-analysis and reform that it is intended to inspire. To elaborate this argument, Colb draws on a variety of sources. First, she observes that at an intuitive level, it appears that children respond to punishment with defiance and resentment, rather than by integrating as their own the values conveyed by the punitive parent. Punishment thus operates as an adversarial event, encouraging the other side to dig in its heels. Second, she analyzes an interview with Leroy Hendricks, a convicted child molester (and unsuccessful litigant in the U.S. Supreme Court) who was civilly incarcerated as a “sexually violent predator” after serving his prison time. In the interview, Hendricks appears to have regarded the government (and its anti-child-molestation values) as the enemy opponent in criminal proceedings, while for the first time considering the injustice of child molestation only after he was treated as a patient in a therapeutic environment. Ironically perhaps, Colb notes, the therapeutic approach offers an attractive opportunity for an offender to exercise his autonomy in a way that the retributive approach may not. Finally, Colb discusses the psychological literature about intrinsic motivation to suggest that punishing an individual for his behavior may paradoxically (through “overjustification”) serve to persuade the individual of his own interest in and commitment to that behavior, much in the way that rewarding children for drawing pictures appears to reduce their sense of themselves as being interested in drawing. Ultimately, Colb suggests, human nature may make therapeutic intervention a more effective means of respectfully and persuasively conveying society’s values to an offender than the theoretically-autonomy-regarding retributive approach.