Kant’s retributivist theory of punishment dictates that the state has an obligation to punish offenders in a way that matches the crime that the offenders have committed. Kant establishes that the state cannot adopt the principle of utility in punishing offenders, as it would lead to unjust treatment of the offenders. However, Kant is of the idea that murders ought to hand a death penalty by the state following the principle of lex talionis. The reason why Kant proposed the execution of murders is the fact that individuals are agents who are capable of acting morally. Individuals who commit murder do so willingly and thus should get a death penalty to deter would-be criminals. The call by Kant to execute murders creates a point of contention since the state should not execute murderers especially if one focuses on Kant’s concept of criminals as agents capable of morality.
The Kantian retributivist theory fails to appreciate the traditional utilitarianism theories, which calls upon the state to ensure that punishment increases happiness while reducing unhappiness. According to Byrd (1989 pp. 160-161), crime causes unhappiness making punishment justifiable if it is to increase happiness for the public. It is important to note that not all forms of punishment will create happiness to the public especially if they are not going to deter future criminals. Concerning the Kantian retributive theory of punishment, offenders are a means to an end where the state punishes the offenders for reducing crime. Kant thus calls upon the state to punish offenders depending on the intensity of their crimes. Severe crimes should attract severe punishment while less severe crimes are to attract less severe penalties. However, Kant has failed to provide the rationale, which is to guide the legal players on how to determine the right punishment, which matches the crime. As a result, individuals who commit less serious crimes will get severe punishment while individuals with a severe crime get away with their crimes.
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Punishments according to the Kantian retributive theory are supposed to help people refrain from committing crimes. this proposition is entrenched in the concept of ‘external incentive’ which is seen as propagating the idea that individuals who refrain from committing crimes are likely to lead happier lives (Scheid, 1983 pp. 265). However, it is not obvious that individuals will refrain from committing crimes just because the state is punishing its offenders. On the contrary, individuals are more likely to continue committing crimes since they see it as a means to a particular end. Of importance is the fact that the state may be lax in its efforts to reduce crimes. The existing social controls and deterrence measures may not be adequate or retribution enough. The proposition is echoed by Norie (2012 pp. 41) who assert that the legal system is only concerned with the ‘duties of justice’ which coerce individuals to conform to the state provisions and regulations. In turn, individuals may react in the opposite manner since such a legal system fails to consider the internal drives to commit a crime.
Coercion is a significant concept of the Kantian retributive theory and which is contradictory. According to Kant, coercion is a vital tool that forces people to conform to social norms. Following this notion, the legal system is supposed to use treats to coerce people into doing what is right (Hoffman, 2015 pp. 15). While this call points out that coercion may be the ultimate solution, it does not follow the principle of individuals as agents with a moral choice. Instead, Kant views people as individuals who require threats if they are to become moral beings. However, individuals tend to focus on the benefits or consequences of an action before deciding to undertake it. Threats and coercion o do not work in all situations since individuals have the ability to chart their course of action.
References
Byrd, B. S. (1989). Kant's theory of punishment: Deterrence in Its threat, retribution in its execution. Law and Philosophy , 8(2), 151-200.
Hoffman, R. (2015). A new reading of Kant’s theory of punishment (Diss.). University of Pennsylvania, Philadelphia, PA, USA.
Norie, A. W. (2012). Law, ideology and punishment: Retrieval and critique of the liberal ideal of criminal justice. Boston: Kluwer Academic Publishers.
Scheid, D. E. (1983). Kant's Retributivism. Ethics, 93(2), 262-282.
