by Noam Benavi
The most classical justifications for the incarceration of criminals, including rehabilitation, incapacitation, and deterrence, focus on the future to determine what actions to take in the present. Retributive theory, however, looks to the past. The retributive theory of punishment inhabits a unique niche in the study of criminology. It is by far the oldest justification, dating back to the sentiments expressed in the code of Hammurabi, one of the earliest written codes of law. Consequently, it has influenced every system of law that followed, from medieval feudalism to British common law, and later, American statutory criminal law. In America’s early years, when the influence of British common law was strongest, retribution was the clear punitive aim, as demonstrated by the popularity of practices like public executions and duels.
But as America transformed from an agrarian isolationist nation to a densely populated global superpower, Americans’ concerns about crime underwent a distinct shift. Beginning in the 1960s, amidst the awakening of the anti-war counterculture, legislators wrote sentencing laws designed to improve the moral composition of offenders rather than punish them for their moral failures. Here, a distinct shift began toward rehabilitative punishment rather than retributive punishment. During Presidents Reagan and Clinton’s “tough on crime” administrations, federal policy shifted back to retribution but also focused on deterrence and incapacitation. As violent crime rates peaked in the early 1990s, more and more Americans began to fear for their safety, which rekindled their retributive impulses. In 1980, only 32 percent of Americans thought punishment was the primary purpose of prison, but by 1993 this number had increased to 61 percent. Thus, sentencing laws during this time aimed to deter would-be criminals from offending and to deter incarcerated offenders from recidivating upon their
Today, America is at a punitive impasse. While calls for prison reform and lighter sentences have never been louder, they are matched by those advocating for lengthy mandatory minimum sentences. There is currently no single overarching punitive paradigm in America, which raises an important question: What roles should the principles of each punitive theory play in America’s substantive sentencing laws? Considering both the founding principles of American punishment and the current state of American punitive attitudes, I argue that the retributive aim is best applicable to cases involving extreme violence and least applicable to so-called "victimless crimes." Judge Rosemarie Aquilina’s opinion in her sentencing of Larry Nassar and Judge Max Tobias' opinion in his sentencing of Bernard Noble are both strong examples that illuminate the characteristics of, and the key differences between, violent and “victimless” crimes.
It is difficult, if not impossible, to objectively determine how “evil” a crime is. Some attempts must still be made, however, because this level of “evil” determines whether a retributive sentencing aim is the correct response to the crime at hand. Professor Benjamin Sendor proposes the “dual wrongfulness” theory of crime. Sendor posits that two components factor into the degree of the wrongfulness of a crime: the objective elements and the mental elements. The objective elements “determine the existence and degree of harm caused by criminal content to interests protected by criminal law,” and the mental elements “express the offender’s attitude towards the violated right.” This framework helps evaluate the level of wrongdoing in the two case examples because it is broad in its scope but does not include factors indirectly related to the crime. Professor Sendor does not consider past crimes the offender committed, or the likelihood of the offender to recidivate. Furthermore, it is essential that Professor Sendor’s framework includes mens rea, because without giving it consideration, the evil of crimes could only be evaluated through statutory classifications.
Consider two people who both robbed a bank and killed a security guard in the process. According to statutory law, this is the same crime. But what if the one person asked the guard to stand down even though the second person pulled the trigger without a second thought? Because the second robber showed less respect toward the guard’s right to life than the first, he committed a greater violation of America’s collective moral values. The second man, according to a retributive assessment of the moral damage he has done, should receive a harsher punishment. By applying Professor Sendor’s model to two vastly different crimes, the level of objective and mental damage of a crime is directly correlated to the appropriateness of retribution as a punitive response.
Comparison of the Nassar and Noble Cases
Larry Nassar’s sentencing hearing was a nationally resounding event that rocked the American conscience. Nassar, an osteopathic physician at Michigan State University who also served as the USA olympic gymnastics team doctor, pled guilty to seven counts of sexual assault of minors. During the hearing, which came a year after he received a 60-year sentence, 156 women took the stand and gave testimony of his abuse. The details emerged in an emotional display, and Judge Rosemarie Aquilina’s opinion reflected the passion of the testimony. In the words of Judge Aquilina, Nassar “couldn’t give them back their innocence, their youth, he couldn’t give a father back his life, or one of his victims’ her life. He couldn’t return the daughter to the mother, the father to the daughter.” This statement suggests that Judge Aquilina sees the damage caused by the “mental elements” is equally devastating to that caused by the physical elements. Many of Nassar’s victims were in their early teens or younger, so they did not understand they were being violated. Thus, Professor Sendor’s model would indicate that Nassar deserved an exceptionally harsh punishment, which parallels what Judge Aquilina gave him: 40 to 175 years in prison, conditioned on his survival of his prior sentence.
Throughout her sentencing speech, Judge Aquilina’s language was forcefully retributive. “I hope you are shaken to your core,” she said directly to Nassar, “Your victims are clearly shaken to their core.” Her judgement evaluated the defendant’s crimes purely in terms of the harm caused to victims, a key tenant of retributivism, and indicated a desire that Nassar experience those conditions as a consequence. Later in her sentencing speech, she told him his “decision to assault was precise, calculated, manipulative, devious, despicable.” This gratuitous use of accusatory adjectives assigns moral blame. In addition to expressing these retributive sentiments, Judge Aquilina also strongly suggested that in this case, the application of any other aims of punishment, such as rehabilitation, would be a futile and wasted effort. Still addressing Nassar, she noted that “[He] could have taken [himself] away from temptation. And [he] did not.” Nassar’s absence of any intent to resist his urges, according to the judge, showed that deterrence and rehabilitation are infeasible means of punishment. In other similar crimes that represent the absolute worst of humanity, there is no outside force coercing the offender to act, and no financial or otherwise utilitarian necessity to act—which is one reason these crimes are so reprehensible in the first place. Deterrence, as a sentencing motivation, relies on fear of consequences. But unless perpetrators of the worst crimes are completely ignorant, they commit offenses while knowing the sentences that could await them.
While delivering the sentence, Judge Aquilina told Nassar that she “just signed [his] death warrant.” Even though judges act as tempered, objective evaluators, Judge Aquilina departed from this standard with pride and showed her focus was on the person who committed the crime, not just the crime itself. This retributive sentiment, and Judge Aquilina’s remarks as a whole, reflect her desire to impose a punishment on a criminal for his flagrant disregard of the rights to life, liberty, and property—the sacred cornerstones of American society.
The second case, Louisiana v Noble, could not be more antithetical to Nassar’s sentencing. Bernard Noble, who had two prior convictions for drug possession, was arrested for possessing two joints that carried a total of less than three grams of marijuana. Under Louisiana’s “habitual offender” law, multiple drug convictions carries a mandatory minimum sentence of about 13 years. However, Judge Max Tobias deemed this sentence too harsh and sentenced Noble to five years instead. The state appealed this decision, and the Louisiana Supreme Court chose not to hear the case. Thus, Judge Tobias was forced to give Noble the mandated 13 years and three months. Still, Tobias expressed his lack of desire to give the sentence throughout his opinion, calling the habitual offenders law “draconian.”
When applying Professor Sendor’s model to this case, the results of the analysis are very different from the analysis of Nassar’s case. Again considering the “objective elements” of the crime, the damage done is nonexistent. Though plenty of Americans disapprove of marijuana use, it doesn’t provoke moral outrage in the same way violent crime does, simply because no harm is done to others. The purpose of retribution is to punish those who damage the values reflected in our laws. Never possessing or using small amounts of cannabis is not a universal principle that composes the social fabric of America, especially when compared to Nassar’s crimes. A devoted father of seven, Noble was gainfully employed as a commercial truck driver for most of his life and had no history of violent crime. Police at the scene determined that Noble had no malicious intent with regard to the drugs, and he also spent his life upholding those broad, unquestionably American values that produce the biggest collective outrage when violated. Professor Sendor’s model would indicate that Noble deserved little to no punishment. Why did the exact opposite outcome ensue?
As previously stated, America is at a punitive impasse. In Noble’s case, even though popular opinion is trending toward cannabis decriminalization, federal laws are slow to catch up. This delayed reaction is not necessarily a bad thing, as America’s judicial institutions would lose credibility if they regularly exerted judicial activism, struck down, and otherwise altered laws. Though precedent is integral to America’s common law system, examining how laws align with the country’s values is always necessary. Victimless crimes have never elicited a high level of collective moral outrage, but the recent level of outrage is lower than ever. Given that retributive punishment should only be employed in cases where Americans want victims to suffer for the “objective” and “mental” damage they caused, there is no reason that retributivism should be applied to victimless crimes.
On the other hand, violent crimes have experienced very little change in their associated level of outrage throughout the course of American history. Our parents, grandparents, and great-grandparents would all look upon Nassar’s crime in the exact same way as we do. Crimes that violate the founding principles of America and its basic moral values will continue to provoke outrage in part because they represent the ultimate betrayal of American identity. Retributivism should primarily be used to address crimes that offend the moral fabric of America, and crimes that do not objectively nor mentally damage Americans are better suited to other punitive aims.
 Tʜᴇ Cᴏᴅᴇ ᴏғ Hᴀᴍᴍᴜʀᴀʙɪ 2250 B.C., Law 196.  Arit John, A Timeline of the Rise and Fall of 'Tough on Crime' Drug Sentencing, Tʜᴇ Aᴛʟᴀɴᴛɪᴄ (April 22, 2014), https://www.theatlantic.com/politics/archive/2014/04/a-timeline-of-the-rise-and-fall-of-tough-on-crime-drug-sentencing/360983/.  Id.  Evelyn Bauman et al., ND for restorative justice: call to action, Tʜᴇ Oʙsᴇʀᴠᴇʀ (April 18, 2016), https://ndsmcobserver.com/2016/04/restorative-justice/.  John, supra note 1.  Cʀɪᴍɪɴᴀʟ Jᴜsᴛɪᴄᴇ Pᴏʟɪᴄʏ Fᴏᴜɴᴅᴀᴛɪᴏɴ, Mᴀɴᴅᴀᴛᴏʀʏ Mɪɴɪᴍᴜᴍs ᴀɴᴅ Sᴇɴᴛᴇɴᴄɪɴɢ Rᴇғᴏʀᴍ (n. d.).  Benjamin B. Sendor, Restorative Retributivism, 5 J. Cᴏɴᴛᴇᴍᴘ. Lᴇɢᴀʟ Issᴜᴇs, 323 (1994).  Id. at 325.  Id.  Matt Mencarini et al., Dr. Larry Nassar pleads guilty to 7 counts of first-degree criminal sexual conduct, IɴᴅʏSᴛᴀʀ (Nov. 22, 2017, 4:25 PM), available at https://www.indystar.com/story/news/crime/2017/11/22/dr-larry-nassar-pleads-guilty-7-counts-first-degree-criminal-sexual-conduct/888780001/.  People of the State of Michigan v. Lawrence Gerard Nassar, No. 341004 (Mich. 30th Jud. Cir. Ct. 2018).  Id.  Id.  Id.  Id.  State of Louisiana v. Noble, 133 So.3d 703 (La. Ct. App. 4th Cir., 2014).  H.R 529.1, 1999 Leg., Reg. Sess. (La. 1999).  Noble, 133 So.3d at 707.  Paul G. Mattiuzzi, Why are we so fascinated with murder?, Eᴠᴇʀᴅᴀʏ Psʏᴄʜᴏʟᴏɢʏ (May 24, 2011), https://www.everydaypsychology.com/2011/05/why-are-we-so-fascinated-with-murder.html#.XnvastNKj_Q.  Id.