7.2 Retribution

Retribution

Retribution is the only ideology that is “backward-looking,” or focused on the past offense. The term “backward-looking” means that the punishment does not address anything in the future, only the past harm done.

Retribution is thought to be the oldest punishment ideology because it expresses the ancient concept of revenge, or “an eye for an eye,” also known as Lex Talionis, which roughly translates as the “law of retaliation.” This concept of vengeance implies that if someone perceives harm, they are within their rights to retaliate at the proportionate level as the harm received. This is because proportionate punishment is a core principle of retribution: offenders who commit the same crime must receive the same punishment. The idea of Lex Talionis was developed in early Babylonian law, and it is here that we see some of the first written forms of justice policy. Dated to 1780 B.C.E., the Babylonian Code, or the Code of Hammurabi, is considered to be the first attempt to make into law justice practices within a society. These laws (pictured below) largely represent the philosophy of punishment known as retributive ideology.

Since the primary goal of retribution is to ensure that punishments are proportionate to the seriousness of the crimes committed, regardless of the individual differences between offenders, the United States Supreme Court created the idea of the proportionality test. This “test” was created as a result of Solem v. Helm (1983), which compares the sentence to the Eighth Amendment to the United States Constitution.  This can be phrased as “a balance of justice for past harm.” People committing the same crime should receive a punishment of the same type and duration that then balances out the crime that was committed.