Wirts, Amelia M.

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BOOK REVIEWReview of Matthew C. Altman, A Theory of Legal Punishment: Deterrence,Retribution, and the Aims of the State (London: Routledge, 2021), pp. 310, $273Matthew Altman’s A Theory of Legal Punishments sets forth a thor-ough, systematic account of punishment that relies on both a con-sequentialist and a retributivist justification of punishment.Preferring the term ‘‘two-tiered model’’ to ‘‘mixed theory,’’ Altmanargues that the legislature should employ consequentialist aimswhile the judiciary should operate with a retributivist purpose. Thelegislature should define classes of criminal acts and set out ranges ofpunishment for each class of crime based on the punishment’s abilityto maintain public order. In contrast, after determining guilt, thejudiciary should assign an individual punishment within the legisla-tively determined range based on the goal of expressing appropriateresentment. Far from an abstract theory, the two-tiered modellaudably aims at being action guiding for policymakers. Altman endsthe book by explaining why his model calls for death penalty abo-lition and supports exploratory implementation of restorative justicepractices within existing punishment institutions.Altman sets out the core of his theory in Part II of the book. Therehe defends a particular sort of consequentialism and retributivism,and he explains how these apparently contradictory approaches topunishment can be resolved through his two-tiered model.I. CONSEQUENTIALISM AND PROMOTING PUBLIC ORDERAltman’s argument for consequentialism is that a state cannotfunction without taking some care to preserve public order. Heargues that, in a retributivist utopia where the state gives everycriminal what they deserve but does not attend to maintaining publicorder, the state has failed to do its most basic job. If given a choicebetween a state devoted only to retributivist punishment or only toconsequentialist punishment, Altman argues that people would inLaw and Philosophy (2023) 42: 205–210  The Author(s), under exclusive licence to Springer Nature B.V. 2022https://doi.org/10.1007/s10982-022-09470-wfact prefer a society in which public order is maintained even if notevery criminal gets the punishment they deserve. This shows thatthe primary purpose of punishment for the state is to maintain publicorder through deterrence, broadly construed to include any pre-vention of future crime, including specific and general deterrence,incapacitation, or rehabilitation.Of course, in a just state, the goal is not to preserve order at allcosts. Altman argues that the consequentialist goal of public ordershould be understood in the context of a just state, which he calls arequirement of ‘reasonability’ as opposed to pure rationality. ‘‘Statesponsored punishment is legally [rationally] justified only if thepunishment helps to maintain the state and enforce its laws, or canbe reasonably expected to do so.’’ (57). ‘‘State-sponsored punishmentis morally [reasonably] justified if and only if (a) the state itself isjustified, its laws promote a just arrangement, and (b) there is no lessharmful alternative that would as effectively maintain the state.’’(62). A punishment system is only justified if it is both rational andreasonable.II. RETRIBUTIVISM AND EXPRESSING RESENTMENTHaving argued that consequentialism is the proper goal of the state,Altman then makes what seems to be the contrary argument: thatretributivism based on the expression of resentment is the propergoal of the state. He argues for a resentment-based retributivismbecause resentment is an attitude or emotion with the kind ofcontent that can be either unjustified or justified. As a reactionaryattitude, it is only warranted when in fact someone has done ablameworthy act. It is thus better than anger or vengefulness as areaction to a crime. Having established resentment as the properresponse to crime from victims and the community, Altman explainswhy the state in particular is justified in expressing resentment onbehalf of the victim. He gives several reasons. First, the state is in agood position to do so because ‘‘criminal acts threaten the socialorder, so the offender should be subjected to a public, state-spon-sored process.’’ (78). This allows for the expression of properresentment without the concern that victims will over-punish basedon anger or vengefulness. Even if the victim fails to have appropriatefeelings of resentment, the state’s response to the criminal can helpBOOK REVIEW206the victim clarify their emotions and come to have proper feelings ofresentment. ‘‘The public feels resentment on their behalf and thepunishment of the abuser is part of an attempt to correct the falsebelief resulting from a distorted moral education, that love can beexpressed through violence.’’ (79).Although Altman purports to advocate for a retributivist expres-sivism, his reasons for the state expressing the victim’s resent-ment—to preserve public order, to morally educate, to avoidvigilantism—at least appear to be consequentialist.III. RESOLVING THE ANTINOMY OF PUNISHMENTHaving argued that both consequentialism and retributivism arewarranted goals of the state, Alman seeks to resolve this apparenttension. He draws on the analogy that other philosophers have sug-gested between Kant’s antinomies of reason and the conflict betweenretributivism and consequentialism, ‘‘the antinomy of punishment.’’For those who are not familiar with the antinomies, in the most famousantinomy of reason, Kant argues that it seems like both determinismand libertarianism (belief in human freedom) must be true, but theyare rationally in conflict. Kant resolves this contradiction by arguingthat in the phenomenal realm, everything is determined, but in thenoumenal realm, human freedom is possible. Alman makes a similarmove. Assuming one is convinced by the foregoing defenses of con-sequentialism and retributivism, one is stuck in an antinomy becausethey are directly in conflict (like determinism and freedom). Thisantinomy can be resolved by saying that these contradictory purposesoperate on different levels. This is the primary argument for the two-tiered model: both purposes can operate on their own levels withoutcontradiction. Consequentialism is the correct purpose and justifica-tion for punishment at the legislative level, while at the judicial level,punishment is justified by and aims toward retributivism.IV. CONSEQUENTIALIST LEGISLATUREOn the two-tiered model, the legislature determines which actsshould be criminal, what elements must be proven for each crime,BOOK REVIEW 207and how much punishment is warranted based on the goal ofmaintaining a public order that is also reasonable and just. In a liberalsociety, this will mean that criminal laws and punishments are not sostrict so as to undermine liberty rights, so they should not aim atpreventing every harm. The legislature ought to set a range ofpunishments for each class of crimes. The severity of the rangeshould be motivated by the best social science data available aboutwhat is actually effective at deterring, keeping in mind costs ofpunishment (not simply monetary costs, but social ones as well) andmarginal utility.In a well-researched chapter, Altman defends the use of crimi-nology in sentencing, arguing against the retributivists of the 1970swho overreacted to the limitations of social science data at the time.‘‘It seems quite strange that a group of philosophers working in thisfield would give up on consequentialism and become retributivists inlarge part because criminology has not yet perfected its methods.Apparently, because we do not know how to best use punishment tomaintain the social order, punishment does not need to maintain thesocial order’’ (171). For Altman, not only will empirical evidencehelp legislatures give the least severe punishments that still deter, butalso this evidence might point to other responses to crime beyondhard treatment. For example, empirical evidence shows that drugtreatment programs are much more effective than incarceration indeterring drug crime, and legislatures should rely on evidence likethis when designing all kinds of responses to crime.V. RETRIBUTIVIST JUDICIARYThe judiciary’s role is to make sure that these punishments are onlygiven out to those who are actually guilty of committing crimes.Judges also must assign a sentence within the range set by the leg-islature that expresses the right amount of resentment based on theparticularities of the criminal act and the person who committed it.At first blush, this may resemble John Rawls’ argument for a sort ofmixed theory of punishment where the practice of punishment isjustified by consequentialist aims of protecting individuals fromharm, but judges must assign blame only to the guilty because thatmakes for the best punishment practice. Altman argues that hismodel is different because it actually takes the retributivist practice ofBOOK REVIEW208expressing resentment as good in itself, not just as a rule that isinstrumentally good for the practice of punishment.VI. PROBLEMS WITH PROPORTIONALITYThe legislature determines which wrongs should be criminal andhow much to punish based on the goal of maintaining order. Giventhat it is impossible and imprudent to try to deter every single crime,Altman argues that the lower threshold of punishment for a givencrime class should be set by determining how much of a deterrent isnecessary to keep that class of crimes within an ‘‘acceptable level.’’(96). The upper limit of the severity should be that at which there isno more deterrent effect by increasing the punishment. As Altmannotes, this is oversimplified, as severity of punishment is only part ofdeterrence, along with certainty and celerity. States should alsoconsider costs of punishments and the system as a whole, includingthe fact that resources spent on criminal punishment are taken awayfrom other programs and other types of costs like the harms tofamilies of those incarcerated. Still, the main focus in setting therange of punishments is effectively keeping the crime rate of eachclass of crime at an acceptable level, and legislatures should notconsider the expression of resentment when setting these ranges.Within this range, judges presumably give the more severe sen-tences to those who are more blameworthy, thus expressing anappropriate level of resentment. Judges have no control over theranges themselves.Here is where Altman’s theory runs into a complication. Theseverity of a punishment range for a class of crime will be deter-mined by effective deterrence. Judges merely set individual punish-ments based on those ranges. On this model, a cold blooded,calculating tax evader will get the harsh end of the tax evasion range,whereas someone who evading taxes in a last-minute act of des-peration would get the lower end. Ordinal proportionality withincrime classes is secured, but there is no reason to think that theranges set for different classes of crimes will express resentment inanything that resembles proportionality. Imagine, for example, thatseverity matters little to those who commit murder (as plenty ofevidence suggests). In a given country, an eight-year sentence willBOOK REVIEW 209keep murder at an acceptable rate, but anything above a ten-yearsentence adds no further deterrent effect. The range the legislatureshould set is eight to ten years. But imagine tax evasion is just verydifficult to deter in this country because most evaders do not getcaught, so it is rational for potential evaders to take bigger risks. Tokeep tax evasion at an acceptable rate, those who are caught mustget 10 years in prison, and each year of prison is more effective atdeterring, up to 20 years. Thus, the range the legislature should set isten to twenty years. This would mean the worst murderer would bepunished with the same amount of expressed resentment as the leastblameworthy tax evader. Altman argues that this is not going tohappen simply because, the more serious the crime, the smaller the‘acceptable rate’ of that crime will be. He thus presumes this willavoid the kind of problem above. But there is nothing inherent incrimes or in human behavior that ensures this calculation will notproduce at least facially disproportionate expressions of resentment.Altman stakes his retributivist argument on the need for the state toexpress resentment on behalf of victims, but if punishments fail toalign with the loosest conceptions of proportionality, the idea thatpunishments express justified resentment will start to fall apart. In-stead, it might turn out that we only end up with the value ofnegative retributivism, which is much less than the two-tiered modelpromises.Amelia M. WirtsUniversity of Washington,Seattle, WA, USAE-mail: amwirts@uw.eduPublisher’s Note Springer Nature remains neutral with regard to jurisdictionalclaims in published maps and institutional affiliations.BOOK REVIEW210

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