Punishment for the Greater Good
Author: Adam J. Kolber
Publisher: Oxford Academic Press, 2024. 264 pages.
Reviewer: Jordan Wallace-Wolf | Spring 2025
Adam Kolber’s goal in Punishment for the Greater Good is to unsettle the widespread belief among punishment theorists that retributivism is superior to consequentialism.[1] He pursues this goal across seven chapters—two comparing retributivism to consequentialism, two developing and defending the latter,[2] two posing additional puzzles for the former, and a final chapter about whether the time is right to abolish incarceration.
A variety of themes and arguments run throughout, including the unmanageable complexity of retributivism, the comparative flexibility and parsimoniousness of consequentialism, and the importance of treating the suffering of wrongdoers humanely, not as a good in itself, but as serious cost that must always pay its way in a justified regime of state punishment.
Rather than tour all of these ideas and their elaboration, I will instead engage with one representative and extended line of argument. It is that proportional punishment—the idea that there are “fitting” or appropriate punishments for offenses—is unworkable and possibly incoherent.[3] Kolber argues that, because consequentialism need not aim at proportional punishment, it is capable of yielding tolerably determinate results with respect to whether penal institutions (chiefly, incarceration) are justified here and now—under the conditions of the world as we find it.[4]
This theme is introduced in the book’s first, framing chapter. There, Kolber writes, “a pure consequentialist approach—one that denies the intrinsic value of imposing deserved punishment—is superior to its most common competitor that I will call standard retributivism, which affirms the intrinsic value of deserved punishment.”[5]
This framing might give the impression that the main question of the book is a narrow inquiry about whether it’s good for offenders to be punished. But in fact its antagonist is “standard retributivism,” which consists of a cluster of familiar “deontological” positions about the nature of morality and rights, in addition to the value claim, championed prominently by Michael Moore, that “it is intrinsically good when wrongdoers receive the punishment they deserve.”[6] The target of the book, thus, is a package of views that may often travel together, but need not.
This framing is welcome because it captures a set of claims that are recognizable, widely held, and contrast starkly with Kolber’s. However, it also leaves out some views. Some consequentialists might accept what Kolber denies—that it’s good for wrongdoers to be punished.[7] Moreover, some deontologists do not accept that it is intrinsically good for wrongdoers to suffer punishment. Instead, they hold other views, such as that wrongdoers may permissibly be made to suffer punishment, or that they are obligated to suffer it under certain circumstances.[8] Many start from claims about duties and rights regarding self-defense rather than from the value of wrongdoer suffering.[9]
Having thus framed the book’s subject—consequentialism versus standard retributivism as he defines it—Kolber goes on to champion an aggregative, maximizing version of the former.[10] However, he does not claim that consequentialism is the correct moral theory and that standard retributivism is not.[11] Instead, he argues for a weaker claim, which is that compared to standard retributivism, consequentialism is a better theory. Specifically, it is superior “when applied to incarceration in the here and now.”[12] This claim of the here-and-now superiority of consequentialism to standard retributivism is a key theme of the book.[13]
Kolber elaborates as follows: “By looking through a here-and-now lens, I hope to go beyond the usual debate between retributivists and consequentialists. Picture the usual battle as between retributivist and consequentialist race cars in which we fine tune each to see which is better. I claim that in the here and now, the retributivist car likely lacks too many parts to even compete.”[14] Later, Kolber says that retributivism and consequentialism are like recipes for making muffins, but that the retributivist “recipe” is missing too many steps to result in any muffins.[15]
I wonder about the kind of comparative superiority that is being claimed for consequentialism via these metaphors. Does retributivism really have no way of thinking about punishment here and now?[16] Is it missing a theoretical “part”? And if it is, is the trouble practical—that retributivism cannot guide our decisions “here and now?” in the way that an incomplete racecar cannot race? It seems, to the contrary, that theories are primarily evaluable as true or false, not as useful or not, or easily applicable or not, and hence the metaphors about retributivism’s comparative failure to achieve a determinate result would benefit from additional unpacking.[17]
In any case, in Chapter 2, Kolber argues in earnest for the here and now superiority of consequentialism over standard retributivism. His main claim is that “while both standard retributivism and pure consequentialism require difficult axiological choices, standard retributivism relies on concepts like desert, culpability, and proportional punishment that are too inchoate to implement in a justifiable manner.”[18]
Specifically, Kolber imagines that, to apply their theory, retributivists must have a way of figuring out how culpable and bad the defendant’s act is and, on that basis, how much punishment it earns. But, he claims, neither can be done. This is a problem, Kolber says, because we “cannot incarcerate people today based on a promise to figure out how proportionality works tomorrow.”[19]
Though I don’t subscribe to the view Kolber is addressing, I think his case against it is open to doubt. My initial reservation is that both consequentialism and retributivism must make numerous intuitive choices about how values quantify, relate, and weigh up. For instance, criminal laws targeting opioid abuse will, plausibly, put some people in jail, reduce opioid use, and save lives. But how should these consequences— freedom of movement and association due to confinement, chemically induced pleasure, and life itself—be commensurated? What is the tradeoff schedule between them? Answering this question and others arguably requires intuition, if they can be answered at all.
I think Kolber agrees with this much.[20] But if so, then it seems there is no relative superiority argument for the former, at least, not just because retributivism requires intuitions about what is valuable.
It is true, as Kolber points out, that standard retributivism countenances one more (intuited) value than consequentialism (deserved punishment) does,[21] but I doubt this is determinative.[22] It seems that the difference between the two theories presents a substantive question (is deserved punishment really good?) about the deliverances of a faculty that they both rely on, not a clear advantage for the more parsimonious theory simply because it is parsimonious. After all, hedonistic utilitarianism need not compare diverse values like beauty, freedom, and life. It recognizes only pleasure as good, but this hardly makes it automatically superior to more sophisticated versions of consequentialism that recognize more values. Arguably, the latter kind of theory is superior despite its value pluralism because there are, it has seemed to many, a plurality of values. Why could standard retributivism not rely on the same argument? It might claim that, insofar as deserved punishment can be shown to be plausible, its addition to the catalogue of intuited values that a punishment theory recognizes is no embarrassment.
As Chapter Two proceeds, it becomes apparent that Kolber’s argument is not merely that standard retributivism suffers because it relies on intuition, nor because it recognizes a marginally expanded set of intuited values, but rather because the value it recognizes—deserved punishment—is especially or distinctly suspect, difficult to determine, or both.[23]
Kolber makes at least two arguments towards that conclusion: first, that the value of retributive punishment is conditional (it depends on a wrong being committed already) and second that judgments about appropriate retribution vary, especially across cultures.[24]
These arguments deserve deeper scrutiny than I can provide, but I am unsure whether they fatally distinguish deserved punishment from other goods. Some goods may be conditional, such as the goodness of apologies or of a life that is better for someone who already exists. [25] Moreover, disagreements about how much punishment is deserved do not immediately entail that there is no matter of fact about the same. Deserved punishment may also be relative to political communities or to the conditions of those communities.
More generally, I wonder how incoherent proportionality judgments really are. Kolber is right to stridently deny that there is some non-value quantity that proportionality judgments track, in the way that a jury’s judgment about the damages owed to a plaintiff for tortious damage to her car tracks its market value. But this does not mean that proportionality judgments are arbitrary. People agree on what makes actions more or less wrong. They at least respond to arguments in this domain, e.g., “he was trying to feed his kids” is more persuasive than “he was late for work.” And though proportionality judgments vary, there may also be a variable range of punishments for a given wrong that qualify as proportional. Landing in this range may not be a function of specifying what retributive intuition is tracking, but rather of creating conditions that permit the robust exercise of that judgment in response to the defendant’s wrong.[26] For instance, the Eight Amendment does not specify a formula for calculating how much punishment the defendant earned. Instead, it speaks in terms of cruelty.
In the chapters 5 and 6, Kolber poses additional, more freestanding and less comparative challenges to retributivism. In Chapter Five, he continues to scrutinize the notion of proportionality operating in retributivists theories.
One of his first arguments addresses the view, imputed to retributivists, that punishment must be “deliberately” or “intentionally” imposed.[27] He argues convincingly that this should not be understood to mean that a punisher can, solely by her intentions, determine which aspects of imposed treatment are punitive.[28] If this were so, then two defendants (Alpha and Beta) sentenced to the same prison term under identical conditions might receive different punishments, so long as the two judges who sentenced them (A and B) had different intentions about which aspects of prison they intended as punishment: loss of free movement and discomfort or just the loss of free movement.
This seems absurd, and I agree. It seems that if one imposes treatment X for someone on the basis of their wrong (a prison term), then X and all its foreseeable or characteristic consequences is the punishment, or that the foreseeable consequences of punishment must at least be justified.
Kolber follows the above argument with a second one: the time served puzzle. It consists of three inconsistent claims: (1) pretrial detention is not punishment; (2) the defendant’s sentence should punish them proportional to their blameworthiness; (3) convicted detainees routinely receive credit toward their sentence for time served.[29] Put simply, it seems time served amounts to the defendant receiving a punishment that is discounted relative to what they should have received, based their wrongdoing.
Kolber considers various responses to this puzzle, and persuasively argues against a number of them.[30] Two still seem worth exploring. One is to reject (3), on the grounds that the practice of time served is confused, and should be reformed.[31] This to me does not seem so costly since practice often fails to track theory.[32]
A second, more ambitious response, is offered by Raff Donelson.[33] He denies (1), arguing that though pre-trial detention is not punishment as such, it does qualify as such—what he calls “natural punishment”—for those who are guilty. Hence, if the government finds the defendant guilty, it must also find that his pre-trial detention was (natural) punishment. And if the defendant’s pre-trial detention is as much punishment as his subsequent sentence, it can be taken into account in reducing the latter.[34] This proposal has not been thoroughly discussed, but some critical comments have been made about elsewhere.[35]
For his part, Kolber argues in an earlier paper against “recharacterizing” pretrial detention as punishment on the grounds that it would make our “punishment characterizations too implausible. For example, when a person is erroneously convicted and forced to spend a decade in prison, we could simply recharacterize his treatment after the fact as non-punishment.”[36]
Perhaps this is ultimately the correct response. However, Donelson’s proposal does not necessarily entail that an erroneously imposed sentence can or should be recharacterized as non-punitive simply because the defendant is in fact innocent. Rather, his claim is that guilty defendants can suffer natural punishment before they are subject to the “artificial” punishment meted out by the government; hence, judging a defendant guilty and subject to artificial punishment requires judging them to have been already suffered some natural punishment via pre-trial detention. When the government makes a mistake and sentences an innocent defendant, the defendant has not yet suffered natural punishment because he is in fact innocent, but he may yet suffer artificial punishment by virtue of the government’s belief that he is guilty. Punitive intentions may be sufficient but not necessary for punishment.
On the whole, Punishment for the Greater Good combines a humanitarian concern for those who are punished with a sustained skepticism about retributive intuitions. Both should spur standard retributivists to renew their defense of their central category.
Jordan Wallace-Wolf is an Assistant Professor of Law at The University of Arkansas, Little Rock.
[1] Adam Kolber, Punishment for the Greater Good (2024).
[2] I deal the least with these chapters, and Chapter 7. In Chapter 3, Kolber discusses the way in which consequentialist theories may justifiably rely on decision heuristics when doing so optimizes the good. In Chapter 4, Kolber tackles objections to consequentialism, including the Sheriff hypothetical, which purports to show that consequentialism is false because it requires punishing the innocent.
[3] Kolber, supra note 1, at 1.
[4] Id. at 1.
[5] Id. at 1.
[6] Id. at 5. Michael Moore, Placing Blame (1997).
[7] Id. at 5 (“axiological retributivism is compatible with a kind of “impure” consequentialism that treats deserved punishment as a good consequence.”).
[8] Victor Tadros, Punishment and the Appropriate Response to Wrongdoing, 11 Crim. L. and Phil. 229 (2017) (“I reject retributivism. I doubt that it is impersonally valuable to set back the interests of wrongdoers, even the most serious wrongdoers.”) See Hsin Wen Lee, Consequentialist Theories of Punishment, in Palgrave Handbook on the Philosophy of Punishment 149 (Matthew Altman, ed., 2022) (canvassing theories).
[9] Lee, supra note 8.
[10] He signals his openness to a satisficing consequentialism in principle. Id. at 47.
[11] Id. at 9 (“My ambitions are more modest.”).
[12] Id. at 14. Ch. 2 (“We must decide whether to incarcerate before any theory is perfected.”).
[13] Id. at 23 (“standard retributivism is inadequate in the here and now (and likely inferior to consequentialism, which is at least still in the running)”); Id. at 60 (“Similarly, any form of proportional retributivism that issues IOUs as to the nature of proportionality is out of the running as a here-and-now justification of incarceration.”).
[14] Id. at 14.
[15] Id. at 60.
[16] Later in the book, it seems that the problem is not standard retributivism has no way of thinking about punishment here and now, but that it must do so with an objectionable kind of intuition.
[17] Of course, a theory about a subject matter, X, that can say nothing about how X works, is, one may suspect, not true.
[18] Id. at 23.
[19] Id. at 60.
[20] Id. at 23 (“To implement consequentialism in the here and now, we need to know how to value possible consequences against each other.”); Id. at 69 (“So here’s where the comparison between pure consequentialism and standard retributivism currently stands: both require an axiology.”).
[21] Id. at 49 (“pure consequentialist axiology is more serviceable than retributivist axiology because there is at least one form of intrinsic value—the delivery of deserved punishment—that retributivists must describe and account for that pure consequentialists need not.”).
[22] And it’s likely that he doesn’t mean it to be. See the following paragraph.
[23] Id. at 49.
[24] Id. at 49-62 (discussing the case of Ex Parte Crow Dog in which tribal justice required that a murderer give the victim’s family money, horses, and a blanket.)
[25] Some have claimed that life is arguably good for those who exist, but does not require bringing more people into the world. See Jan Narveson, Utilitarianism and New Generations, 76 Mind 62 (1967); David Boonin-Vail, Don’t Stop Thinking About Tomorrow: Two Paradoxes about Duties to Future Generations, 25 Phil. & Pub. Aff. 267 (1996).
[26] Compare intuition to perception. One may be confident about what one is seeing not because one has independent beliefs about what it’s like, but because one is seeing it up close and in good light.
[27] Punishment for the Greater Good 129 (2024).
[28] 131-133.
[29] 135-137
[30] E.g., that time served credit is compensation for pre-trial detention.
[31] Kimberly Kessler Ferzan, The Trouble With Time Served, 48 BYU L. Rev. 2001 (2023).
[32] Kolber is aware of this response and writes that it “strongly conflicts with most people’s intuitions.” Kolber, supra note 1, at 136.
[33] Raff Donelson, Natural Punishment, 100 N. C. L. Rev. 557, 575-576 (2022).
[34] Id. at . See also, Douglas Husak, “Already Punished Enough,” 18 Phil. Topics 79 (1990) (discussing a version of this idea) (arguing that non-sentence punishment can mitigate the sentence).
[35] See Ferzan, supra note 26; Adam Kolber, Against Proportional Punishment, 66 Vand. L. Rev. 1141 (2013).
[36] Kolber, supra note 29, at 1151.
