Sometimes people are sentenced to “time served”: the time they spent in jail prior to trial is retroactively counted as their sentence. But doesn’t justice call for harsh treatment to be imposed as a punishment? The jail time, however, was not imposed on the malefactor as a punishment—it was imposed on a person presumed innocent to negate a probability of flight. How can it turn into a punishment retroactively?
Well, one solution is to reject a retributive account of punishment. Another is to say that justice is served by such punishment.
But I think there is a less revisionary approach. Instead of saying that justice calls for harsh treatment to be imposed, say that justice calls for one to ensure something harsh happening as a result of the crime. Sometimes, one ensures a state of affairs by causally imposing it. But one can also ensure a state of affairs by verifying the occurrence of the state of affairs while being committed to causing the state of affairs if that were to fail.
This provides a way for a retributivist to accept the intuition that if someone is paralyzed for life as a result of trying to blow a bank vault, there need be no further call to send them to prison—one may be able to ensure more than sufficient punishment simply by verifying that the paralysis occurred as a result of the crime. Another way for the retributivist to accept that intuition would be to say that while we didn’t impose the paralysis on the robber as a punishment, God did. But the move from imposing to ensuring allows the retributivist to avoid mixing up God in human justice here.
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