Reservations about Retribution in Secular Society

INTRODUCTION Martin Gardner's thoughtful article Viewing the Criminal Sanction Through Latter-day Saint Thought1 is an intriguing exploration of the intersection of western secular law, on the one hand, and concepts of eternal law contained in the theology and practice of the Church of Jesus Christ of Latter-day Saints, on the other. It provides a fruitful opportunity for additional thought about the relationship between the criminal sanction and moral responsibility generally, as well as about the impact of Latter-day Saint (LDS) theology on justificatory theories of punishment. I am delighted to react to Gardner's work and to offer my own observations and reflections, albeit from a jurisprudential perspective outside the immediate field of Criminal Law. Primarily, my aim is to explain why I remain skeptical of Gardner's suggestion that Latter-day Saint theology justifies imposing secular punishment2 on a retributive basis.3 While I am sympathetic with Gardner's sense that LDS theology and its emphasis on personal agency, accountability, and eternal growth strongly support the claim that moral wrongdoing deserves a sanction,4 I am unpersuaded that the theology sustains a retributive justification for secular societies to impose this sanction or to punish wrongdoing. Where Gardner suggests that secular or criminal "punishment is required in order that justice be done,"5 I would suggest that such punishments instead merely have the potential to facilitate the achievement of ultimate justice. My response will proceed in two parts. Part I will discuss what I see as some general theoretical obstacles to justifying secular retribution upon ideas in LDS theology. In particular, I will explain that largely because of society's inherent difficulties in determining and meting out "just deserts," I remain skeptical that secular retribution is required to do justice. While these difficulties provide arguments for rejecting retributivism independent of theology, I believe they resonate with principles of LDS doctrine and resulting ideas of ultimate or eternal justice. Part II will discuss specific aspects of LDS theology that seem to my mind to count against any requirement for secular retribution. Principal among these is the doctrine of the atonement of Christ, as a result of which each individual need not suffer the full consequences of personal wrongdoing. This Part will also respond to many of Gardner's particular arguments from LDS scripture and statements of church leaders, arguing that, if anything, these same sources more strongly support a utilitarian justification for secular punishment. I. GENERAL THEORETICAL DIFFICULTIES WITH RETRIBUTIVE JUSTICE To explain my lingering skepticism that LDS theology sustains a retributive justification for secular societies to impose criminal punishment, I will first describe what I understand "retribution" to mean. Next, I will briefly argue that retribution is both too broad and too narrow a justification for secular punishment. As a specific example, I then will discuss Gardner's approach to the death penalty, explaining why his insights there pose broader problems for what I take to be his claim concerning the necessity of secular retribution. A. The Idea of Retribution from an LDS Perspective At the outset, it is important to clarify how I interpret Gardner to use the term "retribution." In common parlance, we often hear the word retribution used to include revenge or "getting even."6 In contrast, Gardner appropriately has narrowed the idea of retribution to exclude revenge and has defined it instead simply as the idea of "just deserts," or as a "demand of justice" that must be met.7 In other words, one who commits a wrong therefore deserves to be punished. But why must this demand be met? Here, retribution seems to connote a cosmic or eternal "squaring of accounts," or moral balancing.8 Gardner identifies two distinctive aspects of this reconciliation, one focused on making whole the larger community, the other focused on making whole the wrongdoer. …