What Mark Bennett at Defending People said, but with a minor quibble
Read the whole thing: Schadenfreude, Irony, and The Defense Function
The whole post is excellent and thought-provoking, but I took issue with this:
Normal people (like normal dogs) have an innate sense of fairness: people should get what they deserve, and no worse. But normal people also seem to have an innate sense of retribution: people who do harm should be punished, regardless of their culpability. Retribution is what makes a child angry at the sofa on which he stubs his toe, and retribution is what makes the punishment for DWI with no injury different than punishment for intoxicated manslaughter.
In most crimes the criminal intent is ordinarily co-extensive with the harm caused. Felony murder and intoxicated manslaughter are two counterexamples where there can be a real disconnect between what was intended and the harm caused. But imagine a prosecutor who knows that the man he’s prosecuting is innocent but cheats his way to a conviction and a twenty year sentence. After ten long years the prosecutor’s crime is discovered and the defendant is exonerated and released from prison. Seems to me the prosecutor probably deserves at least ten years in prison, to make the evil of his crime be to him what it is to everyone else. Or does he deserve at least twenty, since that is the harm he intended to the innocent defendant? In this instance, harm-based retribution would actually be more lenient than punishment based solely on intent.
“Retribution” can and should be directed at the actual criminal intent rather than the harm caused by it, in a measure proportionate to the harm intended. (Though I’m also all for using the fact that intended harm did not occur as an occasion for leniency and mercy.) You’ve defined retribution in an intriguing way precluding this, to mean punishment for harm abstracted from culpability, but I’m not sure that’s what retribution necessarily signifies.
If not in retribution proportionate to the harm intended, where would we find the appropriate punishment for my hypothetical prosecutor? In other goals of punishment, like deterrence? How many years of imprisonment would sufficiently deter other prosecutors with similar inclinations from intentionally or recklessly sending an innocent man to prison for twenty years? Giving the prosecutor a fifty year sentence would presumably deter such prosecutorial misconduct more effectively than a twenty year sentence.
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