552 Justice, Equity, and Fairness in Human Relations
violation of the basic values of the community, those which
make up its identity and its self-esteem, as well as violation
of the sacred symbols of a society (e.g., its religious tenets, its
flag) demand retribution. The primary purpose of retribution
is atonement.
The rational-choice model also offers an explanation of
why compensation alone is insufficient. If the bank robber
could compensate the crime simply by returning the money,
there would be no deterrent: He or she could attempt it again
and again without risk, in the hopes of one day not being
caught. Therefore, retribution must be independent of com-
pensation for damages. Alongside atonement and compensa-
tion for damages, a third purpose in legal punishment is
deterrence, which is supposed to have an effect on the perpe-
trator as well as on the public at large. Additional functions of
legal punishment are considered: building up or reinforcing a
sense of justice in the population, resocializing the perpetra-
tor, and protecting the community by incapacitation of the
offender (e.g., by imprisonment or death penalty).
Analyzing the valuations of the various functions of legal
punishment,Vidmar & Miller (1980) identified two main mo-
tives: a controlling and a retaliation motive. The retaliation
motive emphasizes the perpetrator’s guilt and the severity of
the crime. The function of atonement is placed in the fore-
ground. The controlling motive aims at keeping the criminal
in check and protecting society. Of importance are the dan-
gerousness of the criminal and the degree of harmfulness of
the crime. Miller and Vidmar also differentiate the motives
according to whether they are directed at the perpetrator or at
a third party: A motive for retaliation can also be to dampen
public outcry. We should take this psychological analysis a
step further and distinguish between deterring the perpetra-
tors and resocializing them because different measures seem
to be appropriate for those two goals.
It is remarkable that the victims of crimes are only mar-
ginally considered in the functions of retribution, if at all. In
fact, in the historical development of criminal justice in the
modern age, the main focus was protecting society and guar-
anteeing fairness to the perpetrator, not to providing justice to
the victim. For a long time, the victim played exclusively the
role of a witness in criminal proceedings. The witness does
not have a powerful role: He or she does not control the pro-
cedure, and his or her credibility and reputation may be
doubted. Only recently have victims had the right to function
as joint plaintiffs in such crimes as rape and bodily injury,
thereby gaining a bit more control in the course of the trial;
this should be relevant for their assessment of procedural
justice, according to hypotheses forwarded by Thibault and
Walker (1975). Whether the victim received justice was of
no concern to the criminal justice system. Victimology has
finally taken the rights of victims seriously—for example,
their need for acknowledgement of their status as victims,
which will be documented by the conviction of the perpetra-
tor (Fischer, Becker-Fischer, & Düchting, 1998).
The various goals of legal punishment may conflict with
one another and thus create their own problems of justice: Is
the retributive sentencing of a young offender for robbery with
grievous bodily harm to the victim just, or is a mild sentence
with an attempt at his resocialization more just? When general
deterrence is the objection, the mitigating factors associated
with the individual offense may easily be overlooked.Perpetrator’s Responsibility and BlameworthinessIn criminal law the severity of the crime is the first decisive
factor in determining the degree of guilt and blameworthiness
of the offender (recognizable by the range of penalties for a
crime). Moreover, mitigating and aggravating circumstances
are considered. Special importance is given to the assessment
of the offender’s responsibility for the criminal act and to po-
tential justifications of this act. This practice coincides with
the sense of retributive justice in the public.
A guilty verdict presupposes the attribution of responsibil-
ityto the perpetrator. The assessment of the defendant’s
responsibility is a core problem in jurisprudence. Defendants
may use any of eight arguments to deny or to diminish their
responsibility for their behavior and its consequences
(cf. Hamilton & Hagiwara, 1992; Heider, 1958; Montada,
2001b; Semin & Manstead, 1983):1.Denial of agency.Persons may deny that their behavior
was under their voluntary control. Reasons given for the
lack of volitional control include lack of competence, fa-
tigue, external influences, effects of drugs, intense affects,
and so on. In the courtroom, for instance, insanity, intense
emotional states, or being under the influence of drugs
are sometimes accepted as factors that exclude or reduce
actors’ responsibility for their deeds.
2.Lack of foreseeability of consequences.Persons may deny
that the consequences of their actions could have been
foreseen.
3.Lack of intent.Persons may deny that the negative effects
of their actions were intentional; this may lower the de-
gree of responsibility assigned to them, but does not free
them of responsibility in every case (Heider, 1958).
The person may be judged not to be malevolent, but he or
she may still be blamed for carelessness.
4.Assigning coresponsibility to others.Persons may try to
reduce their own responsibility by attributing responsibil-
ity to coactors.