4. Retributive justifications for punishment- such as theories about making punishment "fit" what the crime or criminal "deserves" have been criticized on grounds that they assume we know a lot more than we do. For example, it is notorious that different jurisdictions assign different punishments for the same offense. In addition, it is notoriously difficult to assess an individual's personal blameworthiness for criminal conduct in terms of his or her personal history. However, neither of these factors is substantial enough to challenge the validity of retributive justice schemes. After all, it is to be expected that different jurisdictions would have different punishments for the same criminal behavior, because cultural values vary across the United States, with certain cultures and regional areas placing greater emphasis on different values. The federal system of government practically dictates that there will be conflict among the many criminal justice systems in the United States. Furthermore, an individual's personal history really should not be relevant to a punishment system. Regardless of an individual's background, one either had the ability to understand that what they were doing was a crime and should not be done at the time the crime was committed, or one did not. Such a determination, which would examine a defendant's mental competence, screening out issues such as mental retardation and mental illness, would place all competent defendants on an equal footing. A democratic form of government demands nothing less; in a society like ours, which is plagued by both racial and social prejudice, consideration of a person's personal background inevitably leads to harsher punishments for those who are disadvantaged and have had troubled lives, the very people that most opponents of a retributive justice system believe should receive less punishment.
However, a defendant's personal history can have a tremendous bearing on individual culpability in at least three ways, which are not fully accounted for in our modern criminal justice system. First, although there is currently a moratorium on the death penalty for the mentally retarded, there are no clear-cut laws regarding their criminal culpability. On the contrary, those decisions are made on a case-by-case basis. However, they are done so within a retributive justice scheme, which gives people like judges and jurors, who may not truly understand mental retardation and its impact on an individual's decision-making capabilities and impulse control, the ability to determine whether or not someone is competent to face prosecution and punishment.
Second, the mentally ill compose an extremely disproportionate part of the prison population. Like the mentally retarded, people with mental illness are judged by people with little expertise in mental illness, who frequently apply judgments based on personal value systems and their own understanding of mental illness, to determine that someone is legally capable of facing charges for criminal activity. Approximately 20% of the people in jail are seriously mentally ill, which means that there are more seriously mentally ill people in jail than in hospitals or other treatment facilities. (Butterfield). Furthermore, because of their mental illnesses, these inmates are frequently disciplinary problems in the prison setting, leading them into solitary confinement and other types of punishment that can actually compound their mental illnesses and make them less safe when released from prison. If it can be determined that a person's mental illness played a substantial contributing part in their criminal behavior, it makes sense that the person should receive treatment for that illness, making them safe for society. At that point, it might be appropriate to then apply a retributive form of punishment, but doing so before treating an individual greatly reduces the possibility that it would even prohibit that individual from re-offending in the same manner.
Finally, as the reports on violent crime demonstrate, people are much more likely to be violently victimized by a loved-one than by a stranger. Moreover, family violence can create such an atmosphere of fear that it leads the victims to act out in self-protection in a manner that the rest of society might understand as disproportionate. However, since the majority of murdered women are killed by a spouse, the majority of molested children are preyed upon by relatives and family friends, and most child homicides are committed by parents, it makes sense for these victims to act out in extreme self-defense. However, to a…