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For Kant, just punishment requires that punishment be both retributively and democratically sound.
Retributively deserved painful punishment, not amounting to mere revenge, does not necessarily constitute torture.
He also insists that nonpunitive collective sanctions would be both more retributively just than criminal punishment and far more likely to deter future atrocities.
First, in order to be retributively just, they would have to be imposed using the same liberal-legalist procedures that paralyze international criminal trials.
Perhaps the former should still be retributively punished but in ways that are reduced so as to recognize the very difficult circumstances in which they find themselves.
If an indeterminate commitment is impermissible, courts may resort to longer sentences than retributively and incapacitatively permitted and necessary.
In essence--the lurking GP--was this: the Eighth Amendment bar on grossly disproportional punishment incorporates the retributive principle of just deserts (or, more accurately, the idea that even if the general justifying aim of the criminal law is utilitarian in nature, a matter for legislative determination, a state must honor certain retributive limits on utilitarianism, one of which is that punishment must not be retributively grossly disproportional).
If such a response is to be anything more than a reflection of current sentencing conventions, however, we need to be told how (if not in von Hirsch's way) we are to determine the retributively appropriate absolute levels of punishment.
103) Some describe correction retributively as constituting what the culpable actor deserves.
And it is certainly possible retributively to rank punishments so that the most serious punishments are matched with the most serious offenses.
If it is sound, the death penalty can be justified retributively and both her conclusions are false.