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The current criminal justice moment is ripe for discussion of first principles. What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration. One theory recently put forth—reconstructivism—purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system. It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or "reconstructing" the social fabric that crime disrupts. In particular, reconstructivism is a social theory of the criminal law, prioritizing solidarity rather than a moral conception of the common good. Drawing from a line of thinkers, from Aristotle to Hegel to Durkheim, reconstructivism claims to be distinctive and uniquely equipped to explain what the criminal law is and what it should do, as opposed to retributivist or utilitarian based theories. It claims to more richly account for the social effects of punishment that plague the current system, unlike duty-based theories of retribution and the cold instrumentality underlying utilitarian-based punishment that has made criminal justice impersonal and shortsighted. This Article critiques reconstructivism's core claims and presents an alternative theory of punishment that contains insights for the current moment. While reconstructivism critiques the failures of common punishment theories to account for the social nature and effects of punishment, it fails to account for forms of retributivism that are not deontological. In particular, teleological retributivism, or more simply phrased, "restorative retributivism," already contains the descriptively and normatively restorative elements present in reconstructivism. Its conception of the common good rests on the inherently social nature of human affairs and accounts for the solidarity prioritized by reconstructivism. Whereas the reconstructivist prioritizes the socially and culturally constituted, the restorative retributivist seeks to emphasize shared moral intuitions, which social realities inform, but not to the exclusion of other considerations. This distinction has implications for how each theory might critique modern criminal law and punishment. For example, restorative retributivism would view the expansion of the criminal law—both in terms of substance and administration—skeptically, and the modern approach to punishment—both in theory and its carceral form—as contrary to human dignity and too focused on controlling risk rather than promoting individual and social flourishing. This critique, like reconstructivism, has much to offer in the era of the carceral state and can help to reorient punishment to the broader good. It shifts the focus away from control and risk management to dignity and flourishing, leaving room for community involvement, humility in judging, and de-criminalization. In sum, reconstructivism and restorative retributivismare relatives, and both helpfully emphasize the social implications and consequences of the criminal law and punishment.

One dark and rainy night, Yuso sexually assaults and tortures Zelan. In escaping from the scene of his crime, he falls heavily and becomes an impotent paraplegic. Instead of treating his fate as divine retribution for his wicked acts, Yuso sees it as sheer bad luck. He shows no remorse for what he has done, and vainly hopes that he will recover his powers, which he now treats as involuntarily hoarded resources to be used on less rainy days. In the presence of others, he pretends that he has turned over a new leaf. He asks for religious and educational books, hoping (he tells everyone) to make up for his poor education and deprived social background. But he immediately discards them when he is alone in favor of the pornographic magazines which he has bribed a nurse to smuggle in for him. His deception and various obscene acts committed in the hospital are exposed; by the time he comes up for trial, everyone knows that he is still a lustful, sadistic, and unrepentant man.Most retributivists have a sufficient justification for punishing Yuso independently of the social consequences of his punishment. Two features of the case might cause some difficulties. First, Yuso has already experienced considerable suffering and deprivation both before and after his crime, and retributivists might disagree about the relevance of the suffering to his punishment. Secondly, Yuso is unrepentant, and it is unlikely that punishment will change him. This might, as we shall see, create a problem for those who think that the justifying aim of punishment is the moral reform of the offender.

Retributive tbeory has long held pride of place among theories of criminal punishment in both philosophy and in law. It has seemed, at various times, either much more intuitive, or rationally persuasive, or simply more normatively right than other theories. But retributive theory is limited, both in theory and practice, and in many of its versions is best conceived not as a theory of punishment in its own right, but instead as shorthand for a set of constraints on the exercise of punishment. Whether some version of retributive theory is a live possibility in the contemporary world remains very much an open question. In my essay, I consider three interrelated lines of attack against retributive theories of punishment: first, that it relies on philosophical assumptions that are either unrealistic or false; second, that the notion that offenders deserve to be punished, whatever its intuitive appeal, is possibly an empty idea and in any case one unsuited to a politically liberal state; and third, that tile abstractness of most versions of retribution render it unable to offer much in the way of useful, I or concrete policy advice. I f retributivism is to be taken seriously as a robust theory of punishment, it needs to provide replies to each of these lines of criticism.