Punishment

Prisoners, those who probably engaged in criminal activities, might possess different perceptions and notions of moral foundations than non-prisoners. Thus, assessing such foundations among the population without testing the validity of the measure may produce biased outcomes. To address the potential methodological issue, we examined the validity of the measurement model for moral foundations among prisoners and community members, i.e., non-prisoners. We conducted the measurement invariance test and measurement alignment to test whether the model was consistently valid across the groups. (...) We also employed the differential item functioning test to examine whether item responses were not biased between the different populations. Results demonstrated significant measurement non-invariance and differential item functioning. However, measurement alignment could address the non-invariance issue. Between-group comparisons of moral foundations were consistent with findings from prior research after performing the alignment. (shrink)

This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.

I defend a deontological social contract justification of punishment for free will deniers. Even if nobody has free will, a criminal justice system is fair to the people it targets if we would consent to it in a version of original position deliberation (OPD) where we assumed that we would be targeted by the justice system when the veil is raised. Even if we assumed we would be convicted of a crime, we would consent to the imprisonment of violent criminals (...) if prison conditions were better than the state of nature but deterring enough to prevent the state of nature. And even if we assumed we would be accused of a crime, we would consent to an evidentiary standard low enough to allow a conviction rate sufficient to prevent the state of nature. After explaining this justification, I contrast it with the public health quarantine justification defended by Derk Pereboom and Gregg Caruso, and argue that it provides a stronger response to the using criminals as mere means objection. (shrink)

Two-tiered mixed theories of punishment hold that legislatures should act according to consequentialism, but the judiciary should act according to retributivism. A major motivation for these theories is wanting to preserve the idea that punishment is ultimately justified on consequentialist grounds, without falling prey to the Punishing the Innocent objection. Yet this benefit is illusory. While two-tiered mixed theories successfully avoid the Punishing the Innocent objection narrowly construed, they do not successfully escape the point behind it. This is because cases (...) can be constructed with the same problems as those used to describe the classic Punishing the Innocent objection, just bumped up to the legislature. (shrink)

This paper examines the practice of using predictive systems to lengthen the prison sentences of convicted persons when the systems forecast a higher likelihood of re-offense or re-arrest. There has been much critical discussion of technologies used for sentencing, including questions of bias and opacity. However, there hasn’t been a discussion of whether this use of predictive systems makes sense in the first place. We argue that it does not by showing that there is no plausible theory of punishment that (...) supports it. (shrink)

As several scholars have argued, far from being antithetical to American values, the torture of nonwhite peoples has long been a method through which the United States has enforced (at home and abroad) a conception of what I will call “white moral citizenship." What is missing from this literature, however, is an exploration of the role that the erasure of torture, and the political and public narratives that are used to justify torture, plays in this function. -/- As I will (...) demonstrate in this article, the erasure of American torture takes at least three different but mutually reinforcing forms: erasure of the fact of torture, erasure of the experience of torture, and erasure of the victims of torture. Erasure of the fact of torture occurs when lack of education and public discussion creates widespread ignorance about the history of torture in America, as has occurred in relation to the post-9/11 torture program. Erasure of the experience of torture occurs when victims’ experiences of extreme suffering, and practices or institutions that inflict extreme suffering (such as solitary confinement), are not acknowledged as forms of torture. Erasure of the victims of torture occurs when victims are treated with indifference and even contempt, even when what they suffered is acknowledged to be torture, and their perspectives and experiences are dismissed, minimized, or ignored. -/- As I shall argue, both the use of the torture and the forms of erasure described above are essential components in the ongoing enforcement of the normative boundaries of American white moral citizenship and the myth of American exceptionalism and civilization. The repeating pattern of the use and erasure of torture leads to the ongoing toleration of practices that constitute torture and that overwhelmingly impact people of color. Until this pattern of justification and erasure is recognized and confronted, torture will continue to be embedded within American culture and institutions. (shrink)

Pessimistic empirical evidence about the reformatory and deterrent effects of punitive treatment poses a challenge for all justificatory theories of punishment. Yet, the dominant progressive view remains that punishment is required for the most serious crimes. This paper outlines an empirically sensitive prospectus for justifying punitive treatment through understanding the importance of reintegration. On this view, punishment can be viewed as a preferred alternative to the rigours of social ostracism, a common way of dealing with offenders in lieu of formal (...) criminal justice. Adopting reintegration as a primary aim encourages taking a longer view which focuses on desistance from criminality rather than only on reform at the point of release from formal punishment. The view outlined in this paper enables a vindication of reintegrative punishment even when it is not the most immediately efficient means of reforming offenders. In making this argument, I develop the modern retributive platform in criminal justice theory, identify various overlooked yet key nuances in the relationship between reintegration and reform, and argue for greater theoretical and practical attention to how the state can make the communities they serve more receptive to reintegrating offenders. (shrink)

Retributive theories of punishment argue that punishing a criminal for a crime she committed is sufficient reason for a justified and morally permissible punishment. But what about when the state gets lucky in its decision to punish? I argue that retributive theories of punishment are subject to “Gettier” style cases from epistemology. Such cases demonstrate that the state needs more than to just get lucky, and as these retributive theories of punishment stand, there is no anti-luck condition. I’ll argue that (...) Gettier-style cases demonstrate an impermissible instance of punishment, even though they meet the conditions of retributive theories of punishment. Retributive theories are, therefore, too weak. The safety condition from epistemology provides the anti-luck condition needed for permissible punishment. I argue that two forms of retributivism, rights-forfeiture and what I call standard retributivism, are both subject to Gettier-style cases. Unlike the literature on standards of proof, this paper argues that safety is a condition on punishment itself, i.e., in all nearby possible worlds, the accuser must correctly accuse the convicted for the crime they actually committed. (shrink)

Strawson's view on punishment has been either neglected or recoiled from in contemporary scholarship on ‘Freedom and Resentment’ (FR). Strawson's alleged retributivism has made his view suspect and troublesome. In this article, we first argue, against the mainstream, that the punishment passage is an indispensable part of the main argument in FR (section 1) and elucidate in what sense Strawson can be called ‘a retributivist’ (section 2). We then elaborate our own hypothesis of symbolic retribution to explain the continuum between (...) moral reactive attitudes and punishment that Strawson only adumbrates (section 3). After this justification of the punitive response to wrongdoing, we compare and contrast our specific kind of retributivist hypothesis with other positions in the so-called ‘new retributivism’ (section 4). Our hypothesis differs from other subvarieties of expressive retributivism in putting centre stage the idea of punishment as taking up a reverential stance towards the victim. (shrink)

I offer a Kantian argument for the idea that the state lacks the authority to punish neglected, impoverished citizens when they commit crimes to cope with that neglect. Given Kant’s own commitments to the value of external freedom and the state’s obligation to ensure it in Doctrine of Right, there is no reason a Kantian state can claim authority to punish an impoverished citizen while also failing in significant ways to protect her external freedom.

Since the middle of the 20th century, philosophers and legal scholars have debated the precise definition of punishment. This chapter surveys the debate, identifies six potential conditions of punishment, and critically reviews each of them: 1) the response condition, which holds that punishment must be in response to wrongdoing, 2) the culpability condition, which holds that punishment must be of a person morally responsible for wrongdoing, 3) the authority condition, which holds that punishment must be imposed by a relevant authority, (...) 4) the hard treatment condition, which holds that punishment must impose hard consequences on the punishee, 5) the intentionality condition, which holds that punishment must be intentional, and 6) the censure condition, which holds that punishment must communicate disapproval. The article argues that it is often unclear that there is a version of the condition that provides optimal lexical fit. It discusses the implications of this analysis, and concludes that there may be less reason to worry about the lack of an authoritative definition than has sometimes been assumed, but that definitional clarity remains an objective worth pursuing. (shrink)

In this paper I explore some ideas inspired by Federico Picinali’s Justice In-Between: A Study of Intermediate Criminal Verdicts. Picinali makes a case for the introduction of intermediate options in criminal trials – verdicts with consequences that are harsher than an acquittal, but not so harsh as a conviction. From a certain perspective, the absence of intermediate options in criminal trials is puzzling – out of kilter with much of our everyday decision-making and, perhaps, with the recommendations of expected utility (...) theory. I will argue, however, that the lack of intermediate options is much less puzzling when put in the context of our ordinary practices of blame and non-legal punishment. (shrink)

Ideen om at lovbrytere fortjener straff, må legges til grunn dersom vi skal kunne forstå og begrunne strafferetten i Norge og i andre rettsstater. Av noen teoretikere har dette kravet til fortjent straff blitt forstått som et negativt krav, som setter en begrensning på oppnåelsen av straffens formål. Straffen må da være «ikke ufortjent». I denne artikkelen argumenterer jeg for at en slik forståelse av fortjenesteideen er utilstrekkelig. Straff som fortjent må ansees som et positivt, selvstendig formål for strafferetten. Artikkelen (...) ser på norsk rettspraksis og lovforarbeider, og drøfter hvorfor det i norsk strafferett må legges til grunn at det er verdifullt å oppfylle lovbryterens fortjeneste. (shrink)

Punishment involves the intentional infliction of harm and suffering. Both of the most prominent families of justifications of punishment – retributivism and consequentialism – face several moral concerns that are hard to overcome. Moreover, the effectiveness of current criminal punishment methods in ensuring society’s safety is seriously undermined by empirical research. Thus, it appears to be a moral imperative for a modern and humane society to seek alternative means of administering justice. The special issue of Diametros “The Abolition of Punishment: (...) Is a Non-Punitive Criminal Justice System Ethically Justified?” was brought into life precisely to give the authors a platform for such progressive inquiries. And it is now safe to say that this platform has been put to excellent use, since Valerij Zisman, Alexander Stachurski, Giorgia Brucato, Perica Jovchevski, Sofia M. I. Jeppsson, Stephen G. Morris, Benjamin Vilhauer, John Lemos, Saul Smilansky, Elizabeth Shaw, Mirko Farina, Andrea Lavazza and Sergei Levin have presented such thought-provoking texts that they are bound to set the stage for debate in the years to come. This article is an introduction to this special issue and to the authors’ papers. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

I here consider the reasonableness of punishing future autonomous military robots. I argue that it is an engineering desideratum that these devices be responsive to moral considerations as well as human criticism and blame. Additionally, I argue that someday it will be possible to build such machines. I use these claims to respond to the no subject of punishment objection to deploying autonomous military robots, the worry being that an “accountability gap” could result if the robot committed a war crime. (...) (Sparrow 2007). But these robots will be blameworthy and morally responsible for their wrongful conduct. I then show that we have reasons to punish them based both on good effects and the impact on the robot, itself. (shrink)

There is an ethics of blaming the person who deserves blame. The Christian scriptures imply the following no-vengeance condition: a person should not vengefully overtly blame a wrongdoer even if she gives the wrongdoer the exact negative treatment that he deserves. I explicate and defend this novel condition and argue that it demands a revolution in our blaming practices. First, I explain the no-vengeance condition. Second, I argue that the no-vengeance condition is often violated. The most common species of blame (...) involves anger; anger conceptually includes a desire for vengeance; and there are many pleasures in payback. Third, I clarify that it is possible to blame non-vengefully in anger and highlight three good uses for anger in non-vengeful blame. Fourth, I offer two reasons that justify the divine command prohibiting vengeance, and I note that the Christian God is merely sufficient to make non-vengeance morally obligatory. Fifth, I defend the no-vengeance condition against four biblical objections. (shrink)

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – that even if responsibility skepticism is correct, society should maintain a responsibility‐realist/retributivist criminal justice (...) system – is generally compelling, it would not work if a majority of society were to convert, theoretically and psychologically, to responsibility skepticism. In this (highly improbable) scenario, and only in this (highly improbable) scenario, the criminal justice system would need to be reformed in such a way that it aligned with the majority's responsibility‐skeptical beliefs and attitudes. (shrink)

Michael S. Moore defends the ideas of free will and responsibility, especially in relation to criminal law, against several challenges from neuroscience. I agree with Moore that morality and the law presuppose a commonsense understanding of humans as rational agents, who make choices and act for reasons, and that to defend moral and legal responsibility, we must show that this commonsense understanding remains viable. Unlike Moore, however, I do not think that classical compatibilism, which is based on a conditional understanding (...) of the ability to do otherwise, provides a sufficiently robust account of free will, even when it is amended as Moore suggests. I argue that free will and responsibility can be defended more robustly by observing that, at the level of agency, there can be alternative possibilities and mental causation in a stronger sense than recognized by classical compatibilism, even if physical determinism is true. Moore’s arguments could thus be strengthened by embracing this compatibilist libertarian position. At the same time, I note that, although the idea of responsibility is robustly defensible, there are independent reasons for rejecting a retributivist approach to punishment. (shrink)

Scholars have compared the transitional justice processes of Colombia and South Africa in some respects, but there has yet to be a systematic moral-philosophical evaluation of them regarding how they have sought to allocate economic goods. Here I appraise the ways that South Africa and Colombia have responded to their respective historical conflicts in respect of the distribution of property and opportunities. I do so in the light of a conception of reconciliation informed by a relational ethic of harmony, a (...) value salient in the worldviews of many indigenous peoples in both Africa and South America. I argue that, given such an account of reconciliation, one of Colombia’s major proposed ways of allocating property and opportunities, whereby offenders would labour for the sake of improving victims’ socio-economic conditions, would be much better than what South Africa has done, even if Colombia has yet to put such a policy systematically into practice. (shrink)

When it comes to how to hold people responsible for wrongdoing, much of the African philosophical tradition focuses on reconciliation as a final aim. This essay expounds an interpretation of reconciliation meant to have broad appeal, and then draws out its implications for responsibility in respect to three matters. First, when it comes to criminal justice, prizing reconciliation entails that offenders should be held responsible to “clean up their own mess,” i.e., to reform their characters and compensate victims in ways (...) they find burdensome, an approach to punishment that differs from deterrence and desert theories. Second, regarding civil justice, reconciliation means that holding responsible to compensate wrongful harm means improving victims’ quality of life in ways they accept, which contrasts with a common prescription to put victims in the condition they would have been in had the wrong not occurred. Third, reconciliation can involve putting on trial more than just the direct offender, for instance family members who had been able to influence his behavior and were allied with him. The chapter provides reason to take the reconciliatory approaches seriously that will be found prima facie attractive by those from a variety of backgrounds. (shrink)

In contributions elsewhere to this volume, we considered the histories of Colombia and South Africa and how some of the values indigenous to those locales might plausibly bear on transitional justice in them. We advanced broadly relational and constructive (non-retributive) approaches to the social conflicts that had taken place there, ones that make victim compensation central. In this chapter we consider how Metz’s ubuntu-based reconciliatory approach to reparations might be relevant to Colombia in ways he did not consider, after which (...) we reflect on how the kinds of communitarian practices advanced by Bautista might apply to South Africa. We conclude that these cross-applications are revealing, pointing out how economic compensation in Colombia should plausibly be influenced by cultural factors, and how considerations of culture in South Africa call for compensation beyond economic factors. (shrink)

This article provides a critical analysis of Mark Walker’s type-token theory. This theory purports to describe, explain, and justify the mechanism by which moral and legal responsibility can be attributed to exact and complete duplicates of persons. However, Walker’s defence of the view of persons as abstract entities is met with several metaphysical objections. Alternatively, a new approach to moral and legal responsibility is developed based on principles of agency law, in which the conception of a guilty person does not (...) require identity with the person who committed the culpable act. (shrink)

In The Methods of Ethics, Henry Sidgwick maintains that resolution of the free will problem is of “limited” importance to ethics and to practical reasoning. Despite the view’s uniqueness, surprisingly little sustained attention has been paid to Sidgwick’s view. This chapter tries to remedy this situation. Part one clarifies Sidgwick’s argument for the claim that resolving the free will controversy is of only limited importance to ethics. Part two examines and tries to deflect objections to Sidgwick’s position raised by J. (...) B. Schneewind and Roger Crisp while putting forward a different objection. Part three raises objections to Sidgwick’s claim that “it is practically impossible to be guided, either in remunerating services or in punishing mischievous acts, by any other considerations than those which the Determinist interpretation of desert [and responsibility] would include”. The chapter concludes by noting that although Sidgwick’s view is not without its problems, his discussion forces us to consider which aspects of moral thinking (if any) survive the conclusion that free will is illusory. (shrink)

This is a review of Daniel Dennett and Gregg D. Caruso's Just Deserts: Debating Free Will.

This paper considers three possible ways of understanding the claim that the American criminal justice system is racist: individualist, “patterns”-based, and ideology-based theories of institutional racism. It rejects an individualist explanation of institutional racism because such an explanation fails to explain the widespread prevalence of anti-black racism in this system or indeed in the United States. It considers a “patterns” account of institutional racism, where consistent patterns of disparate racial effect mimic the structure of intentional projects of racial subjugation like (...) slavery or Jim Crow. While a “patterns” account helpfully directs attention to the effects of policies and practices that make up an institution, it does not fully explain the deep roots of anti-blackness in the criminal justice system in the United States. The paper concludes by defending an ideology-based theory of institutional racism for understanding the criminal justice system because the stereotype of the black criminal has a mutually reinforcing relationship with the patterns of disparate outcome for black people in the criminal justice system. This relationship creates a looping effect where the stereotype of the black criminal fuels the disproportionate involvement of black people in the criminal justice system, and the disproportionate representation of black people with felony records, in prisons, brutalized in police encounters, and so on reinforces the idea that black people are especially prone to criminality. Ideological approaches to racism that integrate attention to the patterns of disparate effect best explain what it means to say that the criminal justice system is racist. (shrink)

This paper advocates for a general policy of penal leniency: judges should often sentence offenders to a punishment less severe than initially preferred. The argument’s keystone is the relatively uncontroversial Minimal Invasion Principle (MIP). MIP says that when more than one course of action satisfies a state’s legitimate aim, only the least invasive is permissibly pursued. I contend that MIP applies in two common sentencing situations. In the first, all sentences within a statutorily specified range are equally proportionate. Here MIP (...) applies directly. In the second, judges reasonably believe that one of the sentences within the range is the most proportionate, but can’t identify it with any certainty. In these cases of sentencing uncertainty, judges must be indifferent between their preferred sentence and a softer one, and this indifference triggers MIP. MIP thus frequently mandates some degree of leniency. I conclude with some comments on statistical uncertainty. (shrink)

Précis of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice (2022).

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it’s unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws on (...) the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

It is often thought that traditional recidivism prediction tools used in criminal sentencing, though biased in many ways, can straightforwardly avoid one particularly pernicious type of bias: direct racial discrimination. They can avoid this by excluding race from the list of variables employed to predict recidivism. A similar approach could be taken to the design of newer, machine learning-based (ML) tools for predicting recidivism: information about race could be withheld from the ML tool during its training phase, ensuring that the (...) resulting predictive model does not use race as an explicit predictor. However, if race is correlated with measured recidivism in the training data, the ML tool may ‘learn’ a perfect proxy for race. If such a proxy is found, the exclusion of race would do nothing to weaken the correlation between risk (mis)classifications and race. Is this a problem? We argue that, on some explanations of the wrongness of discrimination, it is. On these explanations, the use of an ML tool that perfectly proxies race would (likely) be more wrong than the use of a traditional tool that imperfectly proxies race. Indeed, on some views, use of a perfect proxy for race is plausibly as wrong as explicit racial profiling. We end by drawing out four implications of our arguments. (shrink)

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.” This Article seeks to explore cases like that—cases of “natural punishment.” Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her. The Article proposes that U.S. courts follow their peers and recognize natural (...) punishment as genuine punishment for legal, specifically constitutional, purposes. Were U.S. courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction if a natural punishment has occurred or foreseeably will occur. A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States. The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment by distinguishing it from nearby notions and dispelling any association with supernatural ideas; second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings. -/- As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served. The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial. The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence. Seeing the time in detention as an instance of natural punishment resolves the Mystery. (shrink)

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration. This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs. Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically. This essay fills that (...) void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes. On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society. (shrink)

Research has probed the consequences of providing people with different types of information regarding why a person possesses a certain characteristic. However, this work has largely examined the consequences of different information subsets (e.g., information focusing on internal versus societal causes). Less work has compared several types of information within the same paradigm. Using the legal system as an example domain, we provided children (N=198 6- to 8-year-olds) with several types of information—including information highlighting internal moral character, internal biological factors, (...) behavioral factors, and societal factors—about why a specific outcome (incarceration) might occur. We examined how such language shaped children’s attitudes. In Study 1, children reported the most positivity toward people who were incarcerated for societal reasons and the least positivity toward people who were incarcerated for their internal moral character; attitudes linked with behavioral information fell between these extremes. Studies 2a-2b suggested that Study 1’s effects could not be fully explained by participants drawing different about individuals in Study 1. Study 3 replicated Study 1’s results and showed that information linking incarceration with internal biological factors led to more positivity than information linking incarceration with internal moral character. Finally, Study 4 suggested that the patterns found in Studies 1 and 3 generalize to non-punitive contexts. Moreover, Study 4 found that the effects in Studies 1 and 3 emerged regardless of whether information was communicated via explanations or descriptions. These results demonstrate that how we express our beliefs about social phenomena shape the realities in which others live. (shrink)

When someone is prepunished, they are punished for a predicted crime they will or would commit. I argue that cases of prepunishment universally assumed to be merely hypothetical—including those in Philip K. Dick’s “The Minority Report”— are equivalent to some instances of the real-life punishment of attempt offenses. This conclusion puts pressure in two directions. If prepunishment is morally impermissible, as philosophers argue, then this calls for amendments to criminal justice theory and practice. At the same time, if prepunishment is (...) not imaginary, then the philosophers who reject it cannot claim that their view is supported by common sense. (shrink)

I argue that legal punishment is morally wrong because it’s too morally risky. I first briefly explain how my argument differs from similar ones in the philosophical literature on legal punishment. Then I explain why legal punishment is morally risky, argue that it’s too morally risky, and discuss objections. In a nutshell, my argument goes as follows. Legal punishment is wrong because we can never sufficiently reduce the risk of doing wrong when we legally punish people. We can never sufficiently (...) reduce this risk because wrongful punishment is much worse than wrongful non-punishment and because punishment’s permissibility depends on the answers to a variety of difficult philosophical questions about which we’re fallible. (shrink)

On varsin yleisesti hyväksyttyä, että rangaistuksen ilmaisullinen tehtävä - eli se, että se ilmaisee yhteisön paheksuntaa - on yksi sen ominaispiirre. Viime aikoina on kuitenkin esitetty myös kunnianhimoisempia väitteitä siitä, että rangaistuksen voisi oikeuttaa sen ilmaisullisella tehtävällä. Nämä näkemykset ovat myös saaneet runsaasti kritiikkiä. Tässä esseessä kehittelen aiemmin muotoilemaani versiota ekspressiivisestä rangaistusteoriasta, jonka mukaan asenteiden toiminnallinen ilmaisu rankaisemalla on oikeutettua siksi, että muuten rikoksen uhrilla ei ole hänelle kuuluvaa oikeudenhaltijan statusta. Jos ihmisen oikeuksia voi loukata rangaistuksetta, ne jäävät moraaliseksi ihanteeksi (...) eivätkä toteudu sosiaalisina tosiasioina. Esitän, että tämä näkemys välttää ainakin useimmat muille ilmaisuteorioille esitetyt haasteet. (shrink)

Adherents to reconciliation, restorative justice, and related approaches to dealing with social conflict are well known for seeking to minimize punishment, in favor of offenders hearing out victims, making an apology, and effecting compensation for wrongful harm as well as victims forgiving offenders and accepting their reintegration into society. In contrast, I maintain that social reconciliation and similar concepts in fact characteristically require punishment but do not require forgiveness. I argue that a reconciliatory response to crime that includes punitive disavowal (...) but not necessarily forgiveness is supported by an analogy with resolving two-person conflict and by relational facets of human dignity. I also specify a novel account of the type of penalty that is justified by reconciliation, namely, burdensome labor that is likely to foster moral reform on the part of wrongdoers and to compensate their victims, which would serve neither retributive nor deterrent functions. I illustrate this conception of punishment in contexts that include having cheated on an exam at a university, engaged in criminal behavior such as robbery, and committed atrocities during large-scale social conflict. (shrink)

I propose a theory of punishment that is unfamiliar in the West, according to which the state normally ought to have offenders reform their characters and compensate their victims in ways the offenders find burdensome, thereby disavowing the crime and tending to foster improved relationships between offenders, their victims, and the broader society. I begin by indicating how this theory draws on under-appreciated ideas about reconciliation from the Global South, and especially sub-Saharan Africa, and is distinct from the protection and (...) retribution theories that have dominated the Western philosophy of punishment for about 250 years. Then I argue that it neatly avoids objections to them and is prima facie plausible in its own right. I conclude that this reconciliation theory of state punishment should be taken seriously by philosophers of law and policy makers. (shrink)

When it comes to the question of how much the state ought to punish a given offender, the standard understanding of the desert theory for centuries has been that it should give him a penalty proportionate to his offense, that is, an amount of punishment that fits the severity of his crime. In this article, part of a special issue on the geometry of desert, we maintain that a desert theorist is not conceptually or otherwise required to hold a proportionality (...) requirement. We show that there is logical space for at least two other, non-proportionate ways of meting out deserved penalties, and we also argue that they have important advantages relative to the dominant, proportionality approach. (shrink)

El trabajo consiste en una elucidación de los elementos que conforman el concepto de pena natural (poena naturalis) en el Derecho penal. Se puede caracterizar la pena natural como el daño o sufrimiento que recae sobre el autor de un delito, producto de la comisión del mismo, que debe ser descontado de la pena legal que ha de aplicársele. Si bien existe un mínimo acuerdo sobre esto, tanto en la jurisprudencia como en la doctrina penal se observan serios desacuerdos acerca (...) de los requisitos que se deben cumplir para reconocer que se está frente a una pena natural. Para elucidar los elementos, se utilizará el constructivismo conceptual de Ronald Dworkin, a fin de describir el desacuerdo y sus implicancias, reconocer los elementos principales de la pena natural y justificarlos bajo su mejor luz moral. ABSTRACT This study focuses on the clarification of the conceptual elements of poena naturalis in criminal law settings. The poena naturalis is the damage or suffering that falls on the convict for its commission. This damage must be deducted from the poena forensis to be applied. Although there is a minimum agreement about the concept of poena naturalis, in the jurisprudence and among legal scholars, there are serious disagreements about the elements of poena naturalis. To elucidate the elements, I will adopt Ronald Dworkin’s conceptual constructivism to describe the disagreement and its implications. At last, I will justify the main elements of the poena naturalis by their best moral light. (shrink)

On the moral model of addiction, addicts are morally responsible and blameworthy for their addictive behaviours. The model is sometimes resisted on the grounds that blaming addicts is incompatible with treating addiction in a compassionate and non-punitive way. I argue the moral model is consistent with addressing addiction compassionately and non-punitively and better accounts for both the role of addicts’ agency in the recovery process. If an addict is responsible for their addictive behaviours, and that behaviour is in some way (...) bad or wrong, then that addict is blameworthy. If not, then they are not. But, if their addictive behaviour or behaviour which contributes to and perpetuates their condition of addiction, is not bad or wrong, then addiction is not an issue of moral concern. Addicts are blameworthy, but attributions of blame need not be followed by harsh treatment or punishment. Because blame and harsh treatment or punishment can be separated, there is no good reason to reject the moral model of addiction. (shrink)

What effects are produced in an encounter between what Gilles Deleuze calls Spinoza’s ‘practical philosophy’ and abolition? Closely following Deleuze’s account of Spinoza, this essay moves from the reifying and weakening punitive moralism of carceral state thought towards a joyful materialist abolitionist ethic. It starts with the three theses for which, Deleuze argues, Spinoza was denounced in his own lifetime: materialism (devaluation of consciousness), immoralism (devaluation of all values) and atheism (devaluation of the sad passions). From these three, it derives (...) three parallel abolitionist theses: (1) Spinozan materialism undermines the reifications of carceral state thought; (2) Spinozan ethics undermines the punitivism of the carceral state; and (3) Spinozan joy is inversely proportional to the power of the carceral state. While Spinoza’s corpus may not give us an adequate account of the complex dynamics of the carceral state and racial capitalism today, this essay argues that in the infinite streams of the Ethics we nonetheless find some vital strategies through which we might compose an anomalous alliance between this condemned philosopher and abolition. (shrink)

In this paper, I argue that one approach to normative political theory, namely contextualism, can benefit from a specific kind of historical inquiry, namely genealogy, because the latter provides a solution to a deep-seated problem for the former. This problem consists in a lack of critical distance and originates from the justificatory role that contextualist approaches attribute to contextual facts. I compare two approaches to genealogical reconstruction, namely the historiographical method pioneered by Foucault and the hybrid method of pragmatic genealogy (...) as practiced by Bernard Williams, arguing that they both ensure an increase in critical distance while preserving contextualism’s distinctiveness. I also show, however, that only the latter provides normative action-guidance and can thus assist the contextualist theorist in the crucial task of discerning how far certain contextual facts deserve their justificatory role. I prove this point by showing how a pragmatic genealogy of the practice of punishment can inform the contextualist’s reflection about the role this practice should play in a transitional scenario, i.e. in the set of circumstances societies go through in the aftermath of large-scale violence and human rights violations. (shrink)

Automated decision making for sentencing is the use of a software algorithm to analyse a convicted offender’s case and deliver a sentence. This chapter reviews the moral arguments for and against employing automated decision making for sentencing and finds that its use is in principle morally permissible. Specifically, it argues that well-designed automated decision making for sentencing will better approximate the just sentence than human sentencers. Moreover, it dismisses common concerns about transparency, privacy and bias as unpersuasive or inapplicable. The (...) chapter also notes that moral disagreement about theories of just sentencing are plausibly resolved by applying the principle of maximising expected moral choiceworthiness, and that automated decision making is better suited to the resulting ensemble model. Finally, the chapter considers the challenge posed by penal populism. The dispiriting conclusion is that although it is in theory morally desirable to use automated decision-making for criminal sentencing, it may well be the case that we ought not to try. (shrink)

This chapter offers non-retributive, broadly Kantian justifications of punishment and remorse which can be endorsed by free will skeptics. We lose our grip on some Kantian ideas if we become skeptical about free will, but we can preserve some important ones which can do valuable work for free will skeptics. The justification of punishment presented here has consequentialist features but is deontologically constrained by our duty to avoid using others as mere means. It draws on a modified Rawlsian original position (...) in which we assume we are just as likely to be among the punished when the veil of ignorance is raised as we are to be among those protected by the institution of punishment. The justification of remorse presented here is care-based, and draws on the value of sympathizing with people we have wronged, which has a Kantian ground in the duty to take others’ ends as our own. (shrink)

This chapter offers a proceduralist argument against capital punishment. More specifically, it contends that the possibility of irrevocable mistakes precludes the just administration of the death penalty. At stake is a principle of political morality: legal institutions must strive to remedy their mistakes and to compensate those who suffer from wrongful sanctions. The incompatibility of remedy and execution is the crux of the irrevocability argument: because the wrongly executed cannot enjoy the morally required compensation, execution is impermissible. Along with defending (...) his key premises, Yost explains the complicated role that sentencing uncertainty plays in the argument. He concludes by noting some of the flaws in substantive consequentialist and retributivist justifications of capital punishment. (shrink)

Drawing upon empirical studies of racial discrimination dating back to the 1940’s, the Movement for Black Lives platform calls for the abolition of capital punishment. Our purpose here is to defend the Movement’s call for death penalty abolition in terms congruent with its claim that the death penalty in the U.S. is a “racist practice” that “devalues Black lives.” We first sketch the jurisprudential history of race and capital punishment in the U.S., wherein courts have occasionally expressed worries about racial (...) injustice but have usually taken such evidence to warrant reform but not outright abolition. We argue that the racial discrimination at issue flows in significant part from implicit biases concerning race, criminality, and violence, which do not fit comfortably within the picture of racial bias advanced by the courts. The case for abolition, we contend, rests on Black Americans as a class (not merely those who interact with the criminal justice system as capital defendants or as murder victims) being subject to such bias and thereby not being accorded equal status under the law. (shrink)

This paper targets a nearly universal assumption in the philosophical literature: that prepunishment is unproblematic for consequentialists. Prepunishment threats do not deter, as deterrence is traditionally conceived. In fact, a pure prepunishment legal system would tend to increase the criminal disposition of the grudgingly compliant. This is a serious problem since, from many perspectives, but especially from a consequentialist one, a primary purpose of punishment is deterrence. I analyze the decision theory behind pre and postpunishments, which helps clarify both what (...) deterrence is and how it operates in consequentialist justifications of punishment. I end by sketching a road map for the future of prepunishment as artificial intelligence and other technological advances generate increasing possibilities for its use. (shrink)

Many philosophers think that punishment is intentionally harmful and that this makes it especially hard to morally justify. Explanations for the latter intuition often say questionable things about the moral significance of the intent to harm. I argue that there’s a better way to explain this intuition.