This article formulates a deterrence theory of punishment based on Lockean premises. Following authors such as Warren Quinn and Daniel Farrell, it is claimed that a justification for the right to punish must be built upon the recognition of the importance of a right to issue retaliatory threats. Contrary to those authors, however, the articulation of such recognition is made within a Lockean theory of individual rights. This allows us to appreciate the specific role deterrence has in a plausible conception (...) of punishment, and thus address certain objections that have been formulated recently, especially by David Boonin. (shrink)

When Dominique Strauss-Kahn, then head of the IMF, was arrested on charges of sexual assault arising from events that were alleged to have occurred during his stay in an up-market hotel in New York, a sizeable portion of French public opinion was outraged - not by the possibility that a well-connected and widely-admired politician had assaulted an immigrant hotel worker, but by the way in which the accused had been treated by the American authorities. I shall argue that in one (...) relatively minor respect, Strauss-Kahn’s defenders were correct. They were correct to argue that the parading of Strauss-Kahn before the press, in handcuffs - the so-called perp walk - constituted a form of punishment; and thus that it contravened the principle that criminal punishments should only be administered after a fair trial. So-called ‘expressive’ theorists of punishment hold that a form of harsh treatment can only constitute a form of punishment if it has an expressive role. Within the expressive family, we can distinguish between views on which the primary target of the communication to be the society of which either offender, or victim, or both are members—what I call ‘Denunciatory Views’, and views which take the principle target of penal communication to be the offender—such as Antony Duff’s Communicative View. I shall argue that on both a minimal account of punishment and on either kind of expressive view, ‘perp walks’ are a form of punishment. (shrink)

A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution —holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of (...) his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located. (shrink)

According to deterrence justifications of legal punishment, legal punishment is justified at least in part because it deters offenses. These justifications rely on important empirical assumptions, e.g., that non-punitive enforcement can't deter or that it can't deter enough. I’ll challenge these assumptions and argue that extant deterrence justifications of legal punishment fail. In the process, I examine contemporary deterrence research and argue that it provides no support for these justifications.

I’ll raise a problem for Retributivism, the view that legal punishment is justified on the basis of desert. I’ll focus primarily on Mitchell Berman’s recent defense of the view. He gives one of the most sophisticated and careful statements of it. And his argument is representative, so the problem I’ll raise for it will apply to other versions of Retributivism. His insights about justification also help to make the problem particularly obvious. I’ll also show how the problem extends to non-retributive (...) justifications of punishment. I’ll argue that Berman’s argument makes a questionable assumption about the standard of justification that justifications of punishment must meet to be successful. If we think about what it takes to justify punishment and reflect on the intuitions that retributivists appeal to, it turns out that the intuitions aren’t obviously up to the task. (shrink)

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for the law (...) to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution. (shrink)

This paper considers the applicability of expressive theories of punishment to the punishment of corporate entities. The author argues that although arguments which suggest that the denunciatory account is superior to a communicative account in paradigmatic cases of punishment cannot be transferred straightforwardly to cover this kind of case, there are other reasons, connected with the different attitudes we have to regret and remorse in individual and collective cases, for preferring a communicative to a denunciatory account here.

The doctrine of penal substitution claims that it was good (or required) for God to punish in response to human sin, and that Christ received this punishment in our stead. I argue that this doctrine’s central factual claim—that Christ was punished by God—is mistaken. In order to punish someone, one must at least believe the recipient is responsible for an offense. But God surely did not believe the innocent Christ was responsible for an offense, let alone the offense of human (...) sin. So, the central factual claim is mistaken. In the final section, I show that this critique of penal substitution does not apply to the closely-related Anselmian satisfaction theory. (shrink)

Recently, David Boonin has put forward several objections to Carlos S. Nino's 'Consensual Theory of Punishment'. In this paper I will defend Nino against the 'explicit denial objection'. I will discuss whether Boonin's interpretation of Nino as a tacit consent theorist is right. I will argue that the offender's consent is neither tacit nor express, but a special category of implicit consent. Further, for Nino the legal-normative consequences of an act (of crime) are 'irrevocable', i.e. one cannot (expressly and successfully) (...) deny liability to them. I will suggest an explanation for Nino's irrevocability claim. (shrink)

Punishment involves deliberating harming individuals. How, then, if at all, is it to be justified? This, the first of three papers on the philosophy of punishment (see also 'Punishment: Nonconsequentialism' and 'Punishment: The Future'), examines attempts to justify the practice or institution according to its consequences. One claim is that punishment reduces crime, and hence the resulting harms. Another is that punishment functions to rehabilitate offenders. A third claim is that punishment (or some forms of punishment) can serve to make (...) restitution to victims, and a fourth is that it can strengthen social values. The paper examines these claims, and finally considers pluralist theories which combine retributive and harm-reductive or utilitarian considerations. (Retributive theories are examined in their own right in 'Punishment: Nonconsequentialism'.). (shrink)

The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime deserving of punishment, (...) since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment. (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)

I assess the force of a justification for post-conflict amnesties that is aimed at overcoming the most common objection to their conferral: that they entail retributive injustice. According to this justification, retributivists ought to consider amnesties to be justified because they are analogous to plea bargains, and because retributivists need not consider plea bargains to be unacceptable. I argue with reference to the 2001 Timor-Leste immunity scheme that amnesties conditional upon perpetrators’ not only admitting guilt and confessing but also making (...) reparations may count as plea bargains. I show that plea bargains providing sentence discounts in return for guilty pleas, allowing offenders who accept these bargains to be punished in the absence of trials, and plea bargains offering leniency in punishment in exchange for offenders pleading guilty and providing testimony or other incriminating evidence against superiors or accomplices, may be consonant with versions of retributivism that allow less than the full measure of an offender’s deserved punishment to be exacted where necessary to maximise or expand deserved punishment overall. I argue that amnesties that are also plea bargains may be considered justified by plea bargain-defending retributivists. So too may amnesties conferred in exchange for perpetrators’ admitting guilt and providing incriminating testimony or other evidence against their superiors and accomplices, some of which count as plea bargains, since they too could in some cases maximise or expand deserved punishment. (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)

Active and targeted reforms at the local and state levels have had success reducing youth incarceration rates. While most agree the work is not done, reform of the youth incarceration system has had important successes. At the same time, activists and advocates have increasingly rejected the goal of reforming youth prisons in favor of abolishing them. I outline some objections to prominent abolitionist arguments. Specifically, I show why arguments that focus on the racist historical origins of the incarceration system, structural (...) injustices within that system, or the inefficiency or harms of the current system justify reform of youth imprisonment practices, not complete elimination of them. By advancing these critiques, I do not claim to show that the reformist perspective is superior to the abolitionist one. Instead, I aim to identify an argumentative burden that abolitionists must address if they are to give reformers good reason to become abolitionists. (shrink)

Lisa Tessman (2016: 164) recounts the case of a Jewish mother, running from Nazis, who faced a terrible choice. She could (a) drown her infant, or (b) accept the virtual certainty that her baby’s cries would doom the refugee group she was fleeing with. Given those options, (b) is worse. If the whole group is discovered, many will die, including the infant. Still, preemptively drowning a baby—indeed one’s own baby—is a terrible act. To make sense of cases like this, Tessman (...) turns to the concept of moral failure: an act that violates an important moral value such that the loss cannot be fully redeemed by gains elsewhere. I will argue that criminal justice needs a moral framework like Tessman’s. It needs to make sense of the fact that some options are genuinely better than others, without letting honorifics like ‘justice’ obscure the equally important fact the best available option might be terrible. More specifically, I will argue that when punishment involves prison, as it often does, it is a moral failure. It can be justified only in the sense that preemptively drowning an infant can be justified: like the fleeing mother, society might on some terrible occasions find itself with no better alternative. (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)

One prominent argument in international law and religious thought for abolishing capital punishment is that it violates individuals’ right to life. Notably, this _right-to-life argument_ emerged from normative and legal frameworks that recognize deadly force against aggressors as justified when necessary to stop their unjust threat of grave harm. Can capital punishment be necessary in this sense—and thus justified defensive killing? If so, the right-to-life argument would have to admit certain exceptions where executions are justified. Drawing on work by Hugo (...) Bedau, I identify a thought experiment where executions are justified defensive killing but explain why they cannot be in our world. A state’s obligations to its prisoners include the _obligation to use nonlethal incapacitation_ (ONI), which applies as long as prisoners pose no imminent threat. ONI precludes executions for reasons of future dangerousness. By subjecting the right-to-life argument to closer scrutiny, this article ultimately places it on firmer ground. (shrink)

The present paper constitutes a critique of David Alm’s article “Punishment, Consent and Value”, in which it is argued that the consensual theory of punishment defended by C. S. Nino is false. Whilst Alm believes that this theory is grounded on an inadequate model of normative relations, here I will defend the hypothesis that such an assessment derives from an insufficient conception of human value and respect.

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)

There is a concern that the widespread deployment of autonomous machines will open up a number of ‘responsibility gaps’ throughout society. Various articulations of such techno-responsibility gaps have been proposed over the years, along with several potential solutions. Most of these solutions focus on ‘plugging’ or ‘dissolving’ the gaps. This paper offers an alternative perspective. It argues that techno-responsibility gaps are, sometimes, to be welcomed and that one of the advantages of autonomous machines is that they enable us to embrace (...) certain kinds of responsibility gap. The argument is based on the idea that human morality is often tragic. We frequently confront situations in which competing moral considerations pull in different directions and it is impossible to perfectly balance these considerations. This heightens the burden of responsibility associated with our choices. We cope with the tragedy of moral choice in different ways. Sometimes we delude ourselves into thinking the choices we make were not tragic ; sometimes we delegate the tragic choice to others ; sometimes we make the choice ourselves and bear the psychological consequences. Each of these strategies has its benefits and costs. One potential advantage of autonomous machines is that they enable a reduced cost form of delegation. However, we only gain the advantage of this reduced cost if we accept that some techno-responsibility gaps are virtuous. (shrink)

Philosophy Compass, Volume 17, Issue 2, February 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)

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)

The late Kenyan Prof. H. Odera Oruka (1944-1995), from his base in the Department of Philosophy and Religious Studies at the University of Nairobi, contributed significantly to the growth of contemporary African philosophy, and helped locate African philosophy within the global philosophical discourse. His work in areas such as normative and applied ethics, political philosophy, epistemology, and, most notably, philosophic sagacity, continues to play a pivotal role in the current discourse on African philosophy. Prof. Oruka was also one of the (...) founders of Thought and Practice: A Journal of the Philosophical Association of Kenya. -/- The chapters in this volume examine various aspects of Oruka’s prolific contribution to philosophy in general, and to African philosophy in particular. Earlier versions of the chapters were presented at the three-day Odera Oruka International Symposium held from 19th to 21st November 2013, organised by the Department of Philosophy and Religious Studies at the University of Nairobi in collaboration with the Goethe Institute. (shrink)

This paper focuses on evaluating Odera Oruka’s role as an expert witness in customary law for the Luo community during the Nairobi, Kenya-based trial in 1987 to decide on the place of the burial of S.M. Otieno. During that trial, an understanding of Luo burial and widow guardianship (ter) practices was essential. Odera Oruka described the practices carefully and defended them against misunderstanding and stereotype. He revisited related topics in several delivered papers, published articles, and even interviews and columns in (...) the Kenyan newspapers. The paper will raise the questions: How does Odera Oruka’s role as expert on Luo customs fit in with his sage philosophy project? In his testimony at the trial and subsequent public addresses and published work, does he accomplish two important goals, the first being defending African traditions against prejudice and anti-African bias, and secondly, does he champion reform of traditions when reform is needed? And, can Odera Oruka’s participation in the famous trial avoid seeming ethnic chauvinism and marginalization of women? My conclusion is that he achieves the first goal, but some problems remain in the achievement of the other goals. While he often asserted the need to evaluate traditions and to jettison those that have become unhelpful, in this context he evaluated traditions so strongly that the need for evaluation and possible change was muted. (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.

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)

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)

In the dissertation, I consider the permissibility of a familiar set of responses to wrongdoing in our interpersonal relationships—those responses that constitute the imposition of some cost upon the wrongdoer. Some of these responses are, I argue, properly considered punishing, and some of these instances of punishing are in turn permissible. Punishment as I understand it is a broad phenomenon, common in and to all human relationships, and not exclusively or even primarily the domain of the state. Personal interactions expressive (...) of wrong-reactive attitudes like disappointment, anger, and guilt will sometimes constitute punishment so understood. I consider childhood punishment, self-punishment, and punishment between friends, concluding that punishment in the context of our personal relationships may sometimes be appropriate where undertaken not for the sake of deterrence nor of retributive justice, but for the sake of the aims constitutive of the relationship in which it occurs. (shrink)

In recent decades, there has been growing interest among philosophers in what the various Buddhist traditions have said, can say, and should say, in response to the traditional problem of free will. This article investigates the relationship between Buddhist philosophy and the historical problem of free will. It begins by critically examining Rick Repetti's Buddhism, Meditation, and Free Will (2019), in which he argues for a conception of “agentless agency” and defends a view he calls “Buddhist soft compatibilism.” It then (...) turns to a more wide‐ranging discussion of Buddhism and free will—one that foregrounds Buddhist ethics and takes seriously what the various Buddhist traditions have said about desert, punishment, and the reactive attitudes of resentment, indignation, and moral anger. The article aims to show that, not only is Buddhism best conceived as endorsing a kind of free will skepticism, Buddhist ethics can provide a helpful guide to living without basic desert moral responsibility and free will. (shrink)

Philosophers have highlighted a dilemma for the criminal law. Unjust, racist policies in the United States have produced conditions in which the dispossessed are more likely to commit crime. This complicity undermines the standing of the state to blame their offenses. Nevertheless, the state has reason to punish those crimes in order to deter future offenses. Tommie Shelby proposes a way out of this dilemma. He separates the state’s right to condemn from its right to punish. I raise doubts about (...) Shelby’s proposed resolution. So long as punishment is widely and reasonably understood to condemn crime, Shelby’s proposal does not resolve the dilemma. Moreover, there is reason to think the blaming aspect of punishment plays a role in the justification of its hard treatment. I conclude by considering some other ways out of the dilemma, focusing especially on how the United States might take responsibility for its complicity. (shrink)

This paper defends an account of forgiveness that is sensitive to recent work on anger. Like others, we claim anger involves an appraisal, namely that someone has done something wrong. But, we add, anger has two further functions. First, anger communicates to the wrongdoer that her act has been appraised as wrong and demands she feel guilty. This function enables us to explain why apologies make it reasonable to forgo anger and forgive. Second, anger sanctions the wrongdoer for what she (...) has done. This function allows us to explore the moral status of forgiveness, including why forgiveness is typically elective. (shrink)

This paper continues a debate about the following claim: an agent punishes someone only if she aims to harm him. In a series of papers, Bill Wringe argues that this claim is false, I criticize his arguments, and he replies. Here, I argue that his reply fails.

It is often held that people have a moral right to believe and say whatever they want. For instance, one might claim that they have a right to believe racist things as long as they keep those thoughts to themselves. Or, one might claim that they have a right to pursue any philosophical question they want as long as they do so with a civil tone. In this paper I object to those claims and argue that no one has such (...) unlimited moral rights. In Part 1 I explore the value of the freedoms of thought and expression. In Part 2 I argue against the unlimited moral right to free expression, focusing in particular on the special obligations and moral constraints that obtain for academics. In Part 3 I argue against the unlimited moral right to free thought. (shrink)

This article analyses proportionality as a potential element of a theory of morally justified surveillance, and sets out a teleological account. It draws on conceptions in criminal justice ethics and just war theory, defines teleological proportionality in the context of surveillance, and sketches some of the central values likely to go into the consideration. It then explores some of the ways in which deontologists might want to modify the account and illustrates the difficulties of doing so. Having set out the (...) account, however, it considers whether the proportionality condition is necessary to a theory of morally justified surveillance. The article concludes that we need and should apply only a necessity condition, but notes that proportionality considerations may retain some use in in practice, as a form of coarse‐grained filter applied before assessing necessity when deliberating the permissibility of potential forms of surveillance. (shrink)

How should we punish criminal offenders? One prima facie attractive punishment is administering a mandatory neurointervention—interventions that exert a physical, chemical or biological effect on the brain in order to diminish the likelihood of some forms of criminal offending. While testosterone-lowering drugs have long been used in European and US jurisdictions on sex offenders, it has been suggested that advances in neuroscience raise the possibility of treating a broader range of offenders in the future. Neurointerventions could be a cheaper, and (...) more effective method of punishment. They could also be more humane. Nevertheless, in this paper we provide an argument against the use of mandatory neurointerventions on offenders. We argue that neurointerventions inflict a significant harm on an offender that render them a morally objectionable form of punishment in a respect that incarceration is not. Namely, it constitutes an objectionable interference with the offender’s mental states. However, it might be thought that incarceration also involves an equally objectionable interference with the offender’s mental states. We show that even if it were the case that the offender is harmed to the same extent in the same respect, it does not follow that the harms are morally equivalent. We argue that if one holds that intended harm is more difficult to justify than harm that is unintended but merely foreseen, this means neurointerventions could be morally objectionable in a significant respect that incarceration is not. (shrink)

Some philosophers (Duff, Hampton) conceive of punishment as a way of communicating a message to the punished and argue that this communicative function justifies the harm of punishment. I object to communicative theories because punishment seems intuitively justified in cases in which it fails as a method of communication. Punishment fails as communication when the punished ignores the intended message or fails to understand it. Among those most likely to ignore or fail to understand the message of punishment are the (...) most hardened criminals, whom we typically think are appropriate targets of punishment. I suggest that an alternative justificatory strategy, one that focuses not on the successful receipt of the message of punishment by the wrongdoer but on the expression of condemnation by the community, is not subject to the same worry. The norms of successful expression are more easily met than those of communication, so that expressing condemnation toward a criminal might be justified even if he is unreceptive in the face of the expression. (shrink)

Many philosophers think that, when someone deserves something, it’s intrinsically good that she get it or there’s a non-instrumental reason to give it to her. Retributivists who try to justify punishment by appealing to claims about what people deserve typically assume this view or views that entail it. In this paper, I present evidence that many people have intuitions that are inconsistent with this view. And I argue that this poses a serious challenge to retributivist arguments that appeal to desert.

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

Skepticism about moral responsibility, or what is more commonly referred to as moral responsibility skepticism, refers to a family of views that all take seriously the possibility that human beings are never morally responsible for their actions in a particular but pervasive sense. This sense is typically set apart by the notion of basic desert and is defined in terms of the control in action needed for an agent to be truly deserving of blame and praise. Some moral responsibility skeptics (...) wholly reject this notion of moral responsibility because they believe it to be incoherent or impossible. Others maintain that, though possible, our best philosophical and scientific theories about the world provide strong and compelling reasons for adopting skepticism about moral responsibility. What all varieties of moral responsibility skepticism share, however, is the belief that the justification needed to ground basic desert moral responsibility and the practices associated with it—such as backward-looking praise and blame, punishment and reward (including retributive punishment), and the reactive attitudes of resentment and indignation—is not met. Versions of moral responsibility skepticism have historically been defended by Spinoza, Voltaire, Diderot, d’Holbach, Priestley, Schopenhauer, Nietzsche, Clarence Darrow, B.F. Skinner, and Paul Edwards, and more recently by Galen Strawson, Derk Pereboom, Bruce Waller, Neil Levy, Tamler Sommers, and Gregg D. Caruso. -/- Critics of these views tend to focus both on the arguments for skepticism about moral responsibility and on the implications of such views. They worry that adopting such a view would have dire consequences for our interpersonal relationships, society, morality, meaning, and the law. They fear, for instance, that relinquishing belief in moral responsibility would undermine morality, leave us unable to adequately deal with criminal behavior, increase anti-social conduct, and destroy meaning in life. Optimistic skeptics, however, respond by arguing that life without free will and basic desert moral responsibility would not be as destructive as many people believe. These optimistic skeptics argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for instance, would not be threatened. They further maintain that morality and moral judgments would remain intact. And although retributivism and severe punishment, such as the death penalty, would be ruled out, they argue that the imposition of sanctions could serve purposes other than the punishment of the guilty—e.g., it can also be justified by its role in incapacitating, rehabilitating, and deterring offenders. (shrink)

In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and constrained (...) by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)

Many philosophers think that an agent punishes a subject only if the agent aims to harm the subject. Bill Wringe has recently argued against this claim. I show that his arguments fail.

A shared presumption among practice-dependent theorists is that a principle of justice is dependent on the function or aim of the practice to which it is supposed to be applied. In recent contributions to this debate, the condition of epistemic uncertainty plays a significant role for motivating and justifying a practice-dependent view. This paper analyses the role of epistemic uncertainty in justifying a practice-dependent approach. We see two kinds of epistemic uncertainty allegedly playing this justificatory role. What we call ‘normative (...) epistemic uncertainty’ emerges from dealing with the problem of value uncertainty in justifying applied principles when our higher-level principles are open-textured, that is, when their content is too vague or unclear to generate determinate prescriptions. What we call ‘descriptive epistemic uncertainty’ emerges from dealing with uncertainty about empirical facts, such as the problem of moral assurance, that is, the problem that the requirements of justice cannot go beyond arrangements that we can know with reasonable confidence that we can jointly establish and maintain. In both cases, practice-dependent theorists conclude that the condition of epistemic uncertainty justifies a practice-dependent approach, which puts certain restrictions on theorizing regulative principles and has wide-ranging practical implications for the scope of justice. Our claim in this paper is that neither kind of epistemic uncertainty justifies a practice-dependent approach. (shrink)

This thesis provides an ethical analysis of imprisonment as a mode of punishment. Consisting in an introduction and four papers the thesis addresses several important questions concerning imprisonment from a number of different perspectives and theoretical starting points. One overall conclusion of this thesis is that imprisonment, as a mode of punishment, deserves more attention from moral and legal philosophers. It is also concluded that a more complete ethical assessment of prison conditions and prison management requires a broader focus. It (...) must include an explicit discussion of both how imprisonment directly affects prison inmates and its negative side-effects on third parties. Another conclusion is that ethical discussions on prison conditions should not be too easily reduced to a question about how harsh or lenient is should be. Paper 1 argues that prisoners have a right to privacy. It is argued that respect for inmates’ privacy is related to respect for them as moral agents. Consequently, respect for inmates’ privacy is called for by different established philosophical theories about the justification of legal punishment. Practical implications of this argument are discussed and it is argued that invasion of privacy should be minimized to the greatest extent possible, without compromising other important values or the rights to safety and security. It is also proposed that respect for privacy should be part of the objective of creating and upholding a secure environment. Paper 2 discusses whether the collateral harm of imprisonment to the children and other close family members of prison inmates may give rise to special moral obligations towards them. Several collateral harms, including decreased psychological wellbeing, financial costs, loss of economic opportunities, and intrusion and control over their private lives, are identified. Two perspectives in moral philosophy, consequentialism and deontology, are then applied in order to assess whether these harms are permissible. It is argued that from either perspective it is hard to defend the claim that allowing for these harms are morally permissible. Consequently, imprisonment should be used only as a last resort. Where it is deemed necessary, it gives rise to special moral obligations. Using the notion of residual obligation, these obligations are then categorized and clarified. Paper 3 focuses on an argument that has figured in the philosophical debate on felon disenfranchisement. This argument states that as a matter of democratic self-determination, a legitimate democratic collective has the collective right to decide whether to disenfranchise felons as a way of defining their political identity. Yet, such a collective’s right to self-determination is limited, since the choice to disenfranchise anyone must be connected to normative considerations of political significance. This paper defends this argument against three charges that has been raised to it. In doing so it also explores under what circumstances felon disenfranchisement can be permissible. Paper 4 explores the question of whether prison inmates suffering from ADHD should be administered psychopharmacological intervention for their condition. The theoretical starting point for the discussion is the communicative theory of punishment, which understands criminal punishment as a form of secular penance. Viewed through the lens of the communicative theory it is argued that the provision of pharmacological treatment to offenders with ADHD need not necessarily be conceived of as an alternative to punishment, but as an aid to achieving the penological ends of secular penance. Thus, in this view offenders diagnosed with ADHD should have the option to undergo pharmacological treatment. (shrink)

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall argue that (...) there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called 'political regret' and the denunciatory role aspect of punishment makes it particularly well-suited to this role. (shrink)

Many philosophers hold that punishment has an expressive dimension. Advocates of expressive theories have different views about what makes punishment expressive, what kinds of mental states and what kinds of claims are, or legitimately can be expressed in punishment, and to what kind of audience or recipients, if any, punishment might express whatever it expresses. I shall argue that in order to assess the plausibility of an expressivist approach to justifying punishment we need to pay careful attention to whether the (...) things which punishment is supposed to express are aimed at an audience. For the ability of any version of expressivism to withstand two important challenges, which I call the harsh treatment challenge’ and the ‘publicity challenge’ respectively. will depend on the way it answers them. The first of these challenges has received considerable discussion in the literature on expressive theories of punishment; the second considerably less. This is unfortunate. For careful consideration of the publicity challenge should lead us to favor a version of the expressive theory which has been under-discussed: the view on which punishment has an intended audience, and on which the audience is society at large, rather than—as on the most popular version of that view—the criminal. Furthermore, this view turns out to be better equipped to meet the harsh treatment challenge, and to be so precisely because of the way in which it meets the publicity challenge. (shrink)