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.

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)

The paper addresses a puzzle about the proportionality requirement on self-defense due to L. Alexander. Indirectly the puzzle is also relevant to the proportionality requirement on punishment, insofar as the right to punish is derived from the right to self-defense. Alexander argues that there is no proportionality requirement on either self-defense or punishment, as long as the aggressor/offender has been forewarned of the risk of a disproportional response. To support his position Alexander appeals to some puzzle cases, challenging us to (...) explain why the requirement applies in some of them when it clearly does not in others. The paper responds to his challenge by answering two questions: why does the proportionality requirement exist in the first place, and when does it apply? The paper argues that the requirement holds because of our need to protect our rights from violation, and that it applies to cases where the person defending his rights counts as having imposed a cost on one of the offender’s options. An account is offered of when such cost imposition occurs. (shrink)

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)

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.

“Teflon immorality’’ (or TI) is immorality that goes on unchecked—the wrongdoing is not stopped and its perpetrators, beyond the reach of punishment or other sanction, often persist in their immoral ways. The idea that the immoral prosper has been recognized as morally (and legally) disturbing presumably for as long as humanity has been reflective, and can be found already in the Bible. The reasons behind a great deal of successful immorality are important practically, but uninteresting philosophically. Sometimes, however, we face (...) events that are more interesting philosophically, and Teflon immorality results from oddities such as moral paradoxes and perversions. These, however, have remained largely unnoticed. I will outline a tentative survey of this topic. After showing its pervasiveness and importance, I will briefly reflect on its relevance to the way we should think about morality and about the means to further it, and confront possible objections. (shrink)

This article defends the fair-play theory of legal punishment against three objections. The first, the irrelevance objection, is the long-standing complaint that fair play fails to capture what it is about crimes that makes criminals deserving of punishment ; the others are the recently raised false-equivalence and lacks-integration objections. In response, I sketch an account of fair-play theory that is grounded in a conception of the political order as a meta- cooperative practice—a conception that falls somewhere between contractual and communitarian (...) conceptions—and draw on this account to show how the theory can overcome the objections. (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)

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)

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)

This paper repudiates Manuel Vargas’s attempt to supplant the traditional moral influence theory of responsibility with his ‘agency cultivation model’. By focusing on fostering responsiveness to moral considerations, ACM purports to avoid the chief pitfalls of MIT. However, I contend that ACM is far less distinctive than it initially appears and so possesses all of MIT’s defects. I also assail Vargas’s counterfactual test for assessing whether a wrongdoer can respond to moral considerations. It is argued that the counterfactual test is (...) epistemically redundant because it can only be fleshed out once we have settled the issues it is supposed to resolve. Moreover, it tacitly inverts the relation between freedom and responsibility—we cannot attribute free will to wrongdoers unless we have already established their blameworthiness. The upshot of this is that enquiries into an agent’s freedom are irrelevant to the ethics of holding her responsible. (shrink)

The aim of this article is to set out a theory for treatment of criminals that rejects retributive justification for punishment; does not fall afoul of a plausible prohibition on using people merely as means; and actually works in the real world. The theory can be motivated by free will skepticism. But it can also be supported without reference to the free will issue, since retributivism faces ethical challenges in its own right. In past versions of the account I’ve emphasized (...) the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration. Here I pay special attention to the permissibility and the limits of general deterrence. (shrink)

In this paper, I consider the question of whether crime victims can be said to have a moral right to see their victimizers punished that could explain why they often feel wronged or cheated when the state fails to punish offenders. In the first part, I explain what I mean by a “right to punishment” and what it is for such a right to “explain” the frustrated crime victim’s reaction. In the second part, I distinguish such a right from a (...) Lockean-style right to punish, which is also shown incapable of providing the needed explanation. In the third part I argue that it is difficult to identify any benefit such that the right to punishment could plausibly be understood as a right to that benefit. I discuss two main candidates here: the vaguely Hegelian idea that punishment is itself some sort of restitution for the wrong done to the victim; and the idea, due to Victor Tadros, that punishment is a form of compensation for wrongdoing by contributing indirectly to protecting victims from future harm. In the final section, I suggest instead that the frustrated crime victim’s reaction, when justified, is best explained, not by the violation of any right to punishment, but rather by the state’s failure to treat the victim as an equal. (shrink)

Philosophical writing about the legal practice of punishment has traditionally focused on two central questions: what (if anything) justifies the practice of tr.

It has recently been suggested that the fact that punishment involves an intention to cause suffering undermines expressive justifications of punishment. I argue that while punishment must involve harsh treatment, harsh treatment need not involve an intention to cause suffering. Expressivists should adopt this conception of harsh treatment.

Among the advocates of expressive theories of punishment, there is a strong consensus that monetary fines cannot convey the message of censure that is required to punish serious crimes or crimes against the person. Money is considered an inappropriate symbol to express condemnation. In this article, I argue that this sentiment is correct, although not for the reasons suggested by advocates of expressivism. The monetary day-fine should not be understood as a simple deprivation of money, but as a punishment that (...) reduces the offender’s capacity to consume for a certain period of time. Conceived in this manner, I argue that it is perfectly suitable to convey censure. However, the practical impossibility of ensuring that the person who pays the fine is the same person who has been convicted of the offense seriously undermines the acceptability of the monetary fine as an instrument of censure. Minimizing the risk of the fine’s hard treatment being transferred to third parties is a necessary condition for the monetary fine to be considered a viable alternative to lengthy prison sentences. (shrink)

Nathan Hanna has recently argued against a position I defend in a 2013 paper in this journal and in my 2016 book on punishment, namely that we can punish someone without intending to harm them. In this discussion note I explain why two alleged counterexamples to my view put forward by Hanna are not in fact counterexamples to any view I hold, produce an example which shows that, if we accept a number of Hanna’s own assumptions, punishment does not require (...) an intention to harm, and discuss whether a definition and counter-example approach is the best way to proceed in the philosophy of punishment. I conclude with a brief exegetical discussion of H.L.A Hart’s Prolegomenon to the Principles 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.

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.

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (shrink)

If one has a right merely in virtue of being a person, she cannot lose that right as long as she remained a person – or so I argue. After sketching out what I mean by “natural rights,” “inalienable rights,” and “nonforfeitable rights,” I give some reasons to think any instance of the first would also have to be an instance of the latter two. I then respond to critiques of inalienability by A. John Simmons and Andrew Jason Cohen. After (...) which, I apply the argument given for why natural rights would have to be inalienable as a reason to think they would also have to be nonforfeitable. Then I respond to the idea that the nonforfeitability of natural rights would conflict with self-defense by outlining an alternate account of self-defense. In closing, I consider some potential implications of the inalienability and nonforfeitability of natural rights, should such natural rights exist. (shrink)

This paper considers electronic monitoring (EM) a promising alternative to imprisonment as a criminal sanction for a series of criminal offenses. However, little has been said about EM from an ethical perspective. To evaluate EM from an ethical perspective, six initial ethical challenges are addressed and discussed. It is argued that since EM is developing as a technology and a punitive means, it is urgent to discuss its ethical implications and incorporate moral values into its design and development.

In Wrongs and Crimes, Victor Tadros argues that wrongdoers acquire special duties to those they’ve wronged, and from there he generates wrongdoers’ duties to contribute to general deterrence by being punished. In support, he contends that my manipulation argument against compatibilism fails to show that causal determination is incompatible with the proposed duties wrongdoers owe to those they’ve wronged. I respond that I did not intend my manipulation argument to rule out a sense of moral responsibility that features such duties, (...) and that I don’t believe it does. In fact, I’m willing to accept a restricted version of Tadros’s proposal, and I explain how this addition modifies the self-defense-based position on deterrence that I’ve defended in the past. (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)

Boonin examines more than a dozen theories of punishment and offers perhaps the most systematic argument that the legal practice of punishment is probably unjustified. This provocative claim comes at a time when US prisons face unsustainable population growth and high recidivism rates. In place of punishment, Boonin offers an account of ‘compulsory victim restitution’. Responses to Boonin have focused on the merits of his theory of restitution or have defended a single particular theory of punishment from his objections. The (...) present paper offers a more comprehensive response, which finds a critical fault in the crux of Boonin’s argument: the ‘entailment test’. If the practice of punishment is unjustified, it is not for the reasons Boonin gives. (shrink)

In this paper, I defend fairness-based retributivism against two important objections, the no-benefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory’s distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.

This paper concerns what if any obligations a “society of equals” has to criminal offenders after legal punishment ends. In the United States, when people leave prisons, they are confronted with a wide range of federal, state, and local laws that burden their ability to secure welfare benefits, public housing, employment opportunities, and student loans. Since the 1980s, these legal consequences of criminal convictions have steadily increased in their number, severity, and scope. The central question I want to ask is (...) whether the infliction of these burdensome legal consequences for those who have already been punished by the state is consistent with the ideal of equality. I argue that these collateral legal consequences violate relational egalitarian principles of justice and are thus objectionable. I conclude by examining possible objections to my argument. (shrink)

This paper contributes to the normative debate over capital punishment by looking at whether the role of executioner is one in which it is possible and proper to take pride. The answer to the latter question turns on the kind of justification the agent can give for what she does in carrying out the role. So our inquiry concerns whether the justifications available to an executioner could provide him with the kind of justification necessary for him to take pride in (...) what he does. If they cannot, I argue, this sheds some light on their adequacy as justifications. The main argument of the paper is that social control arguments for the death penalty fail to provide an adequate justification. I also give some consideration to retributive justifications. The argument is developed through close attention to the depiction of Albert Pierrepoint in the film, Pierrepoint: The Last Hangman. (shrink)

I argue here that the practice of penal torture is not intrinsically wrongful. A common objection against the practice of penal torture is that there is something about penal torture that makes it wrongful, while this is not the case for other modes of punishment. I call this claim the asymmetry thesis. One way to defend this position is to claim that penal torture is intrinsically wrongful. It is the claim I argue against here. I discuss and reject three versions (...) this claim. I first address a version that is based on the idea that penal torture, unlike other modes of punishment, is intrinsically wrong because it is inhuman. I then address a version grounded on the claim that, because penal torture is an assault upon the defenseless, it is morally impermissible. Finally, I discuss a version that concerns the idea that penal torture attacks human dignity and undermine agency. (shrink)