According to a number of influential views in penal theory, 1 one of the primary goals of the criminal justice system is to rehabilitate offenders. Rehabilitativemeasures are commonly included as a part of a criminal sentence. For example, in some jurisdictions judges may order violent offenders to attend anger management classes or to undergo cognitive behavioural therapy as a part of their sentences. In a limited number of cases, neurointerventions — interventions that exert a direct biological effect on the brain (...) — have been used as aids to rehabilitation, typically being imposed as part of criminal sentences, separate treatment orders, or conditions of parole. Examples of such interventions include medications intended to attenuate addictive desires in substance-abusing offenders and agents intended to suppress libido in sex offenders.This chapter reviews some of the ethical issues raised by the use of neurointerventions as aids to rehabilitation. (shrink)

Retributivist approaches to the philosophy of punishment are usually based on certain claims related to moral desert. I focus on one such principle:Censuring Principle : There is a moral reason to censure guilty wrongdoers aversively.Principles like CP are often supported by the construction of examples similar to Kant’s ‘desert island’. These are meant to show that there is a reason for state officials to punish deserving wrongdoers, even if none of the familiar goals of punishment, such as deterrence, will be (...) achieved. When suitable variants of such examples are presented, however, it is evident that there cannot be much reason to punish such wrongdoers, even if there is some. The same problem besets claims that there is intrinsic value in the suffering of wrongdoers, or that wrongdoers deserve to suffer. All such claims are relatively weak normatively. (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)

Many philosophers and laypeople have the following two intuitions about legal punishment: the state has a pro tanto moral reason to punish all those guilty of breaking a just law and to do so in proportion to their guilt. Accepting that there can be overriding considerations not to punish all the guilty in proportion to their guilt, many philosophers still consider it a strike against any theory if it does not imply that there is always a supportive moral reason to (...) do so. In this paper, I demonstrate that censure theory accounts for these intuitions much better than any other theory, including forms of retributivism such as desert theory and fairness theory, and explain why censure theory is able to do so. (shrink)

There is considerable variability across people in their punitive responses to employee offenses in the workplace. We attempt to explain this variability by positing a novel antecedent of punishment: moral recognition. We find consistent evidence that identifying moral considerations and implications for workplace offenses predicts punitive responses toward employees who commit those offenses. Drawing on functional theoretical accounts of morality and punishment, we posit that people are motivated to punish others to the extent that they believe a moral offense has (...) been committed, because much of what it means to commit a moral offense (as opposed to a non-moral offense) is to act in a way that prevents, or inhibits, cooperative behavior to achieve social goals. Punishment can discourage group members from committing those offenses in the future, thereby regulating behavior in a way that facilitates cooperation and social cohesion. We offer correlational and causal evidence that the link between moral recognition and punishment is explained, in part, by participants’ beliefs that committing these offenses prevents cooperative behavior to achieve organization-related goals. (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)

It is often said that the institutions of criminal justice ought or—perhaps more often—ought not to rehabilitate criminal offenders. But the term ‘criminal rehabilitation’ is often used without being explicitly defined, and in ways that are consistent with widely divergent conceptions. In this paper, we present a taxonomy that distinguishes, and explains the relationships between, different conceptions of criminal rehabilitation. Our taxonomy distinguishes conceptions of criminal rehabilitation on the basis of (i) the aims or ends of the putatively rehabilitative measure, (...) and (ii) the means that may be used to achieve the intended end. We also explore some of the implications of each conception, some of the payoffs of a taxonomy of the kind we offer, and some areas for future work. (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)

In a 2004 paper, Greene and Cohen predicted that neuroscience would revolutionise criminal justice by presenting a mechanistic view of human agency that would change people’s intuitions about retributive punishment. According to their theory, this change in intuitions would in turn lead to the demise of retributivism within criminal justice systems. Their influential paper has been challenged, most notably by Morse, who has argued that it is unlikely that there will be major changes to criminal justice systems in response to (...) neuroscience. In this paper we commence a tentative empirical enquiry into the claims of these theorists, focusing on Australian criminal justice. Our analysis of Australian cases is not supportive of claims about the demise of retributive justice, and instead suggests the possibility that neuroscience may be used by the courts to calibrate retributive desert. It is thus more consistent with the predictive claims of Morse than of Greene and Cohen. We also consider evidence derived from interviews with judges, and this leads us to consider the possibility of a backlash against evidence of brain impairment. Finally we note that change in penal aims may be occurring that is unrelated to developments in neuroscience. (shrink)

Those found liable for negligently injuring others are required to compensate them, but current practices permit most tort feasors to spread the costs of their liability burdens through the purchase of insurance. Those found guilty of criminal offences, however, are not allowed to shift the burdens of their sentences onto others. Yet the reasons for not allowing criminal offenders to shift such burdens – harm reduction, retribution, and moral education – also appear to retain some force in relation to negligent (...) tort feasors. Arguments for and against limiting the abilities of negligent tort feasors to spread such costs, thus imposing a penalty on them, are discussed. The conclusion reached is that further consideration of such a penalty is warranted. (shrink)

It is often said that the institutions of criminal justice ought or—perhaps more often—ought not to rehabilitate criminal offenders. But the term ‘criminal rehabilitation’ is often used without being explicitly defined, and in ways that are consistent with widely divergent conceptions. In this paper, we present a taxonomy that distinguishes, and explains the relationships between, different conceptions of criminal rehabilitation. Our taxonomy distinguishes conceptions of criminal rehabilitation on the basis of the aims or ends of the putatively rehabilitative measure, and (...) the means that may be used to achieve the intended end. We also explore some of the implications of each conception, some of the payoffs of a taxonomy of the kind we offer, and some areas for future work. (shrink)

The view that acting morally is ultimately a question of treating others with respect has had a profound influence on moral and legal philosophy. Not surprisingly, then, some scholars forcefully argue that the modes of punishment that the states mete out to offenders should not be disrespectful, and, furthermore, it has been argued that obliging offenders to receive neurological treatment is incompatible with showing them their due respect. In this paper, I examine three contemporary accounts of what showing respect for (...) offenders in our sentencing practices would amount to: that it involves not interfering with offenders’ capacities for rationality and autonomy, that it should not undermine offenders’ prospect of reform, and that it amounts to treating offenders as if opaque. I then critically discuss whether any of these accounts plausibly imply that mandating neurointerventions to some offenders is necessarily morally wrong. I argue that they do not. (shrink)

The proposal that the criminal justice system should focus on rehabilitation – rather than retribution, deterrence, or expressive denunciation – is among the least popular ideas in legal philosophy. Foremost among rehabilitation’s alleged weaknesses is that it views criminals as blameless patients to be treated, rather than culpable moral agents to be held accountable. This article offers a new interpretation of the rehabilitative approach that is immune to this objection and that furnishes the moral foundation that this approach has lacked. (...) The view rests on the principle that moral agents owe it to one another to maintain the dependability of their moral capacities. Agents who culpably commit criminal wrongs, however, betray an unacceptable degree of moral unreliability. Punishment, on this theory, consists in the enforcement of the duties that offenders have to reduce their own likelihood of recidivism. (shrink)

IntroductionStrawsonian theories of moral responsibility, which aim to ground the phenomenon of moral responsibility in our practices of holding one another accountable for our actions, lead us to think more carefully about the content of those practices. Strawson and his followers have done much to explore the significance of the deontic reactive attitudes (resentment, indignation and guilt), which we tend to aim at wrongdoers.P. F. Strawson, "Freedom and Resentment," Proceedings of the British Academy, Vol. 48 (1962). See also, R. Jay (...) Wallace, Responsibility and the Moral Sentiments (Cambridge, MA: Harvard University Press, 1994); and Stephen Darwall, The Second-Person Standpoint: Morality, Respect and Accountability (Cambridge, MA: Harvard, 2006). In this essay, I am interested in the ways in which we express those attitudes. While it is plausible that experiencing a negative reactive attitude would be permissible in every case of blameworthy wrongdoing, few would agree that verbal .. (shrink)

This paper analyses the role of remorse and apology in international criminal trials by juxtaposing two prominent cases of convicted war criminals Biljana Plavšić and Esad Landžo. Plavšić was the first and only Bosnian Serb political leader to plead guilty before the International Criminal Tribunal for the former Yugoslavia. Her acknowledgement of guilt and purported remorse expressed during her ICTY proceedings was celebrated as a milestone for both the ICTY and the Balkans. However, she later retracted her remorse while serving (...) her prison sentence. Landžo was a guard at the notorious Čelebići detention camp and did not acknowledge his guilt publicly during his ICTY trial. Seven years after his release from prison, Landžo personally confronted survivors and apologised to them. Through comparison of these two widely different cases, we illustrate varying roles criminal trials can play in offender’s reflection on his/her crimes and how relevance and resonance of war criminal’s remorse in and outside of the courtroom depend on how remorse is expressed and to whom. (shrink)

‘Optimistic’ normative theories of criminal justice aim to justify criminal sanction in terms of its reprobative/rehabilitative value rather than its punitive nature as such. But do such theories accord with ordinary intuitions about what constitutes a ‘just’ response to wrongdoing? Recent empirical work on the psychology of punishers suggests that human beings have a ‘brutely retributive’ moral psychology, making them unlikely to endorse normative theories that sacrifice retribution for the sake of reprobation or rehabilitation; it would mean, for example, that (...) we cannot expect people to support such optimistic theories democratically, calling their feasibility into question. Taking the civic republican theory as an exemplar of optimistic theories, we argue that it does not fail this feasibility test. We review recent empirical research, including studies of our own, to support the claim that, far from being brute retributivists, human beings are generally satisfied only with punishment that delivers something other than mere retribution. And we show that this coheres very closely with the goals and policies that civic republicanism would support, as it may be expected to cohere also with other optimistic proposals. (shrink)

I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the criminal law at (...) any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justice—if the state ceased to impose punishments. (shrink)

This paper describes developments in punishment theory since the middle of the twentieth century. After the mid–1960s, what Stanley I. Benn called “preventive theories of punishment”—whether strictly utilitarian or more loosely consequentialist like his—entered a long and steep decline, beginning with the virtual disappearance of reform theory in the 1970s. Crowding out preventive theories were various alternatives generally (but, as I shall argue, misleadingly) categorized as “retributive”. These alternatives include both old theories (such as the education theory) resurrected after many (...) decades in philosophy’s graveyard and some new ones (such as the fairness theory). Only in the last decade or so have new vares o “consequentialism” appeared to dilute a debate among philosophers that had become almost entirely about “retributivism”. I shall describe this trend in more detail. The description will be less an update of my 1990 survey than a rethinking of it. The conclusion I draw from this rethinking is that we need to drop the utilitarian–retributivist (and nonconsequentialist–nonconsequentialist) distinction in favor of one sorting punishment theories according to whether they rely in part on empirical considerations (externalist theories) or instead rely (almost) entirely on conceptual relations (internalist theories). (shrink)

Neither currently prevalent justifications of punishment, nor a modified, contractarian version of a justification that I develop here, can be used to justify actual state punishment, even if some forms of punishment may remain legitimate. I argue in this thesis that alternative punitive practices such as developed by some Canadian aboriginal communities are more likely to conform to the criteria of punitive justice developed by standard justifications, as well as being more likely to conform to criteria developed in feminist ethics.

This thesis reconstructs John Rawl's Original Position in order to show that within a liberal democratic culture, the institution of punishment ought to conform to the Moral Education Theory of Punishment, put forth by Jean Hampton. According to Hampton, punishment should facilitate a medium where the state educates the criminal on the moral implications of her wrongdoing. I argue that citizens would select the Moral Education Theory of Punishment in the Original Position, since it offers the best opportunity to redress (...) two calamities related to the criminal's wrongdoing---namely, that it threatens the moral status of the victim, and that it results from the wrongdoer's deficient moral sensibility. Upon consideration, the representatives in the Original Position recognize that redressing either of the two calamities necessitates redressing the other; thus, both objectives reinforce one another. Consequently, the representatives would unanimously select the principles of punishment manifest in the Moral Education Theory. (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.