Mandatory minimum sentencing provisions have been a feature of the U.S. justice system since 1790. But they have expanded considerably under the war on drugs, and their use has expanded considerably under the Trump Administration; some states are also poised to expand drug-related mandatory minimums further in efforts to fight the current opioid epidemic. In this paper I outline and evaluate three prominent arguments for and against the use of mandatory minimums in the war on drugs—they appeal, respectively, to proportionality, (...) consistency, and efficiency. I ultimately defend the view that the use of mandatory minimums in the war on drugs is unjust. -/- . (shrink)

In this paper, I defend a deflationary account of proportionality, which suggests that proportionality does not explain anything valuable about a system of punishment. Proportionality, rather, is a conventional means for presenting judgments about whether punishment fits the crime. A system of punishment is proportionate to the degree that it coheres with widely shared norms about punishment. There are many reasons such coherence could be valuable, not all of which are retributive. Hence, while on a deflationary view it may be (...) important for a system of punishment to be proportionate, proportionality does not identify a uniquely important retributive value. I motivate the argument for a deflationary account of proportionality by canvassing some of the problems associated with both relative and absolute proportionality and examining how both legal theorists and courts have actually used the concept. I focus on the work of Doug Husak, and the jurisprudence of the Supreme Court of Canada. (shrink)

The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in (...) my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications. The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” ; “Mistakes of Law and Culpability”; and “Already Punished Enough.” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration. (shrink)

Adam and Eve have the same record yet receive different punishments. Adam receives the punishment that they both deserve, whereas Eve receives a more lenient punishment. In this article, we explore whether a deserved-but-unequal punishment, such as what Adam receives, can be just. We do this by explicating the conceptions of retributive justice that underlie both sides of the debate. We argue that inequality in punishment is disturbing mainly because of the disrespect it often expresses towards the offender receiving the (...) harsher treatment, and also because it casts doubt on whether Adam got what he deserved. We suggest that when no disrespect is involved and when it is clear that the criminal got what he deserved, inequality is not worrisome. (shrink)

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)