The Black Lives Matter movement has called for the abolition of capital punishment in response to what it calls “the war against Black people” and “Black communities.” This article defends the two central contentions in the movement’s abolitionist stance: first, that US capital punishment practices represent a wrong to black communities rather than simply a wrong to particular black capital defendants or particular black victims of murder, and second, that the most defensible remedy for this wrong is the abolition of (...) the death penalty. (shrink)

In this paper we explore whether or not the use of risk assessment tools in criminal sentencing can be made compatible with a retributivist justification of punishment. While there has been considerable discussion of the accuracy and fairness of these tools, such discussion assumes that one’s recidivism risk is relevant to the severity of punishment that one should receive. But this assumption only holds on certain accounts of punishment, and seems to conflict with retributivist justifications of punishment. Drawing on the (...) broader desert literature, we explain the source of this conflict, and suggest that a retributivist approach on which the severity of punishment partly depends on one’s character in addition to their acts offers some hope of reconciling retributivism with the use of risk assessment tools in considerations of sentencing reduction in particular. Ultimately, however, even this limited attempt at reconciliation fails, so long as risk assessment tools fail to distinguish between risk that one is responsible for, and risk that one is not responsible for. (shrink)

This paper argues that Immanuel Kant’s practical philosophy contains a coherent, albeit implicit, defense of the legitimacy of capital punishment, one that refutes the most important objections leveled against it. I first show that Kant is consistent in his application of the ius talionis. I then explain how Kant can respond to the claim that death penalty violates the inviolable right to life. To address the most significant objection – the claim that execution violates human dignity – I argue that (...) motives of honor, as Kant conceives it, require a rational person to will her own execution, were she to commit murder. (shrink)

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

This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to be an argument only against retributive (...) justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments. (shrink)

Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public (...) reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason. (shrink)

Chad Flanders has argued that retributivism is inconsistent with John Rawls’s core notion of public reason, which sets out those considerations on which legitimate exercises of state power can be based. Flanders asserts that retributivism is grounded in claims about which people can reasonably disagree and are thus not suitable grounds for public policy. This essay contends that Rawls’s notion of public reason does not provide a basis for rejecting retributivist justifications of punishment. I argue that Flanders’s interpretation of public (...) reason is too exclusionary: on it, public reason would rule out any prominent rationale for punishment. On what I contend is a better interpretation of public reason, whether retributivism would be ruled out as a rationale for punishment depends on whether a retributivist account can be constructed from shared political commitments in a liberal democracy. Some prominent versions of retributivism meet this requirement and so are consistent with public reason. (shrink)