The settlements surrounding the Exxon Valdez oil spill prove to be an interesting case of retributive and corrective justice in regard to damage to the ecology of the commons, particularly in light of the recent Deepwater Horizon spill in the Gulf of Mexico. After reviewing the harm done to the ecology of Prince William Sound by the spill, and an account of Exxon Corporation’s responsibility, I examine the details of the litigation, particularly the Supreme Court decision in this matter. In (...) the early settlement, there is a clear disproportion between damage awards to plaintiffs representing the current economic users of Prince William Sound versus the trustees for the Sound’s commons. I argue that the disproportion reveals not only a thoroughly economic understanding of ecological commons, but bias in the treatment of its current economic users, as opposed to an understanding of such ecologies as true commons shared over generations. I argue that such biases fail reasonable moral tests and do not stand up to common principles of retributive justice. I end by suggesting a legal maneuver to correct such tendencies. (shrink)

This paper aims at bringing a new philosophical perspective to the current debate on the death penalty through a discussion of peculiar kinds of uncertainties that surround the death penalty. I focus on laying out the philosophical argument, with the aim of stimulating and restructuring the death penalty debate. I will begin by describing views about punishment that argue in favour of either retaining the death penalty (‘retentionism’) or abolishing it (‘abolitionism’). I will then argue that we should not ignore (...) the so-called “whom-question”, i.e. “To whom should we justify the system of punishment?” I identify three distinct chronological stages to address this problem, namely, “the Harm Stage”, “the Blame Stage”, and “the Danger Stage”. I will also identify four problems arising from specific kinds of uncertainties present in current death penalty debates: (1) uncertainty in harm, (2) uncertainty in blame, (3) uncertainty in rights, and (4) uncertainty in causal consequences. In the course of examining these four problems, I will propose an ‘impossibilist’ position towards the death penalty, according to which the notion of the death penalty is inherently contradictory. Finally, I will suggest that it may be possible to apply this philosophical perspective to the justice system more broadly, in particular to the maximalist approach to restorative justice. (shrink)

A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant. -/- This article revisits the concept of deterrence and defend a more plausible deterrence theory of (...) punishment—the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality. (shrink)

In the United States, the identities of criminal offenders are matters of public record, accessible to prospective employers, the press, and ordinary citizens. In European countries, the identities of offenders are routinely kept hidden, with some exceptions. The question addressed in this discussion concerns whether the public disclosure of the identities of offenders is part and parcel of their legal punishment. My contentions are that public disclosure is not conceptually part of legal punishment, necessary to serve substantive penal aims, or (...) likely to enhance penal aims. At times, it will conflict with defensible aims of legal punishment. Other values might support or require the public identification of criminal offenders, but the aims of legal punishment do not appear to do so. (shrink)

In this issue, Elizabeth Shaw and Gulzaar Barn offer a number of replies to my arguments in ‘Criminal Rehabilitation Through Medical Intervention: Moral Liability and the Right to Bodily Integrity’, Journal of Ethics. In this article I respond to some of their criticisms.

This paper engages with a specific problem concerning the relationship between descriptive and normative claims. Namely, if we understand that descriptive claims frequently contain normative assertions, and vice versa, how then do we interpret the traditionally rigid distinction that is made between the two, as ’Hume’s law’ or Moore’s ’naturalistic fallacy’ argument offered. In particular, Kripke’s interpretation of Wittgenstein’s ’rule-following paradox’ is specially focused upon in order to re-consider the rigid distinction. As such, the paper argues that if descriptive and (...) normative claims are not mutually exclusive, then we need a new framework with which to understand this relationship. In this regard, the paper borrows from concerns with vagueness, particularly using a degree-theoretic approach in terms of subjective probability, in an attempt to graphically figure out these differences. Consequently, the paper tentatively proposes the hyperbola model in which degrees of normativity and degrees of descriptivity could be expressed and measured. It is hoped, as a result, that this tentative proposal will contribute to deepening the debate on vagueness in general. (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)

The pre-trial detention of individuals charged with crimes is viewed by many legal scholars as problematic. Standard arguments against it are that it constitutes legal punishment of individuals not yet convicted of crimes, violates the presumption of innocence, and rests on dubious predictions of future crime. I defend modified and restrained forms of pre-trial detention. I argue that pre-trial detention could be made very different than imprisonment, should be governed by strict criteria, and is warranted, when the evidence of danger (...) is convincing. I contend that the presumption of innocence does not preclude us from doing many other things to criminal suspects and defendants that imply their guilt. Finally, I dispute arguments designed to show that pre-trial detention can be justified to prevent absconding or interferences with the course of justice, but not to prevent other, and sometimes much more serious, offenses. (shrink)

I will argue that a desert-based justification for treating a person in a certain way is a justification that holds this treatment to be justified simply by what the person is like and what he or she has done, independent of (1) the fact that treating the person in this way will have good effects (or that treating people like him or her in this way will have such effects); (2) the fact that this treatment is called for by some (...) (justified) institution or practice; or (3) the fact that the person could have avoided being subject to this treatment by choosing appropriately, and therefore cannot complain of it. I will explore the implications of this understanding of desert for the role of desert-based justifications of blame, punishment, and economic reward. (shrink)

Retributivist accounts of punishment maintain that it is right to punish wrongdoers, even if the punishment has no future benefits. Research in experimental economics indicates that people are willing to pay to punish defectors. A complementary line of work in social psychology suggests that people think that it is right to punish wrongdoers. This work suggests that people are retributivists about punishment. However, all of the extant work contains an important potential confound. The target of the punishment is expected to (...) be aware of the punitive act. Thus, it's possible that people punish because they want to communicate something to the wrongdoer, e.g. disapproval, the presence of a norm, etc. In three studies, we examine whether people will punish even when the punishee will be ignorant. We find that people are no less likely to punish when the punishee will be ignorant. This finding emerges both in a survey study and in a monetized behavioural decision study. (shrink)

Plea bargaining is a response to capacity overload in the criminal justice system. It both preserves and belies the right to trial, making possible its glorious display but only by denying it in most cases. While plea bargaining has been documented and analysed copiously in historical, sociological and legal terms, its ethical status as an institutional practice are hazy. Richard Lippke offers an account of plea bargaining that draws on the normative debates over responsibility, culpability and desert, in aid of (...) a holistic proposal for a morally defensible system of pre-trial adjudication. In proposing an ethical system of plea bargaining, and working through the normative challenges to this, two bigger questions become visible. These are: what are the implications of developing, in essence, an ethics of efficiency, and, how should the criminal justice system be held to account for the inequalities (and iniquities) that exist before and outside it? In this review essay, I show how these questions are constructed in the book and make some attempt at analysing them, thus engaging with the more urgent and general issue of the complicated relationship of the ideal to the real when it comes to penal practice. (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.

After distinguishing different species of Legal Moralism I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the (...) entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization, and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation. (shrink)

Desert plays an important role in most contemporary theories of retributive justice, but an unimportant role in most contemporary theories of distributive justice. Saul Smilansky has recently put forward a defense of this asymmetry. In this study, I argue that it fails. Then, drawing on an argument of Richard Arneson’s, I suggest an alternative consequentialist rationale for the asymmetry. But while this shows that desert cannot be expected to play the same role in distributive justice that it can play in (...) retributive justice, it does not fully vindicate the asymmetry, since desert can still play an important role in the former. (shrink)

Two recent discussions concerning punishment of the socially deprived reach conflicting conclusions. Andrew von Hirsch and Andrew Ashworth argue that we should sympathize with the predicament of the poor and therefore mitigate their sentences. Peter Chau disputes von Hirsch and Ashworth’s conclusion, contending that having to face strong temptations is not an appropriate ground for reducing anyone’s punishment for their crimes. I argue that neither von Hirsch and Ashworth’s account nor Chau’s critique of it is persuasive. I then take up (...) the challenge of showing why social deprivation renders punishment problematic. I contend that it establishes a perverse incentive structure that is persistent and powerful, requiring the disadvantaged to exercise self-control on an ongoing basis. Repeated acts of self-control are difficult, especially for youths whose skills at it are not yet fully developed. Also, in a variety of more and less subtle ways, social deprivation reduces the incentives for self-control and may work to stunt its development. In closing, I briefly consider the options for responding to the crimes of the chronically disadvantaged. (shrink)

Abstract:In 2003, CEOs of the 365 largest U.S. corporations were paid on average $8 million, 301 times as much as factory workers. This paper asks whether CEOs get paid too much. Appealing to widely recognized moral values, I distinguish three views of justice in wages: the agreement view, the desert view, and the utility view. I argue that, no matter which view is correct, CEOs get paid too much. I conclude by offering two ways CEO pay might be reduced.

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)

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)

Steven Tudor defends the mitigation of criminal sentences in cases in which offenders are genuinely remorseful for their crimes. More than this, he takes the principle that such remorse-based sentence reductions are appropriate to be a ‘well-settled legal principle’—so well settled, in fact, that ‘it is among those deep-seated commitments which can serve to test general theories as much as they are tested by them’. However, his account of why remorse should reduce punishment is strongly philosophical in character. He sets (...) to one side the many practical difficulties in implementing such reductions in the real world of criminal justice institutions so that he can focus on the question of whether a plausible account of sentencing can show that remorse should mitigate punishment. I contend that Tudor’s defense of such reductions is unpersuasive in certain respects. Yet even if it can be made more persuasive, I argue that the conditions that would have to be satisfied for remorse-based sentence reductions to be justifiably implemented are so many and various that they would likely exceed our abilities to responsibly grant them in real world legal contexts. I therefore claim that Tudor has failed to provide a defense of the ‘remorse principle’ that serves to explain or justify existing legal practices. (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)

This paper examines the recent actions by the United States in Iraq in the light of just war principles, and sets forth a program for holding accountable those most responsible for war crimes in Iraq.

The paper begins with the plausible view that criminal responsibility should track moral responsibility, and explains its plausibility. A necessary distinction is then drawn between liability and answerability as two dimensions of responsibility, and is shown to underpin the distinction in criminal law between offences and defences. This enables us to distinguish strict liability from strict answerability, and to see that whilst strict criminal liability seems inconsistent with the principle that criminal responsibility should track moral responsibility, strict criminal answerability is (...) not. We must ask, therefore, whether, when and why strict criminal responsibility is unacceptable. (shrink)

Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve (...) scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified. (shrink)

Scholars depict punishment as a moral dialogue between the community and the offender, which addresses both the offender’s crime and character. However, how the penal message evolves vis a vis that crime and character as it passes through the different stages of the criminal process has remained under-theorized. This article, building on communicative theory, explores the interrelation between crime and character along the penal process, from sentencing, through prison, to parole release. We argue that in the penal dialogue the relationship (...) between crime and character evolves in a dynamic way through three phases: separateness (sentencing), fusion (prison), and re-distinction (parole) of crime and character. The proposed analysis develops the communicative meaning of the penal process, provides a normative account of the work of punishment administration authorities, and explores applications of our proposed normative analysis for the administration of the punishment. (shrink)

Artificial intelligence is increasingly permeating many types of high-stake societal decision-making such as the work at the criminal courts. Various types of algorithmic tools have already been introduced into sentencing. This article concerns the use of algorithms designed to deliver sentence recommendations. More precisely, it is considered how one should determine whether one type of sentencing algorithm (e.g., a model based on machine learning) would be ethically preferable to another type of sentencing algorithm (e.g., a model based on old-fashioned programming). (...) Whether the implementation of sentencing algorithms is ethically desirable obviously depends upon various questions. For instance, some of the traditional issues that have received considerable attention are algorithmic biases and lack of transparency. However, the purpose of this article is to direct attention to a further challenge that has not yet been considered in the discussion of sentencing algorithms. That is, even if is assumed that the traditional challenges concerning biases, transparency, and cost-efficiency have all been solved or proven insubstantial, there will be a further serious challenge associated with the comparison of sentencing algorithms; namely, that we do not yet possess an ethically plausible and applicable criterion for assessing how well sentencing algorithms are performing. (shrink)

Criminal justice systems have traditionally relied heavily on human decision-making, but new technologies are increasingly supplementing the human role in this sector. This paper considers what general limits need to be placed on the use of algorithms in sentencing decisions. It argues that, even once we can build algorithms that equal human decision-making capacities, strict constraints need to be placed on how they are designed and developed. The act of condemnation is a valuable element of criminal sentencing, and using algorithms (...) in sentencing – even in an advisory role – threatens to undermine this value. The paper argues that a principle of “meaningful public control” should be met in all sentencing decisions if they are to retain their condemnatory status. This principle requires that agents who have standing to act on behalf of the wider political community retain moral responsibility for all sentencing decisions. While this principle does not rule out the use of algorithms, it does require limits on how they are constructed. (shrink)

Theorists of criminal law widely agree that state punishment involves harsh treatment and stigma and that states must therefore provide protections for targeted individuals. But certain regulatory...

Why is the ethics of punishment an important academic field? The standard answer given by philosophers, legal scholars, and other theorists is that academic engagement in the ethics of punishment is justified by the importance of informing and guiding penal practice. In this article, this view is referred to as the Impact Assumption. The purpose of the article is to consider what this assumption implies for the way research within this field should be conducted. First, I argue that the way (...) research is currently being disseminated, the nature of the research itself, and the lack of interest among legislators and other decision-makers, constitute serious challenges to the satisfaction of the Impact Assumption. Second, I suggest that these challenges can be overcome, but that this will require a significant expansion and reorientation of the entire field. (shrink)

Philosophy and Phenomenological Research, Volume 104, Issue 1, Page 19-49, January 2022.

Ratio Juris, Volume 34, Issue 4, Page 293-314, December 2021.

Many philosophers and legal scholars believe that the principle of retribution can be employed as a basis for respecting the offender as a person and for imposing relatively soft sentences. This belief is inspired, at least to a certain extent, by the penal philosophy of Kant and Hegel. My aim in this article is to question this widely held belief, with my contention being that retributivists locate the basis of these normative considerations in the wrong place. It is not the (...) application of the principle of retribution that makes systems of criminal law fair and restrained, but rather the other way around: Only by restricting the application of the principle of retribution in various ways can we arrive at a system of penal law that is reasonable and just. These restrictions themselves are not retributive in nature, but are intended to keep the principle of retribution in check. To substantiate these claims, I discuss the views of an older generation of philosophers and scientists, specifically those of Sidgwick, Durkheim, Malinowski, and Piaget, and hold that these provide a fruitful basis for a better understanding of the principle of retribution. In the second part of the article, I investigate how this alternative understanding relates to the principles of proportionality and mens rea, while also making some clarifying remarks about the issue of moral luck. (shrink)

There has been recent speculation that some animals are moral agents. Using a retributivist framework, I argue that if some animals are moral agents, then there are circumstances in which some of them deserve punishment. But who is best situated to punish animal wrongdoers? This paper explores the idea that the answer to this question is humans.

According to relational egalitarians, equality is not primarily about the distribution of some good but about people relating to one another as equals. However, compared with other theorists in political philosophy – including other egalitarians – relational egalitarians have said relatively little on what role personal responsibility should play in their theories. For example, is equality compatible with responsibility? Should economic distributions be responsibility-sensitive? This article fills this gap. I develop a relational egalitarian framework for personal responsibility and show that (...) relational equality commits us to responsibility. I develop two sets of arguments. First, I draw on relational theories of moral responsibility – particularly Strawsonian views – to show that valuable egalitarian relationships require responsibility. Second, I show why relational equality sometimes requires that economic distributions be sensitive to responsibility and choice. I also defend a seemingly paradoxical result: being committed to responsibility, relational egalitarianism not only justifies some distributive inequalities but some relational inequalities too. Overall, relational egalitarianism gives a nuanced and coherent answer as to why and how responsibility matters from within egalitarianism. That it does should be an important argument in its favour. (shrink)

The idea of using artificial intelligence as a support system in the sentencing process has attracted increasing attention. For instance, it has been suggested that machine learning algorithms may help in curbing problems concerning inter-judge sentencing disparity. The purpose of the present article is to examine the merits of this possibility. It is argued that, insofar as the unfairness of sentencing disparity is held to reflect a retributivist view of proportionality, it is not necessarily the case that increasing inter-judge uniformity (...) in sentencing is desirable. More generally, it is shown that the idea of introducing machine learning algorithms, that produce sentencing predictions on the ground of a dataset that is built of previous sentencing decisions, faces serious problems if there exists a discrepancy between actual sentencing practice and the sentences that are ideally desirable. (shrink)

Many states recognize a legal right to bodily integrity, understood as a right against significant, nonconsensual interference with one’s body. Recently, some have called for the recognition of an analogous legal right to mental integrity: a right against significant, nonconsensual interference with one’s mind. In this chapter, we describe and distinguish three different rationales for recognizing such a right. The first appeals to case-based intuitions to establish a distinctive duty not to interfere with others’ minds; the second holds that, if (...) we accept a legal right to bodily integrity, then we must, on pain of philosophical inconsistency, accept a case for an analogous right over the mind; and the third holds that recent technological developments create a need for a legal right to mental integrity. (shrink)

The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment. In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the other, (...) presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked. (shrink)

A traditional assumption in retributivist thinking is the view that an offender's desert is determined exclusively on the basis of the gravity of the crime committed. However, this assumption has r...

Civics can be distinguished from policy. Civics concerns basic principles and institutions of political and legal order. Policy concerns specific ways in which particular ends are pursued by the st...

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)

Harming other people is prima facie wrong. Unless we can be very certain that doing so is justified under the circumstances, we ought not to do it. In this paper, I argue that we ought to dismantle harsh retributivist criminal justice systems for this reason; we cannot be sufficiently certain that the harm is justified. Gregg Caruso, Ben Vilhauer and others have previously argued for the same conclusion; however, my own version sidesteps certain controversial premises of theirs. Harsh retributivist criminal (...) justice can only be morally right if the following three propositions are true: Moral responsibility exists, retributivism is right, and we can find out how much punishment offenders deserve for their crimes. Suppose that we initially assign a high credence to each of the three propositions; I assume for the sake of argument that there are good arguments in support of each. Nevertheless, these arguments ultimately depend on intuitions. Since we have philosophical peers whose intuitions differ from ours, we ought to downgrade our credence in each. However, even slightly less credence in each proposition means far less credence in a conjunction of all three. Since the stakes are high and there are morally safer options for a criminal justice system, we ought to dismantle harsh retributivist ones. (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 his penetrating book on the criminal culpability of children, Gideon Yaffe advances a novel theory of desert. According to the theory, the punishment you deserve for committing a given crime is the punishment the prospect of which would have led you to deliberate correctly about how to act, had that punishment been presented to you beforehand as an inevitable consequence of your committing the crime. Although fascinating and ambitious, Yaffe’s theory of desert struggles as an account of who deserves (...) what, and it falls short of explaining why and how desert is normatively significant—why and how desert matters. (shrink)

The use of risk assessment tools has come to play an increasingly important role in sentencing decisions in many jurisdictions. A key issue in the theoretical discussion of risk assessment concerns the predictive accuracy of such tools. For instance, it has been underlined that most risk assessment instruments have poor to moderate accuracy in most applications. However, the relation between, on the one hand, judgements of the predictive accuracy of a risk assessment tool and, on the other, conclusions concerning the (...) justified use of such an instrument in sentencing practice, is often very unclear. The purpose of this paper is to examine this relation. More precisely, it is argued that the relation between predictive accuracy and the question as to whether a new risk assessment tool should be introduced in sentencing practice is highly complicated. For instance, there may be cases in which a new risk assessment tool is more accurate than those currently in use, but should nevertheless not be introduced; and conversely, where a new tool is less accurate, but where its introduction instead of current tools would be morally preferable. (shrink)

In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes and two fine monographs by Farmer and Tadros. It will shape the field for decades to come; and it has (...) decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility. (shrink)

The Limits of Blame, by KellyErin I. Cambridge, MA: Harvard University Press, 2018. Pp. 221.

Numerous retributivists hold that deserved punishment has intrinsic value. A number of puzzles regarding that claim are identified and discussed. An alternative, more Kantian account of intrinsic value is then identified and the ways in which legal punishment might be understood to cohere with it are explored. That account focuses on the various ways in which legal punishment might be persons-respecting. It is then argued that this Kantian account enables us to solve or evade the puzzles generated by the other (...) intrinsic value account. (shrink)