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)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

Philosophy Compass, Volume 17, Issue 5, May 2022.

This article seeks to reveal, conceptualize, and analyze a trend in the development of the retributive theory of punishment since the beginning of the 21st century. We term this trend “retributarianism.” It is reflected in the emergence of retributive approaches that through expanding the concepts of censure and culpability extend the relevant time-frame for assessing the deserved punishment beyond the sentencing moment. These retributarian approaches are characterized by the individualization of retributivism. On one hand, retributarianism shares with classic retributivism the (...) rhetoric of justice, a focus on the moral evaluation of the severity of the offense, and the primary importance ascribed to maintaining proportionality. On the other hand, it shares with utilitarianism the possibility of taking into account, in addition to the severity of the offense, the offender’s personal circumstances, with a future-oriented perspective that also considers developments subsequent to the commission of the offense. This article analyzes the emergence of retributarianism, suggests possible explanations for its development, and assesses its possible implications for penal theory and policy. (shrink)

I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).

This paper attempts to establish that, and explain why, the practice of punishing offenders is in principle morally permissible. My account is a nonstandard version of the fair play view, according to which punishment 's permissibility derives from reciprocal obligations shared by members of a political community, understood as a mutually beneficial, cooperative venture. Most fair play views portray punishment as an appropriate means of removing the unfair advantage an offender gains relative to law-abiding members of the community. Such views (...) struggle, however, to provide a plausible account of this unfairly gained benefit. By contrast, on my account punishment 's permissibility follows more straightforwardly from the fair play view of political obligation: Specifically, the rule instituting punishment is itself among those rules with which members of the political community are obliged to comply. For criminal offenders, compliance requires submitting to the prospect of punishment. (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)

Most punishment theorists seem to accept the following claim: punishment is intended to harm the punishee. A significant minority of punishment theorists reject the claim, though. I defend the claim from objections, focusing mostly on recent objections that haven’t gotten much attention. My objective is to reinforce the already strong case for the intentions claim. I first clarify what advocates of the intentions claim mean by it and state the standard argument for it. Then I critically discuss a wide variety (...) of objections to the claim and to the standard argument for it. (shrink)

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)