Why Paternalists and Social Welfarists Should Oppose Criminal Drug Laws

In Chris W. Surprenant (ed.), Rethinking Punishment in the Era of Mass Incarceration. Routledge. pp. 225-241 (2017)
  Copy   BIBTEX

Abstract

We discuss the crucial, but easily missed, link between paternalism and incarceration. Legal paternalists believe law should be used to help individuals stay healthy or moral or become healthier or morally better. Criminal laws are paternalistic if they make it illegal to perform some action that would be bad for the actor to do, regardless of effects on others. Yet, one result of such laws is the punishment, including incarceration, of the very same actors—also clearly bad for them even if meant to be rehabilitative. Therein lies an oddity: paternalist criminal law—and thepresumably rehabilitativepunishments that serve as responses to infringements of such laws—is meant to help the actor but in fact has the opposite effect on net. Incarceration is particularly problematic on this front as it harms the alleged criminal in ways that go beyond the harm they would have caused themselves. Incarceration also may undermine the actor’s ability to improve his decision-making abilities or his moral character. The effects of the punishment also drift to others—family and friends, as well as business associates, of the punished. Paternalists, inasmuch as they are motivated by beneficence or concern about moral character, must account for all of these costs as threats to well-being and the conditions for acting morally. Given the link between paternalism and incarceration, we propose that if we are to take seriously the problem of over-incarceration in the U.S., we must reconsider the use of paternalism in criminal law; we sketch several alternatives. We believe paternalists should support our resistance to incarceration and seriously consider these alternatives.

Author's Profile

Andrew Jason Cohen
Georgia State University

Analytics

Added to PP
2021-01-15

Downloads
469 (#32,448)

6 months
137 (#20,446)

Historical graph of downloads since first upload
This graph includes both downloads from PhilArchive and clicks on external links on PhilPapers.
How can I increase my downloads?