This is a presentation of the utilitarian approach to punishment. It is meant for students. The first section discusses Bentham's psychological hedonism. The second briefly criticizes it. The third section explains abstractly how utilitarianism would determine of the right amount of punishment. The fourth section applies the theory to some cases, and brings out how utilitarianism could favor punishments more or less severe than the lex talionis.

The article analyses the necessary conditions an argument for popular punishment would need to meet, and argues that it faces the challenge of a dilemma of reasonableness: either popular views on punishment are unreasonable, in which case they should carry no weight, or they are reasonable, in which case the reasons that support them, not the views, should carry weight. It proceeds to present and critically discuss three potential solutions to the dilemma, arguing that only an argument for (...) the beneficial effects of coherence between popular views and penal policy is persuasive, but that it makes popular punishment less important than proponents claim, and offers a justification proponents will find it difficult to advance. (shrink)

If one can judge a society by how it treats its prisoners, one can surely judge a society by how it treats cognitively- and learning-impaired children. In the United States children with physical and cognitive impairments are subjected to higher rates of corporal punishment than are non-disabled children. Children with disabilities make up just over 13% of the student population in the U.S. yet make up over 18% of those children who receive corporal punishment. Autistic children are among (...) the most likely to receive corporal punishment. -/- Although they may deny or redescribe particular instances of corporal punishment or their use of restraints, educators defend such actions as legitimate punishment. In this paper, I assess the logic underlying the use of restraints and corporal punishment on autistic children by educators. The rationalizations for the corporal punishment or restraint of autistics stems from the educator’s desire to control the autistic children so as to end typical autistic behaviors such as rocking, repetitive verbalizations, or “flapping” but also the autistic child’s non-affective responses such as not appearing to feel remorse or shame or the absence of a verbal acknowledgement of remorse or shame. The educators assume that the autistic’s failure to exhibit the desired responses is evidence of the autistic’s moral incorrigibility and is, therefore, evidence of the appropriateness of corporal punishment. But this assumption of the incorrigibility of the autistic child is questionable. -/- Indeed accepting this incorrigibility assumption reveals two important problems. First, instructors using physical punishment on autistic children do not understand autism. Second, they are not working with a tenable conception of punishment. Any action undertaken to induce socially acceptable behaviors (whether it be the end of autistic acts or responses such as remorse) is to fail to understand what the legitimate punishment of children is about. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist (...) position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

As philosophical and scientific arguments for free will skepticism continue to gain traction, we are likely to see a fundamental shift in the way people think about free will and moral responsibility. Such shifts raise important practical and existential concerns: What if we came to disbelieve in free will? What would this mean for our interpersonal relationships, society, morality, meaning, and the law? What would it do to our standing as human beings? Would it cause nihilism and despair as some (...) maintain or would it rather have a humanizing effect on our practices and policies, freeing us from the negative effects of belief in free will? In this chapter we consider the practical implications of free will skepticism and argue that life without free will and basic desert moral responsibility would not be as destructive as many people believe. We argue that prospects of finding meaning in life or of sustaining good interpersonal relationships, for example, would not be threatened. On treatment of criminals, we argue that although retributivism and severe punishment, such as the death penalty, would be ruled out, preventive detention and rehabilitation programs would still be justified. While we will touch on all these issues below, our focus will be primarily on this last issue. -/- We begin in section I by considering two different routes to free will skepticism. The first denies the causal efficacy of the types of willing required for free will and receives its contemporary impetus from pioneering work in neuroscience by Benjamin Libet, Daniel Wegner, and John-Dylan Haynes. The second, which is more common in the philosophical literature, does not deny the causal efficacy of the will but instead claims that whether this causal efficacy is deterministic or indeterministic, it does not achieve the level of control to count as free will by the standards of the historical debate. We argue that while there are compelling objections to the first route—e.g., Al Mele (2009), Eddy Nahmias (2002, 2011), and Neil Levy (2005)—the second route to free will skepticism remains intact. In section II we argue that free will skepticism allows for a workable morality, and, rather than negatively impacting our personal relationships and meaning in life, may well improve our well-being and our relationships to others since it would tend to eradicate an often destructive form of moral anger. In section III we argue that free will skepticism allows for adequate ways of responding to criminal behavior—in particular, incapacitation, rehabilitation, and alternation of relevant social conditions—and that these methods are both morally justified and sufficient for good social policy. We present and defend our own preferred model for dealing with dangerous criminals, an incapacitation account built on the right to self-protection analogous to the justification for quarantine (see Pereboom 2001, 2013, 2014a; Caruso 2016a), and we respond to recent objections to it by Michael Corrado and John Lemos. (shrink)

In the Gorgias, Socrates argues that just punishment, though painful, benefits the unjust person by removing injustice from her soul. This paper argues that Socrates thinks the true judge (i) will never use corporal punishment, because such procedures do not remove injustice from the soul; (ii) will use refutations and rebukes as punishments that reveal and focus attention on psychological disorder (= injustice); and (iii) will use confiscation, exile, and death to remove external goods that facilitate unjust action.

Drawing upon empirical studies of racial discrimination dating back to the 1940’s, the Movement for Black Lives platform calls for the abolition of capital punishment. Our purpose here is to defend the Movement’s call for death penalty abolition in terms congruent with its claim that the death penalty in the U.S. is a “racist practice” that “devalues Black lives.” We first sketch the jurisprudential history of race and capital punishment in the U.S., wherein courts have occasionally expressed worries (...) about racial injustice but have usually taken such evidence to warrant reform but not outright abolition. We argue that the racial discrimination at issue flows in significant part from implicit biases concerning race, criminality, and violence, which do not fit comfortably within the picture of racial bias advanced by the courts. The case for abolition, we contend, rests on Black Americans as a class (not merely those who interact with the criminal justice system as capital defendants or as murder victims) being subject to such bias and thereby not being accorded equal status under the law. (shrink)

In this paper we explore the relationship between forgiving and punishment. We set out a number of arguments for the claim that if one forgives a wrongdoer, one should not punish her. We then argue that none of these arguments is persuasive. We conclude by reflecting on the possibility of institutional forgiveness in the criminal justice setting and on the differences between forgiveness and acts of mercy.

Perhaps no one has written more extensively, more deeply, and more insightfully about determinism and freedom than Ted Honderich. His influence and legacy with regard to the problem of free will—or the determinism problem, as he prefers to frame it—looms large. In these comments I would like to focus on three main aspects of Honderich ’s work: his defense of determinism and its consequences for origination and moral responsibility; his concern that the truth of determinism threatens and restricts, but does (...) not eliminate, our life-hopes; and his attack on the traditional justifications for punishment. In many ways, I see my own defense of free will skepticism as the natural successor to Honderich ’s work. There are, however, some small differences between us. My goal in this paper is to clarify our areas of agreement and disagreement and to acknowledge my enormous debt to Ted. If I can also move him toward my own more optimistic brand of free will skepticism that would be great too. (shrink)

The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications (...) must therefore endorse treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (shrink)

This paper makes two essential claims about the nature of shame and shame punishment. I argue that, if we properly understand the nature of shame, that it is sometimes justifiable to shame others in the context of a pluralistic multicultural society. I begin by assessing the accounts of shame provided by Cheshire Calhoun (2004) and Julien Deonna, Raffaele Rodogno, & Fabrice Teroni (2012). I argue that both views have problems. I defend a theory of shame and embarrassment that connects (...) both emotions to “whole-self” properties. Shame and embarrassment, I claim, are products of the same underlying emotion. I distinguish between moralized and nonmoralized shame in order to show when, and how, moral and non-moral shame may be justly deployed. Shame is appropriate, I argue, if and only if it targets malleable moral or non-moral normative imperfections of a person’s ‘whole-self.’ Shame is unjustifiable when it targets durable aspects of a person’s “whole-self.” I conclude by distinguishing shame punishments from guilt punishments and show that my account can explain why it is wrong to shame individuals on account of their race, sex, gender, or body while permitting us to sometimes levy shame and shame punishment against others, even those otherwise immune to moral reasons. (shrink)

Many philosophers hold that punishment has an expressive dimension. Advocates of expressive theories have different views about what makes punishment expressive, what kinds of mental states and what kinds of claims are, or legitimately can be expressed in punishment, and to what kind of audience or recipients, if any, punishment might express whatever it expresses. I shall argue that in order to assess the plausibility of an expressivist approach to justifying punishment we need to pay (...) careful attention to whether the things which punishment is supposed to express are aimed at an audience. For the ability of any version of expressivism to withstand two important challenges, which I call the harsh treatment challenge’ and the ‘publicity challenge’ respectively. will depend on the way it answers them. The first of these challenges has received considerable discussion in the literature on expressive theories of punishment; the second considerably less. This is unfortunate. For careful consideration of the publicity challenge should lead us to favor a version of the expressive theory which has been under-discussed: the view on which punishment has an intended audience, and on which the audience is society at large, rather than—as on the most popular version of that view—the criminal. Furthermore, this view turns out to be better equipped to meet the harsh treatment challenge, and to be so precisely because of the way in which it meets the publicity challenge. (shrink)

From a juridical standpoint, Kant ardently upholds the state's right to impose the death penalty in accordance with the law of retribution. At the same time, from an ethical standpoint, Kant maintains a strict proscription against suicide. The author proposes that this latter position is inconsistent with and undercuts the former. However, Kant's division between external (juridical) and internal (moral) lawgiving is an obstacle to any argument against Kant's endorsement of capital punishment based on his own disapprobation of suicide. (...) Nevertheless, Kant's basic conception of autonomy underlies both of these otherwise distinct forms of lawgiving, such that acts of suicide and capital punishment are rendered equally irrational within his overall framework. (shrink)

One of the many arguments against capital punishment is that execution is irrevocable. At its most simple, the argument has three premises. First, legal institutions should abolish penalties that do not admit correction of error, unless there are no alternative penalties. Second, irrevocable penalties are those that do not admit of correction. Third, execution is irrevocable. It follows that capital punishment should be abolished. This paper argues for the third premise. One might think that the truth of this (...) premise is self-evident. But in his paper “Is the Death Penalty Irrevocable?” Mike Davis argues that it is false: the death penalty is not irrevocable. While Davis’ argument is itself somewhat compelling, it receives additional support from work in the metaphysics of death, specifically the literature on posthumous harm. Strengthened in this way, the argument deserves careful consideration. I begin with a quick sketch of Davis’ argument, then show how the Pitcher-Feinberg theory of posthumous harm enables a more robust argument against the irrevocability of capital punishment, defending their theory of harm against standard objections in the literature. Having established the coherency of the robust argument, I conclude that it nevertheless fails to make the case against irrevocability. This is because it ignores the full set of practical requirements incumbent on legal institutions that wrongly punish someone. (shrink)

In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state's relationship to its citizens. Central to my account is Rawls's “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to (...) criminals qua citizens. I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment. (shrink)

An ongoing debate in the philosophy of action concerns the prevalence of moral luck: instances in which an agent’s moral responsibility is due, at least in part, to factors beyond his control. I point to a unique problem of moral luck for agents who depend upon Brain Computer Interfaces (BCIs) for bodily movement. BCIs may misrecognize a voluntarily formed distal intention (e.g., a plan to commit some illicit act in the future) as a control command to perform some overt behavior (...) now. If so, then BCI-agents may be deserving of punishment for the unlucky but foreseeable outcomes of their voluntarily formed plans, whereas standard counterparts who abandon their plans are not. However, it seems that the only relevant difference between BCI-agents and their standard counterparts is just a matter of luck. I briefly sketch different solutions that attempt to avoid this type of moral luck, while remaining agnostic on whether any succeeds. If none of these solutions succeeds, then there may be a unique type of moral luck that is unavoidable with respect to deserving punishment for certain BCI-mediated behaviors. (shrink)

Philosophers have focused on why privacy is of value to innocent people with nothing to hide. I argue that for people who do have something to hide, such as a past crime, or bad behavior in a public place, informational privacy can be important for avoiding undeserved or disproportionate non-legal punishment. Against the objection that one cannot expect privacy in public facts, I argue that I might have a legitimate privacy interest in public facts that are not readily accessible, (...) or in details of a public fact that implicate my dignity, or in not having a public fact memorialized and spread to more people than I willingly exposed myself to. (shrink)

It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall (...) argue that there is a conception of political reconciliation available which does not involve forgiveness and this forms of reconciliation may be the best we can hope for in many conflicts. Reconciliation is nevertheless likely to require the expression of what Darrell Moellendorf has called 'political regret' and the denunciatory role aspect of punishment makes it particularly well-suited to this role. (shrink)

In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and (...) constrained by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)

In this paper, I set out a version of the Forfeiture Theory of Punishment. Forfeiture Theory: Legal punishment is just or permissible because offenders forfeit their rights.On this account, offenders forfeit their rights because they infringed on someone’s rights. My strategy is to provide a version of the Forfeiture Theory and then to argue that it survives a number of initially intuitive seeming objections, most having their origins in the recent work of David Boonin.

This chapter has two goals. First, I will present an interpretation of Kant’s mature account of punishment, which includes a strong commitment to retributivism. Second, I will sketch a non-retributive, “ideal abolitionist” alternative, which appeals to a version of original position deliberation in which we choose the principles of punishment on the assumption that we are as likely to end up among the punished as we are to end up among those protected by the institution of punishment. (...) This is radical relative to Kant’s mature theory of punishment, but arguably it conforms better to the spirit of Kant’s first Critique remarks on imputation and punishment than his mature theory does. (shrink)

This chapter examines how advances in nanotechnology might impact criminal sentencing. While many scholars have considered the ethical implications of emerging technologies, such as nanotechnology, few have considered their potential impact on crucial institutions such as our criminal justice system. Specifically, I will discuss the implications of two types of technological advances for criminal sentencing: advanced tracking devices enabled by nanotechnology, and nano-neuroscience, including neural implants. The key justifications for criminal punishment- including incapacitation, deterrence, rehabilitation, and retribution – apply (...) very differently to criminal sentences using these emerging technologies than they do to imprisonment. Further, use of these technologies would represent a shift away from retribution as the primary justification for criminal punishment. In addition, the possibility of nano-neural implants entails a new model of rehabilitation: namely, involuntary rehabilitation aimed at changing an offender’s character, rather than his environment. (shrink)

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the (...) complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict. (shrink)

According to legal expressivism, neither crime nor punishment consists merely in intentionally imposing some kind of harm on another. Crime and punishment also have an expressive aspect. They are what they are in part because they enact attitudes toward others—in the case of crime, some kind of disrespect, at least, and in the case of punishment, society’s condemnation or reprobation. Punishment is justified, at least in part, because (and when) it uniquely expresses fitting condemnation or other (...) retributive attitude. What makes retributive attitudes fitting is that they protect the victim’s status as inviolable. Hate or bias crimes dramatize the expressive aspect of crime, as they are often designed to send a message to the victim’s group and society at large. Treating the enactment of contempt and denigration toward a historically underprivileged group as an aggravating factor in sentencing may be an appropriate way to counter this message, as it reaffirms and indeed realizes the fundamental equality and inviolability of all members of a democratic community. (shrink)

Does communicative retributivism necessarily negate capital punishment? My answer is no. I argue that there is a place, though a very limited and unsettled one, for capital punishment within the theoretical vision of communicative retributivism. The death penalty, when reserved for extravagantly evil murderers for the most heinous crimes, is justifiable by communicative retributive ideals. I argue that punishment as censure is a response to the preceding message sent by the offender through his criminal act. The gravity (...) of punishment should be commensurate to the preceding criminal message, so that the offender can face up to the nature and significance of his crime. All murders are not the same. To measure up to the most evil and humanity-degrading murderous message, capital punishment should be the counter-message. Next, I argue that capital punishment does not necessarily violate human dignity. The death penalty and torture may both disrupt human dignity, yet in distinct ways. The death penalty terminates life, the vessel that holds together autonomy, while torture directly assaults autonomy. Torture is never permissible as a form of punishment. But death penalty, when used only on the extravagant evildoers, is justifiable, as life is thoroughly degraded by his own evil act. Further, I argue that mercy is integral to communicative retributivists’ theory of capital punishment. (shrink)

Physicians in Islamic countries might be requested to participate in the Islamic legal code of qiṣāṣ, in which the victim or family has the right to an eye-for-an-eye retaliation. Qiṣāṣ is only used as a punishment in the case of murder or intentional physical injury. In situations such as throwing acid, the national legal system of some Islamic countries asks for assistance from physicians, because the punishment should be identical to the crime. The perpetrator could not be punished (...) without a physician’s participation, because there is no way to guarantee that the sentence would be carried out without inflicting more injury than the initial victim had suffered. By examining two cases of acid throwing, this paper discusses issues related to physicians’ participation in qiṣāṣ from the perspective of medical ethics and Islamic Shari’a law. From the standpoint of medical ethics, physicians’ participation in qiṣāṣ is not appropriate. First, qiṣāṣ is in sharp contrast to the Hippocratic Oath and other codes of medical ethics. Second, by physicians’ participation in qiṣāṣ, medical practices are being used improperly to carry out government mandates. Third, physician participation in activities that cause intentional harm to people destroys the trust between patients and physicians and may adversely affect the patient–physician relationship more generally. From the standpoint of Shari’a, there is no consensus among Muslim scholars whether qiṣāṣ should be performed on every occasion. We argue that disallowing physician involvement in qiṣāṣ is necessary from the perspectives of both medical ethics and Shari’a law. (shrink)

I argue that rights-forfeiture by itself is no path to permissibility at all (even barring special circumstances), neither in the case of self-defense nor in the case of punishment. The limiting conditions of self-defense, for instance – necessity, proportionality (or no gross disproportionality), and the subjective element – are different in the context of forfeiture than in the context of justification (and might even be absent in the former context). In particular, I argue that a culpable aggressor, unlike an (...) innocent aggressor, forfeits rights against proportionate defense, including unnecessary defense (as well as rights against the infliction of proportionate non-defensive harm). Yet, I demonstrate that this stance need not lead to the abandonment of the necessity condition of justified self-defense in the case of a culpable aggressor. Since justification and liability are not the same, there is no reason to assume that the necessity condition of justified self-defense must be explained under an appeal to the aggressor’s rights. Parallel arguments apply to the other limiting conditions of permissible self-defense as well as to the limiting conditions of permissible punishment. Accordingly, I also sketch alternative explanations of the proportionality requirement and the subjective element. All these alternative explanations appeal to a principle of precaution: instead of explaining the unjustifiability of unnecessarily harming a culpable attacker or wrongdoer by an appeal to the rights of the attacker or wrongdoer himself, one can also, and better, explain it by a requirement to take reasonable precautions against violating the rights of innocent people. (shrink)

Matthew Kramer has recently defended a novel justification for the death penalty, something he calls the purgative rationale. According to this rationale, the death penalty can be justifiably implemented if it is necessary in order to purge defilingly evil offenders from a moral community. Kramer claims that this rationale overcomes the problems associated with traditional rationales for the death penalty. Although Kramer is to be commended for carving out a novel niche in a well-worn dialectical space, I argue that his (...) rationale falls somewhat short of the mark. By his own lights, a successful justification of the death penalty must show that death is the minimally invasive, most humane means to some legitimate moral end. But even if we grant that his rationale picks out a legitimate moral end, there are at least three alternatives to death, either ignored or not fully considered by Kramer, which would seem to satisfy that end in a less invasive, more humane manner. (shrink)

In this chapter I use virtue theory to critique certain contemporary punishment practices. From the perspective of virtue theory, respect for rational agency indicates a respect for choice-making as the process by which we form dispositions which in turn give rise to further choices and action. To be a moral agent one must be able to act such that his or her actions deserve praise or blame; virtue theory thus demands that moral agents engage in rational choice-making as a (...) means to develop and exercise the character traits from which culpable action issues. With respect to criminal offenders, virtue theory indicates the state is obligated to recognize offenders’ right to form their own moral character via rational choice-making, even while under state supervision. I will argue below that punishment practices should limit choice-making only to the extent necessary to achieve the functions of punishment : whenever possible, punishment should preserve opportunities for the rational exercise of character and development of virtue. This means that even within a prison setting incarcerated offenders should be able to make some choices about their daily lives. Offenders should also be offered opportunities to develop virtuous traits through rehabilitative programming such as drug addiction treatment, educational programming, and job training. I will also argue that two contemporary punishment practices unjustly undermine an offender’s moral agency. The first is the overuse of isolation sanctions, which very severely limits offender choice-making. The second is chemical castration, which results in limiting an offender’s capacity to develop his character within a specific realm of choice-making. I conclude that these two punishments violate offenders’ moral agency, and that this violation cannot be justified by appeal to the aims of incapacitation, deterrence, retribution, and rehabilitation. (shrink)

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the (...) world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (shrink)

Most readers believe that it is difficult, verging on the impossible, to extract concrete prescriptions from the ethics of Emmanuel Levinas. Although this view is largely correct, Levinas’ philosophy can, with some assistance, generate specific duties on the part of legal actors. In this paper, I argue that the fundamental premises of Levinas’ theory of justice can be used to construct a prohibition against capital punishment. After analyzing Levinas’ concepts of justice, responsibility, and interruption, I turn toward his scattered (...) remarks on legal institutions, arguing that they enable a sense of interruption specific to the legal domain. It is here that we find the conceptual resources most important to my Levinasian abolition. I argue that the interruption of legal justice by responsibility implies what I call the principle of revisability. The principle of revisability states a necessary condition of just legal institutions: To be just, legal institutions must ensure the possibility of revising any and all of their rules, principles, and judgments. From this, the argument against capital punishment easily follows. Execution is a legal act, perhaps the only legal act, that cannot be undone. An application of the principle of revisability to this fact leads to the conclusion that legal institutions cannot justly impose capital punishment. After defending these points at length, I conclude with some observations on the consequences of the principle of revisability for law more generally. (shrink)

When Dominique Strauss-Kahn, then head of the IMF, was arrested on charges of sexual assault arising from events that were alleged to have occurred during his stay in an up-market hotel in New York, a sizeable portion of French public opinion was outraged - not by the possibility that a well-connected and widely-admired politician had assaulted an immigrant hotel worker, but by the way in which the accused had been treated by the American authorities. I shall argue that in one (...) relatively minor respect, Strauss-Kahn’s defenders were correct. They were correct to argue that the parading of Strauss-Kahn before the press, in handcuffs - the so-called perp walk - constituted a form of punishment; and thus that it contravened the principle that criminal punishments should only be administered after a fair trial. So-called ‘expressive’ theorists of punishment hold that a form of harsh treatment can only constitute a form of punishment if it has an expressive role. Within the expressive family, we can distinguish between views on which the primary target of the communication to be the society of which either offender, or victim, or both are members—what I call ‘Denunciatory Views’, and views which take the principle target of penal communication to be the offender—such as Antony Duff’s Communicative View. I shall argue that on both a minimal account of punishment and on either kind of expressive view, ‘perp walks’ are a form of punishment. (shrink)

T. M. Scanlon’s contractualism is a meta-ethical theory that explains moral motivation and also provides a conception of how to carry out moral deliberation. It supports non-consequentialism – the theory that both consequences and deontological considerations are morally significant in moral deliberation. Regarding the issue of punishment, non-consequentialism allows us to take account of the need for deterrence as well as principles of fairness, justice, and even desert. Moreover, Scanlonian contractualism accounts for permissibility in terms of justifiability: An act (...) is permissible if and only if it can be justified to everyone affected by it. This contractualist thesis explains why it is always impermissible to frame an innocent person, why vicarious punishment is impermissible, and why there has to be a cap on sentences. Contractualism therefore allows us to take deterrence as a goal of punishment without the excess of utilitarianism. This paper further argue that the resulting view is superior to pure retributivism. Finally, it shows why legal excuses and mitigation can be justified in terms of the notion of negative desert. (For access to this paper: http://www.tandfonline.com/eprint/sJ2JBVXkztyFMGmxS7tS/full ) . (shrink)

The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime (...) deserving of punishment, since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment. (shrink)

In The Problem of Punishment, David Boonin offers an analysis of punishment and an account of what he sees as ethically problematic about it. In this essay I make three points. First, pace Boonin's analysis, everyday examples of punishment show that it sometimes isn't harmful, but merely "discomforting." Second, intentionally discomforting offenders isn't uniquely problematic, given that we have cases of non-punitive intentional discomforture---and perhaps even harmful discomforture---that seem unobjectionable. Third, a notable fact about both non-harmful (...) class='Hi'>punishment and non-punitive intentional discomforture is that they aim at improving the subject. This suggests that, if the prima facie wrongness of intentionally harming another person is the fundamental challenge for punishment, the "educative defense" is the royal road to justifying the practice. I conclude by outlining one version of the educative defense that exploits this advantage while avoiding some traditional objections to the approach. (shrink)

Recently, David Boonin has put forward several objections to Carlos S. Nino's 'Consensual Theory of Punishment'. In this paper I will defend Nino against the 'explicit denial objection'. I will discuss whether Boonin's interpretation of Nino as a tacit consent theorist is right. I will argue that the offender's consent is neither tacit nor express, but a special category of implicit consent. Further, for Nino the legal-normative consequences of an act (of crime) are 'irrevocable', i.e. one cannot (expressly and (...) successfully) deny liability to them. I will suggest an explanation for Nino's irrevocability claim. (shrink)

Nathan Hanna has recently addressed a claim central to my 2013 article ‘Must Punishment Be Intended to Cause Suffering’ and to the second chapter of my 2016 book An Expressive Theory of Punishment: namely, that punishment need not involve an intention to cause suffering. -/- Hanna defends what he calls the ‘Aim To Harm Requirement’ (AHR), which he formulates as follows. AHR: ‘an agent punishes a subject only if the agent intends to harm the subject’ (Hanna 2017 (...) p969). I’ll try to show in this note that Hanna’s latest attempts to defend AHR fail. I’ll start by setting out my own view, drawing attention to one significant, but perhaps understandable, misstatement of Hanna’s. I’ll then discuss two alleged counter-examples that Hanna presents to my view, and show that they both fail in their own terms. I’ll also argue that, given assumptions that Hanna is willing to make a scenario closely related to one that Hanna presents counts against AHR. I’ll then discuss how significant it would be if these counter-examples were successful. My view is that it wouldn’t matter much, and that anyone attracted to abolitionism should agree. I’ll conclude with a brief discussion of Hart, which may be of interest to enthusiasts and Hart scholars. (shrink)

In this brief dialogue I consider the humanity and morality of the doctrine of eternal punishment.

The first part of this chapter defends the claim that the over-incarceration of disadvantaged social groups is unjust. Many arguments for penal reform are based on the unequal distribution of punishment, most notably disproportionate punishment of the poor and people of color. However, some philosophers use a noncomparative conception of desert to argue that the justice of punishment is independent of its distribution. On this view, which has significant influence in 14th Amendment jurisprudence, unequal punishment is (...) not unjust. After detailing the “noncomparativist challenge,” this chapter argues that Levinasian conceptions of desert enable a theory of penal justice according to which comparative considerations are essential. In so doing, it shows that the noncomparativist challenge can be met. The chapter concludes by considering whether Levinasian conceptions of desert and responsibility show members of socially advantaged groups to be more blameworthy for their wrongdoing than members of disadvantaged groups. (shrink)

In this paper I pursue two closely related objectives. First, I articulate and describe the nature and character of Hume's theory of punishment. Second, in light of this account, I offer an assessment of the contem- porary interest and value of Hume's theory. Throughout my discus- sion I emphasize the relevance and importance of Hume's views on moral responsibility to his account of punishment.1 More specifically, I argue that Hume seeks to develop an account of punishment on (...) the foundation of a naturalistic theory of responsibility - that is, a theory which draws our attention to the role of moral sentiment in this sphere.2 Although this naturalistic aspect of Hume's theory of punishment has been largely overlooked by commentators, I maintain that it is, nevertheless, precisely this aspect of Hume's theory that is especially interesting from a contemporary pers. (shrink)

David Boonin has recently advanced several challenges to the self-defense justification of punishment. Boonin argues that the self-defense justification of punishment justifies punishing the innocent, justifies disproportionate punishment, cannot account for mitigating excuses, and does not justify intentionally harming offenders as we do when we punish them. In this paper, I argue that the self-defense justification, suitably understood, can avoid all of these problems. To help demonstrate the self-defense theory’s attraction, I also develop some contrasts between the (...) self-defense justification, Warren Quinn’s better known ‘auto-retaliator’ argument, and desert-based justifications of punishment. In sum, I show that the self-defense justification of punishment is more resilient than commonly supposed and deserves to be taken seriously as a justification of punishment. (shrink)

A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution —holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of (...) his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located. (shrink)

What is cruelty? How and why does it matter? What do the legal rejection of cruelty and the requirements of mercy entail? This essay asks these questions of Lucius Seneca, who first articulated an agent-based conception of cruelty in the context of punishment. The hypothesis is submitted that the answers to these questions offered in Seneca's De clementia constitute one of the turning points in the evolution of practical reason in law. I conclude, however, by arguing that even the (...) mainstream punitive practices of contemporary western societies fail to meet the modest imperatives of the rejection of cruelty and the unconditionality of mercy propounded by Seneca. (shrink)

Arguments over criminalization and decriminalization often focus on the moral status of conduct, which is thought to be especially important to determining the appropriate legal status of the conduct. If the conduct is not thought to be immoral (or seriously immoral}, that is enough to show that it does not properly fall within the realm of control of the criminal law. Arguments relying on such a strategy may be termed moralized arguments. This article focuses on a crucial element of that (...) strategy of argument I call the subordination thesis. The subordination thesis is the thesis that the criminal law is normatively subordinate to morality because essential elements of criminal law are themselves conceptually dependent upon elements of morality, in particular punishment. The strategy of moralized arguments is to show that some sorts of conduct do (or do not) meet certain moral descriptions and therefore are (or are not) properly candidates for control by the criminal law. The success of such a strategy then turns on the subordination thesis, and a failure adequately to defend the thesis will prove fatal to the strategy of moralized arguments. The aim of this article is to show that the subordination thesis is untenable, that law is not a subordinate normative system. (shrink)

I argue that the evolutionary history of anger has substantive implications for normative ethics. In the process, I develop an evolutionary account of anger and its influence on action. First, I consider a prominent argument by Peter Singer and Joshua Greene. They conclude that evolutionary explanations of human cooperation debunk – or undercut the evidential value of – the moral intuitions supporting duty ethics (as opposed to utilitarian or consequentialist ethics). With this argument they aim to defend consequentialist theories. However, (...) their argument also threatens to debunk intuitions that support consequentialist theories. I give a novel argument that overcomes this difficulty. Specifically, I offer an evolutionary story about anger that can explain retributive, duty-oriented intuitions concerning punishment. This explanation debunks these intuitions (and not others) by showing that they were selected for their biological consequences rather than their accuracy (concerning duties to punish). I develop this explanation by raising and resolving three additional problems. First, prominent evolutionary explanations of retributive motives fail because they appeal to models that apply only to organisms with strategic insight. To mitigate this problem, I explain the existence of a retributive-like motive in rodents by appealing to an economic model of resource competition, which applies to organisms without strategic insight. Second, I show that human anger was shaped by resource competition of this kind. To do so, I develop evidential criteria to determine when psychological systems in different species share common evolutionary origins. I deploy these criteria to argue that human anger and the retributive motive in rodents derive from the same ancestral trait. Finally, the continuity of anger across human and nonhuman animals stands in tension with the idea that anger causes purposive behavior like retribution or retaliation. I argue that differences between the angry behaviors of human and nonhuman animals are differences in degree and not in kind. In the end, this evolutionary story both explains and undermines retributive intuitions, but not in the straightforward way that Singer and Greene suppose. (shrink)

Many philosophers have claimed that the folk endorse moral universalism. Some have taken the folk view to support moral universalism; others have taken the folk view to reflect a deep confusion. And while some empirical evidence supports the claim that the folk endorse moral universalism, this work has uncovered intra-domain differences in folk judgments of moral universalism. In light of all this, our question is: why do the folk endorse moral universalism? Our hypothesis is that folk judgments of moral universalism (...) are generated in part by a desire to punish. We present evidence supporting this across three studies. On the basis of this, we argue for a debunking explanation of folk judgments of moral universalism. Our results not only further our understanding of the psychological processes underpinning folk judgments of moral universalism. They also bear on philosophical discussions of folk meta-ethics. (shrink)

Reviews the history of the death penalty, traditional arguments for and against it, the contemporary debate including debates over whether it effectively deters, its constitutionality, and international trends in its use.