Violence risk assessment tools are increasingly used within criminal justice and forensic psychiatry, however there is little relevant, reliable and unbiased data regarding their predictive accuracy. We argue that such data are needed to (i) prevent excessive reliance on risk assessment scores, (ii) allow matching of different risk assessment tools to different contexts of application, (iii) protect against problematic forms of discrimination and stigmatisation, and (iv) ensure that contentious demographic variables are not prematurely removed from risk assessment tools.

There are a number of important links and similarities between public health and safety. In this extended essay, Gregg D. Caruso defends and expands his public health-quarantine model, which is a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. In developing his account, he explores the relationship between public health and safety, focusing on how social inequalities and systemic injustices affect health outcomes and crime rates, how poverty (...) affects brain development, how offenders often have pre-existing medical conditions (especially mental health issues), how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, how treatment and rehabilitation methods can best be employed to reduce recidivism and reintegrate offenders back into society, and how a public health approach could be successfully applied within the criminal justice system. Caruso's approach draws on research from the health sciences, social sciences, public policy, law, psychiatry, medical ethics, neuroscience, and philosophy, and he delivers a set of ethically defensible and practically workable proposals for implementing the public health-quarantine model. The essay begins by discussing recent empirical findings in psychology, neuroscience, and the social sciences that provide us with an increased understanding of the social and neurological determinants of health and criminal behavior. It then turns to Caruso's public health-quarantine model and argues that the model provides the most justified, humane, and effective approach for addressing criminal behavior. Caruso concludes by proposing a capability approach to social justice grounded in six key features of human well-being. He argues that we cannot successfully address concerns over public health and safety without simultaneously addressing issues of social justice—including the social determinants of health (SDH) and the social determinants of criminal behavior (SDCB)—and he recommends eight general policy proposals consistent with his model. (shrink)

According to a number of influential views in penal theory, 1 one of the primary goals of the criminal justice system is to rehabilitate offenders. Rehabilitativemeasures are commonly included as a part of a criminal sentence. For example, in some jurisdictions judges may order violent offenders to attend anger management classes or to undergo cognitive behavioural therapy as a part of their sentences. In a limited number of cases, neurointerventions — interventions that exert a direct biological effect (...) on the brain — have been used as aids to rehabilitation, typically being imposed as part of criminal sentences, separate treatment orders, or conditions of parole. Examples of such interventions include medications intended to attenuate addictive desires in substance-abusing offenders and agents intended to suppress libido in sex offenders.This chapter reviews some of the ethical issues raised by the use of neurointerventions as aids to rehabilitation. (shrink)

A central tenet of medical ethics holds that it is permissible to perform a medical intervention on a competent individual only if that individual has given informed consent to the intervention. However, in some circumstances it is tempting to say that the moral reason to obtain informed consent prior to administering a medical intervention is outweighed. For example, if an individual’s refusal to undergo a medical intervention would lead to the transmission of a dangerous infectious disease to other members (...) of the community, one might claim that it would be morally permissible to administer the intervention even in the absence of consent. Indeed, as we shall discuss below, there are a number of examples of public health authorities implementing compulsory or coercive measures for the purposes of infectious disease control (IDC). The plausibility of the thought that non-consensual medical interventions might be justified when performed for the purpose of IDC raises the question of whether such interventions might permissibly be used to realize other public goods. In this article we focus on one possibility: whether it could be permissible to non-consensually impose certain interventions that alter brain states or processes through chemical or physical means on serious criminal offenders. We shall suggest that some such interventions might be permissible if they safely and effectively serve to facilitate the offender’s rehabilitation and thereby prevent criminal recidivism. (shrink)

Automated decision making for sentencing is the use of a software algorithm to analyse a convicted offender’s case and deliver a sentence. This chapter reviews the moral arguments for and against employing automated decision making for sentencing and finds that its use is in principle morally permissible. Specifically, it argues that well-designed automated decision making for sentencing will better approximate the just sentence than human sentencers. Moreover, it dismisses common concerns about transparency, privacy and bias as unpersuasive or inapplicable. The (...) chapter also notes that moral disagreement about theories of just sentencing are plausibly resolved by applying the principle of maximising expected moral choiceworthiness, and that automated decision making is better suited to the resulting ensemble model. Finally, the chapter considers the challenge posed by penal populism. The dispiriting conclusion is that although it is in theory morally desirable to use automated decision-making for criminal sentencing, it may well be the case that we ought not to try. (shrink)

It is often thought that traditional recidivism prediction tools used in criminal sentencing, though biased in many ways, can straightforwardly avoid one particularly pernicious type of bias: direct racial discrimination. They can avoid this by excluding race from the list of variables employed to predict recidivism. A similar approach could be taken to the design of newer, machine learning-based (ML) tools for predicting recidivism: information about race could be withheld from the ML tool during its training phase, ensuring that (...) the resulting predictive model does not use race as an explicit predictor. However, if race is correlated with measured recidivism in the training data, the ML tool may ‘learn’ a perfect proxy for race. If such a proxy is found, the exclusion of race would do nothing to weaken the correlation between risk (mis)classifications and race. Is this a problem? We argue that, on some explanations of the wrongness of discrimination, it is. On these explanations, the use of an ML tool that perfectly proxies race would (likely) be more wrong than the use of a traditional tool that imperfectly proxies race. Indeed, on some views, use of a perfect proxy for race is plausibly as wrong as explicit racial profiling. We end by drawing out four implications of our arguments. (shrink)

The aim of this critical commentary is to distinguish and analytically discuss some important variations in which legal moralism is defined in the literature. As such, the aim is not to evaluate the most plausible version of legal moralism, but to find the most plausible definition of legal moralism. As a theory of criminalization, i.e. a theory that aims to justify the criminal law we should retain, legal moralism can be, and has been, defined as follows: the immorality of (...) an act of type A is a sufficient reason for the criminalization of A, even if A does not cause someone to be harmed. In what follows, I critically examine some of the key definitions and proposals that have, unfortunately, not always been carefully distinguished. Finally, I propose a definition that seems to capture the essence of what many philosophers refer to when they talk about legal moralism, while also providing more clarity. (shrink)

This article challenges the use of social deprivation as a punishment, and offers a preliminary examination of the human rights implications of exile and solitary confinement. The article considers whether a human right against coercive social deprivation is conceptually redundant, as there are recognised rights against torture, extremely cruel, inhumane, or degrading treatment as well as rights to basic health care, education, and security, which might encompass what this right protects. The article argues that the right is not conceptually redundant, (...) but that, even if it were, there would be significant reasons to articulate it. (shrink)

One proposed way of preserving the link between criminal negligence and blameworthiness is to define criminal negligence in moral terms. On this view, a person can be held criminally responsible for a negligent act if her negligence reflects a deficit of moral concern. Some theorists are convinced that this definition restores the link between negligence and blameworthiness, while others insist that criminal negligence remains suspect. This article contributes to the discussion by applying the work of ethicist Nomy (...) Arpaly to criminal negligence. Although not interested in legal issues herself, Arpaly has a well-developed theory of moral agency that explains moral concern in terms of responsiveness to moral reasons. Introducing her work to the ongoing scholarly debate will be helpful for two reasons. First, while a definition of negligence in terms of moral concern is recognized as one proposed solution to the negligence–blameworthiness problem, authors promoting it have yet to give a systematic account of moral concern and its relation to blame. Borrowing Arpaly's account will help clarify the idea of moral concern so that both proponents and critics of a concern approach to negligence can have a better-defined debate. Second, her theory of blameworthiness is especially suited to defending the blameworthiness of negligent actions, because it does not have recourse to a special quality of choice or self-control that must be active to render conduct blameworthy. To make this second advantage clear, the article argues that reliance on choice or self-control problematizes blameworthiness for negligence. Those who wish to defend blameworthiness for negligent acts should base their work on an account of moral agency that does not rely on either choice or self-control to explain when an action is blameworthy. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of (...) the record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

POLICE ETHICS – Abstract Mark Lauchs -/- Police are an essential part of the justice system. They are the frontline actors in keeping the peace, social stability and cohesion. Thus good governance relies on honest policing. However, there will always be at least a small group of corrupt police officers, even though Australians are culturally averse to corruption (Khatri, Tsang, & Begley, 2006). There have been many cases where the allegations of police corruption have reached to the highest (...) levels of a state police force (Blanch, 1982) and, in the case of the Fitzgerald Inquiry (Fitzgerald, 1989), ended in a commissioner being convicted of corruption. -/- Any public official who places their own interests before those of the public have corrupted a system in which they are supposed to act as agents of the public, will undermine the good governance of a society (Lauchs, 2007). Police officers attract offers of corruption because of their ability to enforce or ignore the law. Police who are unethical or in financial stress are vulnerable to offers of illicit payments. Longstanding arrangements of corruption within a police branch can lead to a corruption network between police and criminals. Organised police corruption constitutes “social behaviour, conducted in groups within organisations, that is powerful enough to override the officer’s oath of office, personal conscience, departmental regulations and criminal laws.” (Punch, 2000) it is an even greater threat to the community because the damage done has more impact than the sum of the individual acts of corruption. This chapter will discuss the types of police corruption and focus on the organisation as the source of core police culture. -/- . (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)

The creation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in 1973 has significantly altered the dynamics of trade in fauna and flora. Despite this effort, curbing of criminal trade in endangered species of wild fauna and flora has remained a key challenge for some countries. The objective of this study was to identify and establish the trafficking routes of illegal wildlife and forest products, analyzing the patterns and trends of wildlife and (...) forest crime including their drivers, actors and modus operandi, and assessing the criminal justice response including the legislative, enforcement, prosecutorial and judicial systems. The analysis was based on the methodologies and principles embedded in African environmental ethics. It was concluded that African ethics allows for ‘sustainable poaching’ under the framework of Eco-Afrocentricism; but condemns poaching done for trafficking purposes. Five canons of sustainability were developed to guide ‘sustainable poaching’. African capitalism thesis was used to support the analysis from political and economic perspectives. (shrink)

This Note examines whether, and at which stages, a criminal defendant should be permitted to offer genetic evidence of a predisposition to psychopathy. Drawing on multidisciplinary sources, including the work of legal scholars, neurobiologists, psychologists, and medical researchers, the Note discusses psychopathy, its symptoms, and how it is measured, along with the proposed genetic and environmental causes of the disorder. The Note then examines current evidence rules and trends in the admissibility of genetic evidence at the guilt/innocence phase of (...) criminal trials and at sentencing. After discussing the potential effects of admitting evidence of a genetic basis for psychopathy at both of these phases, the Note concludes that the stigmatizing nature of the disorder and the uncertainty over its causes make it inadvisable to admit this type of evidence at the guilt/innocence phase of trial. However, admitting this evidence at sentencing is not objectionable. (shrink)

Adults' judgments regarding punishment can have important social ramifications. However, the origins of these judgments remain unclear. Using the legal system as an example domain in which people receive punishment, the current work employed two complementary approaches to examine how punishment-related concepts emerge. Study 1 tested both 6- to 8-year-olds and adults to ascertain which components of “end-state” pun- ishment concepts emerge early in development and remain stable over time, and which components of pun- ishment concepts change with age. Children, (...) like adults, agreed with and spontaneously generated behavioral explanations for incarceration. However, children were more likely than adults to attribute incarceration to internal characteristics. Neither children nor adults reported that incarceration stems from societal-level factors such as poverty. Study 2 built on the results of Study 1 by probing the extent to which early punishment-related concepts in the legal domain emerge from a specific form of social experience—namely, parental incarceration. Children of incarcerated parents, like children whose parents were not incarcerated, were more likely to re- ference internal and behavioral factors than societal factors when discussing why people come into contact with the justice system. Taken together, these studies clarify how punishment-related concepts arise and therefore contribute to theories of moral psychology, social cognitive development, and criminal justice. (shrink)

Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he (...) didn’t? -/- This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to see defendants like George Zimmerman be forced to “pay” for the harms that they needlessly and culpably inflict on others. While this point may seem obvious, it isn’t. Most people repudiate revenge and therefore the notion that it plays any role in the criminal justice system. -/- Second, this attitude toward revenge is misguided and needs to change. We need to recognize that vengeance not only does but should play a significant role in motivating criminal punishment. Our vengeful reactions to harmful crimes are not ugly or shameful; on the contrary, they manifest a deep valuation of victims and a bitter denunciation of individuals who actively renounce this valuation through their criminal behavior. -/- Third, these two points have significant implications for the two main theories of criminal punishment: “retributivism,” which says that criminals should be punished in order to give them their “just deserts,” and “consequentialism,” which says that criminals should be punished in order to bring about such good consequences as deterrence, incapacitation, and rehabilitation. Traditionally, these two theories have been at war with one another. But I will show how recognizing revenge as a motivation and justification for punishment can help to end this war and bring these two theories together. (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.

Plea bargains are the stock-in-trade of the modern American prosecutor’s office. The basic scenario, wherein a defendant agrees to plea guilty in exchange for a reduced sentence, is familiar to viewers of police procedurals. In an equally famous variation on the theme, the prosecutor requests something more than an admission of guilt: leniency will only be forthcoming if the defendant is willing to cooperate with the prosecutor in securing the conviction of another suspect. In some of these cases, the defendant (...) is a low-level criminal who has information on a high-level malefactor who is of more interest to the police. In others, the defendant and the person she is asked to testify against are of the same criminal rank, but evidentiary weaknesses induce the prosecutor to seek the aid of one suspect in order to convict the other. In this latter version, the classic tactic of film detectives is to offer the bargain to both defendants in the hopes that one will crack and agree to reveal what he knows about the other. The defendants could either be in custody for different crimes or be accomplices in the same offense. -/- The last variation (involving accomplices) is the subject of this Article. I take issue with the prosecutorial tactics in these cases because of the risk they create of punishing the comparatively virtuous person more than the comparatively vicious one for the same acts. As I will argue, it is the less honest person who is more likely to accept the prosecutor’s deal, leading the more honest person, who resisted temptation, to suffer greater penalties. -/- I contend that this scenario offends distributive justice, runs counter to the idea (accepted by some) that a proper goal of the state is the cultivation of good character in the citizenry, and is perverse insofar as a person will suffer more from the prosecutor's dilemma insofar as she is more or less a person of conscience. These negative considerations notwithstanding, I do not call for the abolition of accomplice plea bargaining but argue that the problems I raise should be considered when weighing its pros and cons. -/- This article was published in the company of a strong critical response by Guha Krishnamurthi, whose contribution I greatly appreciate. (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.

Advances in forensic techniques have expanded the temporal horizon of criminal investigations, facilitating investigation of historic crimes that would previously have been considered unsolvable. Public enthusiasm for pursuing historic crimes is exemplified by recent high-profile trials of celebrities accused of historic sexual offences. These circumstances give new urgency to the question of how we should decide which historic offences to investigate. A satisfactory answer must take into account the ways in which the passage of time can erode the benefits (...) of criminal investigation, the costs associated with investigating old crimes, and the need to prioritize investigations in the face of limited police resources. This article emphasizes the first of these factors. It begins by considering the moral goals of a criminal justice system and the contribution of criminal investigations to the achievement of these goals, distinguishing between contributions that depend on further steps in the criminal justice process, such as prosecution and punishment, and contributions that can have value independently of these further steps. Using this important distinction, the article then examines a range of factors that relate the passage of time to criminal justice goals, including the seriousness of the crime; deterioration of evidence; death of the offender, victim and others affected by the crime; and diminished psychological connectedness between those affected by the crime and their current selves. While the range and non-uniformity of relevant factors preclude a simple answer to the question of when historic crimes should be investigated and call instead for case-by-case assessment, we find that the analysis does support some general conclusions that can guide such an assessment. (shrink)

This essay offers an answer to the question of what societies afflicted by atrocities ought to transition into. The answer offered is able to better direct the evaluation of previous models and the design of new models of transitional justice. -/- Into what, then, should transitional justice transition? I argue in this essay that transitional justice should be a transition into the political, understood in its robust liberalism version. I further argue that the most significant part of (...) transitions ought to happen in the minds of the members of political communities, precisely where the less tangible and yet most important dimension of the political sets root. Both of these points are missing in transitional justice models and debates. In the current scenario of transitional justice models and debates, transitional justice practices and processes, as well as the normative forms of discourse that accompany them, fail to fully take the political as an end, thus failing in both transition and justice. (shrink)

This article analyses proportionality as a potential element of a theory of morally justified surveillance, and sets out a teleological account. It draws on conceptions in criminal justice ethics and just war theory, defines teleological proportionality in the context of surveillance, and sketches some of the central values likely to go into the consideration. It then explores some of the ways in which deontologists might want to modify the account and illustrates the difficulties of doing so. Having (...) set out the account, however, it considers whether the proportionality condition is necessary to a theory of morally justified surveillance. The article concludes that we need and should apply only a necessity condition, but notes that proportionality considerations may retain some use in in practice, as a form of coarse‐grained filter applied before assessing necessity when deliberating the permissibility of potential forms of surveillance. (shrink)

The current debate on closed-loop brain devices (CBDs) focuses on their use in a medical context; possible criminal justice applications have not received scholarly attention. Unlike in medicine, in criminal justice, CBDs might be offered on behalf of the State and for the purpose of protecting security, rather than realising healthcare aims. It would be possible to deploy CBDs in the rehabilitation of convicted offenders, similarly to the much-debated possibility of employing other brain interventions in this (...) context. Although such use of CBDs could in principle be consensual, there are significant differences between the choice faced by a criminal offender offered a CBD in the context of criminal justice, and that faced by a patient offered a CBD in an ordinary healthcare context. Employment of CBDs in criminal justice thus raises ethical and legal intricacies not raised by healthcare applications. This paper examines some of these issues under three heads: autonomy, human rights, and accountability. (shrink)

About 80 % of all convicted have had a prior record of conviction. But how should the state punish repeat offenders (with a prior conviction) as compared with first-time offenders who are convicted? The law in all jurisdictions, a large swathe of public opinion, and the general trend within criminal justice ethics all seem to accept what we may call: -/- Asymmetry A The punishment of repeat offenders should be harsher than the punishment of first-time offenders. -/- (...) This asymmetry is obviously just a rough structure. It leaves a lot of room for interpretation. Several retributivists have argued for progressive loss of mitigation (PLM). On this view, a first-time offender receives a discount on punishment that is gradually lost if he re-offends. When the discount is lost the offender receives the full punishment, and re-offending from that point on will be punished equally. However, recently some retributivists have argued in favour of a cumulative principle (CP) according to which an offender will progressively be punished more severely the more convictions he has accumulated. In sum, in the theoretical literature on the subject, Asymmetry A has been the mantra for several prominent retributivists. The aim of this paper is to point to an all but overlooked logical point in the discussion of punishment and recidivism. This is the point that it follows, from retributivism, that there is a reason - at least in some situations, as we shall see - to support what we may call: -/- Asymmetry B The punishment of repeat offenders should be more lenient than the punishment of first-time offenders. (shrink)

A collection of original and innovative essays that compare the justice issues raised by climate engineering to the justice issues raised by competing approaches to solving the climate problem.

This book analyzes major ethical issues surrounding the use of climate engineering, particularly solar radiation management techniques, which have the potential to reduce some risks of anthropogenic climate change but also carry their own risks of harm and injustice. The book argues that we should approach the ethics of climate engineering via "non-ideal theory," which investigates what justice requires given the fact that many parties have failed to comply with their duty to mitigate greenhouse gas emissions. Specifically, it (...) argues that climate justice should be approached comparatively, evaluating the relative justice or injustice of feasible policies under conditions that are likely to hold within relevant timeframes. Likely near-future conditions include "pessimistic scenarios," in which no available option avoids serious ethical problems. The book contends that certain uses of SRM can be ethically defensible in some pessimistic scenarios. This is the first book devoted to the many ethical issues surrounding climate engineering. (shrink)

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view (...) per se face significant independent moral objections (Pereboom 2014: 153). Despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular incapacitation, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s (2001, 2013, 2014), taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health-quarantine model (Caruso 2016, 2017a)—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own since it prioritizes prevention and social justice. -/- In Section 1, I begin by (very) briefly summarizing my arguments against free will and basic desert moral responsibility. In Section 2, I then introduce and defend my public health-quarantine model, which is a non-retributive alternative to criminal punishment that prioritizes prevention and social justice. In Sections 3 and 4, I take up and respond to two general objections to the public health-quarantine model. Since objections by Michael Corrado (2016), John Lemos (2016), Saul Smilanksy (2011, 2017), and Victor Tadros (2017) have been addressed in detail elsewhere (see Pereboom 2017a; Pereboom and Caruso 2018), I will here focus on objections that have not yet been addressed. In particular, I will respond to concerns about proportionality, human dignity, and victims’ rights. I will argue that each of these concerns can be met and that in the end the public health-quarantine model offers a superior alternative to retributive punishment and other non-retributive accounts. (shrink)

Kant divides moral duties into duties of virtue and duties of justice. Duties of virtue are imperfect duties, the fulfillment of which is left to agent discretion and so cannot be externally demanded of one. Duties of justice, while perfect, seem to be restricted to negative duties (of nondeception and noncoercion). It may seem then that Kant's moral philosophy cannot meet the demands of global justice. I argue, however, that Kantian justice when applied to the social (...) and historical realities of the world can generate positive duties to promote and provide for the well being of others. (shrink)

In this article, I contribute to the debate between two philosophical traditions—the Kantian and the Aristotelian—on the requirements of criminal responsibility and the grounds for excuse by taking this debate to a new context: international criminal law. After laying out broadly Kantian and Aristotelian conceptions of criminal responsibility, I defend a quasi-Aristotelian conception, which affords a central role to moral development, and especially to the development of moral perception, for international criminal law. I show than an (...) implication of this view is that persons who are substantially and non-culpably limited in their capacity for ordinary moral perception warrant an excuse for engaging in unlawful conduct. I identify a particular set of conditions that trigger this excuse, and then I systematically examine it as applied to the controversial case of former-child-soldier-turned leader of the Lord’s Resistance Army, Dominic Ongwen, who is currently at trial at the International Criminal Court. (shrink)

One of the most frequently voiced criticisms of free will skepticism is that it is unable to adequately deal with criminal behavior and that the responses it would permit as justified are insufficient for acceptable social policy. This concern is fueled by two factors. The first is that one of the most prominent justifications for punishing criminals, retributivism, is incompatible with free will skepticism. The second concern is that alternative justifications that are not ruled out by the skeptical view (...) per se face significant independent moral objections. Yet despite these concerns, I maintain that free will skepticism leaves intact other ways to respond to criminal behavior—in particular preventive detention, rehabilitation, and alteration of relevant social conditions—and that these methods are both morally justifiable and sufficient for good social policy. The position I defend is similar to Derk Pereboom’s, taking as its starting point his quarantine analogy, but it sets out to develop the quarantine model within a broader justificatory framework drawn from public health ethics. The resulting model—which I call the public health -quarantine model—provides a framework for justifying quarantine and criminal sanctions that is more humane than retributivism and preferable to other non-retributive alternatives. It also provides a broader approach to criminal behavior than Pereboom’s quarantine analogy does on its own. (shrink)

NOTE: This material is forthcoming in revised form in Algorithms & Autonomy: The Ethics of Automated Decision Systems by Alan Rubel, Clinton Castro, and Adam Pham (Cambridge University Press). This version is free to view and download for private research and study only. It is not for re-distribution or re-use. Please cite to the final version when available. © Alan Rubel, Clinton Castro, and Adam Pham. ABSTRACT: One important criticism of algorithmic systems is that they lack transparency. Such systems (...) can be opaque because they are complex, protected by patent or trade secret, or deliberately obscure. In the EU, there is a debate about whether the General Data Protection Regulation (GDPR) contains a “right to explanation,” and if so what such a right entails. Our task in this chapter is to address this informational component of algorithmic systems. We argue that information access is integral for respecting autonomy, and transparency policies should be tailored to advance autonomy. To make this argument we distinguish two facets of agency (i.e., capacity to act). The first is practical agency, or the ability to act effectively according to one’s values. The second is what we call cognitive agency, which is the ability to exercise what Pamela Hieronymi calls “evaluative control” (i.e., the ability to control our affective states, such as beliefs, desires, and attitudes). We argue that respecting autonomy requires providing persons sufficient information to exercise evaluative control and properly interpret the world and one’s place in it. We draw this distinction out by considering algorithmic systems used in background checks, and we apply the view to key cases involving risk assessment in criminal justice decisions and K-12 teacher evaluation. (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)

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)

This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until recently, both concepts were (...) considered to be more or less interchangeable. But there is a growing movement, which I refer to as "responsibility skepticism," which maintains that moral responsibility is either physically or metaphysically impossible. If the responsibility skeptics are right (that moral responsibility is impossible), then what are the implications for criminal responsibility and just criminal punishment? Should we abandon these as well? Or can they survive without moral responsibility? I try to answer these questions. -/- The third part addresses social causation. The criminal justice system tends to be "dispositionalist"; it tends, that is, to assume that criminal responsibility resides entirely within the defendant. Dispositionalism, however, overlooks the fact that who we are and what we do are significantly determined by environmental influences. I then try to show that this "situationist" alternative to dispositionalism should not radically alter our approach to criminal punishment. -/- The final part briefly discusses the difficulty in evaluating criminal responsibility when the defendant is both an offender and a victim - especially when the defendant is an offender *because* of his victimization. (shrink)

Morality is traditionally understood as comprised of two components: justice and mercy. The first component, justice, the universal component of the form, is frequently seen as foundational for any moral system – which poses a challenge of explaining the second component, mercy, the particular component of content. Kantian ethics provides an example of this approach. After formulating his universalist theory of ethics in the Groundwork of the metaphysics of morals and further developing it in the Critique (...) of practical reason, he attempts to use it in order to establish the morality of mercy in the Metaphysics of morals. Yet can universal morality of justice necessitate particular ethics of mercy? Using the example of competitive games, the relations between the ethics of justice and that of mercy are demonstrated, and it is shown that the former does not lead to the latter. Moreover, the universality of the rules of moral behavior can serve as a form for blatant brutality. Analyzing the characteristics of particular morality, we can conclude that physical humanity of the moral object, perceived as such by the subject, is a required condition for mercy. Removal of object's humanity is a necessary step toward an ethical system that allows cruelty – a system that can still be based on universal moral rules. Bhagavad Gītā, on the other hand, can be seen as an example of combining nīṣkāmakarma, the formal, universal ethics of desireless action, with a variety of particular motivations originating in the nature and social context of the moral agent. (shrink)

This chapter discusses how justice applies to public health. It begins by outlining three different metrics employed in discussions of justice: resources, capabilities, and welfare. It then discusses different accounts of justice in distribution, reviewing utilitarianism, egalitarianism, prioritarianism, and sufficientarianism, as well as desert-based theories, and applies these distributive approaches to public health examples. Next, it examines the interplay between distributive justice and individual rights, such as religious rights, property rights, and rights against discrimination, by discussing (...) examples such as mandatory treatment and screening. The chapter also examines the nexus between public health and debates concerning whose interests matter to justice (the “scope of justice”), including global justice, intergenerational justice, and environmental justice, as well as debates concerning whether justice applies to individual choices or only to institutional structures (the “site of justice”). The chapter closes with a discussion of strategies, including deliberative and aggregative democracy, for adjudicating disagreements about justice. (shrink)

Using a time-lagged design, we tested the main effects of Islamic Work Ethic (IWE) and perceived organizational justice on turnover intentions, job satisfaction, and job involvement. We also investigated the moderating influence of IWE in justice–outcomes relationship. Analyses using data collected from 182 employees revealed that IWE was positively related to satisfaction and involvement and negatively related to turnover intentions. Distributive fairness was negatively related to turnover intentions, whereas procedural justice was positively related to satisfaction. In addition, (...) procedural justice was positively related to involvement and satisfaction for individuals high on IWE however it was negatively related to both outcomes for individuals low on IWE. For low IWE, procedural justice was positively related to turnover intentions, however it was negatively related to turnover intentions for high IWE. In contrast, distributive justice was negatively related to turnover intentions for low IWE and it was positively related to turnover intentions for high IWE. (shrink)

This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. -/- No one should be neutral in relation to cruelty. Eminently, cruelty (...) in criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of private and public actors. It is in this sense that cruelty is a problem of practical reason, one of action preoccupied with its legal or moral obligations, rational grounds, value commitments, and actual consequences. -/- However, the connection between conceptions of cruelty and the implications practical reason can draw from the correct application of a conception of cruelty to phenomena in the world remains too detached to be able to capture and explain people's actual experiences both of seeing cruelty in the world and of confronting the question of what to do about cruelty and how to address its cultural and institutional aspects. Something is missing. -/- What is missing is the integration of conceptions of cruelty and the practical reason implications of detecting cruelty in the world into normative models which operate as meaning matrixes for cognition, meaning, and action. This Article undertakes this explanatory task through an exercise of reconstructing seminal philosophical ideas about cruelty. The result is that the four conceptions of cruelty are placed within three distinct normative models, which ultimately render intelligible legal conceptions of cruelty and legal reactions to it. (shrink)

This paper explores two ideas in Aristotle: the idea that a just person is necessarily a lawful and law-abiding citizen, and second, the idea that the virtuous person necessarily cares about the common good. In this paper, I show that justice and its concern for the common good is central to Aristotle’s conception of the virtuous agent, and that justice, in turn, cannot be understood apart from the various laws that states devise for the common benefit.

Many suggest that we should look backward and measure the differences among various parties' past emissions of greenhouse gases to allocate moral responsibility to remedy climate change. Such backward-looking approaches face two key objections: that previous emitters were unaware of the consequences of their actions, and that the emitters who should be held responsible have disappeared. I assess several arguments that try to counter these objections: the argument from strict liability, arguments that the beneficiary of harmful or unjust emissions should (...) pay, and arguments from distributive justice. I argue that none of these successfully justify a backward-looking approach to the temporally remote portion of the climate burden. (shrink)

This paper argues that societal duties of health promotion are underwritten (at least in large part) by a principle of beneficence. Further, this principle generates duties of justice that correlate with rights, not merely “imperfect” duties of charity or generosity. To support this argument, I draw on a useful distinction from bioethics and on a somewhat neglected approach to social obligation from political philosophy. The distinction is that between general and specific beneficence; and the approach from political philosophy has (...) at times been called equality of concern. After clarifying the distinction and setting out the basis of the equality of concern view, I argue that the result is a justice-based principle of “specific” beneficence that should be reflected in a society’s health policy. I then draw on this account to criticize, refine, and extend some prominent health care policy proposals from the bioethics literature. (shrink)

I propose, defend and illustrate a principle of gender justice meant to capture the nature of a variety of injustices based on gender: A society is gender just only if the costs of a gender-neutral lifestyle are, all other things being equal, lower than, or at most equal to, the costs of gendered lifestyles. The principle is meant to account for the entire range of gender injustice: violence against women, economic and legal discrimination, domestic exploitation, the gendered division of (...) labor and gendered socialization. The sense of “costs” employed is similarly wide. Costs can be material , psychological and social . I defend the principle by appeal to the values at the core of liberal egalitarian justice: equality of access and the good of individual choice. I illustrate my case through a discussion of the injustice of a gendered division of labor. Some feminists doubt that liberal egalitarianism has the theoretical resources to recognize the unjust nature of the gendered division of labor. I argue that it does. If the principle advanced here is correct, then gender injustice is pervasive. At the same, it does not affect only women but also men. Liberal egalitarianism is capable of acknowledging this fact without denying that, overall, gender norms oppress women more than they oppress men: Arguably, women who wish to lead a gender-neutral lifestyle have to pay higher costs that men who wish to do the same. (shrink)

A large portion of normative philosophical thought on immigration seeks to address the question “What policies for admitting and excluding foreigners may states justly adopt?” This question places normative philosophical discussions of immigration within the boundaries of political philosophy, whose concern is the moral assessment of social institutions. Several recent contributions to normative philosophical thought on immigration propose to answer this question, but adopt methods of reasoning about possible answers that might be taken to suggest that normative philosophical inquiry about (...) immigration belongs to the field of ethics, whose concern is the moral assessment of individual action and character. This paper focuses particularly on recent work by Christopher Heath Wellman and Kieran Oberman, both of whom attempt to derive conclusions about the justice of aspects of states’ immigrant admissions policies from answers to the question “Is it morally permissible for person P to migrate internationally?” I argue in this paper that such individualist ethical approaches to normative philosophical reasoning about states’ immigration policies obscure factors consideration of which is indispensable for assessing their justice, producing misguided policy recommendations. These factors include the global structural causes of international migration, and the role wealthy receiving countries of the global North play in shaping these causes – factors that are better appreciated by political philosophy than by ethics, given the respective objects of concern of each. (shrink)

In Ethics for a Broken World : Imagining Philosophy after Catastrophe, Tim Mulgan applies a number of influential moral and political theories to a “broken world ”: a world of environmental catastrophe in which resources are insufficient to meet everyone’s basic needs. This paper shows that John Rawls’ conception of justice as fairness has very different implications for a broken world than Mulgan suggests it does. §1 briefly summarizes Rawls’ conception of justice, including how Rawls uses a (...) hypothetical model – the “original position” – to argue for principles of justice. §2 explains how Mulgan uses a variation of Rawls’ original position – a broken original position – to argue that justice as fairness requires a “fair survival lottery” in a broken world. §3 shows that the parties to a broken original position have reasons not to agree to such a survival lottery. §4 then shows that Mulgan’s argument hangs upon a false assumption: that there are no viable options to adopt in a broken world besides some kind of survival lottery. Finally, §5 shows that the parties to a broken original position would instead rationally agree to a scheme of equal rights and opportunities to earn or forfeit shares of scarce resources on the basis of each person’s comparative contribution to human survival. (shrink)