Punishment

Prisoners, those who probably engaged in criminal activities, might possess different perceptions and notions of moral foundations than non-prisoners. Thus, assessing such foundations among the population without testing the validity of the measure may produce biased outcomes. To address the potential methodological issue, we examined the validity of the measurement model for moral foundations among prisoners and community members, i.e., non-prisoners. We conducted the measurement invariance test and measurement alignment to test whether the model was consistently valid across the groups. (...) We also employed the differential item functioning test to examine whether item responses were not biased between the different populations. Results demonstrated significant measurement non-invariance and differential item functioning. However, measurement alignment could address the non-invariance issue. Between-group comparisons of moral foundations were consistent with findings from prior research after performing the alignment. (shrink)

Many punishment theorists think that legal punishment is morally justified because it can deter certain kinds of bad behavior. Critics of this justification often object that legally punishing people for this purpose uses them in a morally objectionable way. I defend an especially challenging version of the use objection. And I show how it can be modified to create problems for those who think that there’s an easy way to evade standard versions of the use objection.

This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.

I defend a deontological social contract justification of punishment for free will deniers. Even if nobody has free will, a criminal justice system is fair to the people it targets if we would consent to it in a version of original position deliberation (OPD) where we assumed that we would be targeted by the justice system when the veil is raised. Even if we assumed we would be convicted of a crime, we would consent to the imprisonment of violent criminals (...) if prison conditions were better than the state of nature but deterring enough to prevent the state of nature. And even if we assumed we would be accused of a crime, we would consent to an evidentiary standard low enough to allow a conviction rate sufficient to prevent the state of nature. After explaining this justification, I contrast it with the public health quarantine justification defended by Derk Pereboom and Gregg Caruso, and argue that it provides a stronger response to the using criminals as mere means objection. (shrink)

Two-tiered mixed theories of punishment hold that legislatures should act according to consequentialism, but the judiciary should act according to retributivism. A major motivation for these theories is wanting to preserve the idea that punishment is ultimately justified on consequentialist grounds, without falling prey to the Punishing the Innocent objection. Yet this benefit is illusory. While two-tiered mixed theories successfully avoid the Punishing the Innocent objection narrowly construed, they do not successfully escape the point behind it. This is because cases (...) can be constructed with the same problems as those used to describe the classic Punishing the Innocent objection, just bumped up to the legislature. (shrink)

This paper examines the practice of using predictive systems to lengthen the prison sentences of convicted persons when the systems forecast a higher likelihood of re-offense or re-arrest. There has been much critical discussion of technologies used for sentencing, including questions of bias and opacity. However, there hasn’t been a discussion of whether this use of predictive systems makes sense in the first place. We argue that it does not by showing that there is no plausible theory of punishment that (...) supports it. (shrink)

Derk Pereboom’s book, Wrongdoing & the Human Emotions, addresses how we ought to respond to wrongdoing given the lack of basic-desert moral responsibility, falsity of retributivism, and the metaphysical and moral problems with moral anger. The book is outstanding. Pereboom’s arguments are important, interesting, powerful, and very well-written. Despite this, his specific arguments fail because basic-desert responsibility-skepticism makes non-consequentialism is false.

When Restorative Justice (RJ) underwent a renaissance in the 1990’s and early 2000’s, the arguably dominant view was that RJ was a radical departure from punishment, a non-penal method for holding offenders accountable. However, there is a movement afoot to conceptualize RJ differently—not as an alternative to punishment, but as an unconventional form of punishment. This paper contends that assimilating RJ to punishment is a mistake twice over. First, RJ is just conceptually distinct from punishment. Second, the things that make (...) RJ conceptually distinct have important moral implications. Retributivists—or, at least, retributivists who emphasize the importance of respecting offenders and denouncing wrongdoing—should support RJ over punishment in all cases where RJ would be appropriate. Punishing when RJ is a live option is, in a surprising turn, to offend against core retributive values. (shrink)

In Punishment for the Greater Good, Adam Kolber defends consequentialism as a better justification for punishment than retributivism. Here we reject the dichotomy and seek to motivate expressivism as a genuine alternative. According to expressivism, what justifies punishment is its expression of a fitting message. We show how expressivism can be developed to avoid Kolber’s objections to retributivism, while having a number of advantages over his preferred consequentialism.

As several scholars have argued, far from being antithetical to American values, the torture of nonwhite peoples has long been a method through which the United States has enforced (at home and abroad) a conception of what I will call “white moral citizenship." What is missing from this literature, however, is an exploration of the role that the erasure of torture, and the political and public narratives that are used to justify torture, plays in this function. -/- As I will (...) demonstrate in this article, the erasure of American torture takes at least three different but mutually reinforcing forms: erasure of the fact of torture, erasure of the experience of torture, and erasure of the victims of torture. Erasure of the fact of torture occurs when lack of education and public discussion creates widespread ignorance about the history of torture in America, as has occurred in relation to the post-9/11 torture program. Erasure of the experience of torture occurs when victims’ experiences of extreme suffering, and practices or institutions that inflict extreme suffering (such as solitary confinement), are not acknowledged as forms of torture. Erasure of the victims of torture occurs when victims are treated with indifference and even contempt, even when what they suffered is acknowledged to be torture, and their perspectives and experiences are dismissed, minimized, or ignored. -/- As I shall argue, both the use of the torture and the forms of erasure described above are essential components in the ongoing enforcement of the normative boundaries of American white moral citizenship and the myth of American exceptionalism and civilization. The repeating pattern of the use and erasure of torture leads to the ongoing toleration of practices that constitute torture and that overwhelmingly impact people of color. Until this pattern of justification and erasure is recognized and confronted, torture will continue to be embedded within American culture and institutions. (shrink)

This chapter challenges the coherence of the purely retributivist framework of justifying more lenient punishment for juvenile offenders relative to adults for identical crimes. We begin by discussing three theses which, in our opinion, distinguish retributivist from other justifications of punishment and point to an exception from two of them which retributivists commonly grant: namely, that juvenile offenders should be treated differently than adults by the criminal legal systems for the same crimes and be subject to more lenient punitive, non-punitive, (...) or a complex of punitive and non-punitive measures. While intuitively plausible, we claim that retributivists are far from being at ease with the reasons for the exception. We consider two responses they commonly offer: the arguments from (a) moral responsibility and (b) participation in a political community, but conclude that none of them offers a plausible justification for the ascription of more lenient punishment to young offenders of criminal age. In the last section, we start from the retributivist failure to justify the differential treatment and argue that our intuition for lesser punishment of children should be justified based on forward-looking considerations, unavailable to pure retributivists, which we believe in some circumstances also grant lesser punishment to adults as well. (shrink)

Children are treated differently compared to adults in many domains, including in health care, education, employment, and criminal justice. The differential treatment of children—to adults, and in the case of younger children and adolescents, to each other—makes it both practically and theoretically important to examine the justification of when and why this treatment is permissible. Because the justifications of children’s differential treatment typically appeal to foundational normative considerations—matters of autonomy, responsibility, and well-being—they provoke considerable controversy and disagreement in law and (...) ethics, especially, though not exclusively in the contexts of health care, sexual relations, and criminal justice. Consenting Children brings together philosophers and academic lawyers to grapple with these matters and domains and to share disciplinary and interdisciplinary insights and understanding. The volume’s contributors engage in deep and fruitful discussions of children’s consent and responsibility, decision-making capacity and best interests, as well as the role, powers, and duties of parents and state institutions. The volume lays the groundwork for future engagement in the legal and philosophical literature with the controversies raised by children’s autonomy, responsibility, and well-being, and the myriad interactions between them concerning children’s consent. (shrink)

There is an ethics of blaming the person who deserves blame. The Christian scriptures imply the following no-vengeance condition: a person should not vengefully overtly blame a wrongdoer even if she gives the wrongdoer the exact negative treatment that he deserves. I explicate and defend this novel condition and argue that it demands a revolution in our blaming practices. First, I explain the no-vengeance condition. Second, I argue that the no-vengeance condition is often violated. The most common species of blame (...) involves anger; anger conceptually includes a desire for vengeance; and there are many pleasures in payback. Third, I clarify that it is possible to blame non-vengefully in anger and highlight three good uses for anger in non-vengeful blame. Fourth, I offer two reasons that justify the divine command prohibiting vengeance, and I note that the Christian God is merely sufficient to make non-vengeance morally obligatory. Fifth, I defend the no-vengeance condition against four biblical objections. (shrink)

Philosophers have long been debating the moral justifiability of punishment. However, they have seemingly ignored the adjacent question concerning the moral justifiability of incarceration, as demonstrated by the dearth of philosophical work on prison abolitionism. This silence is puzzling, given that, on closer examination, many philosophers implicitly (or even explicitly) endorse the core assumptions of prison abolitionism. By discussing some examples in the recent literature in philosophy of punishment, I argue that philosophers support prison abolitionism in practice, but not in (...) theory. They endorse the practical strategies in the abolitionist agenda, yet refuse to engage with the normative assumptions that ground them. This ambiguity stems from a deliberate methodological choice that relegates issues concerning the reality of prisons to the margins of the philosophical inquiry. In doing so, philosophers hinder a fair assessment of prison abolitionism as a legitimate moral theory in criminal justice. (shrink)

Pessimistic empirical evidence about the reformatory and deterrent effects of punitive treatment poses a challenge for all justificatory theories of punishment. Yet, the dominant progressive view remains that punishment is required for the most serious crimes. This paper outlines an empirically sensitive prospectus for justifying punitive treatment through understanding the importance of reintegration. On this view, punishment can be viewed as a preferred alternative to the rigours of social ostracism, a common way of dealing with offenders in lieu of formal (...) criminal justice. Adopting reintegration as a primary aim encourages taking a longer view which focuses on desistance from criminality rather than only on reform at the point of release from formal punishment. The view outlined in this paper enables a vindication of reintegrative punishment even when it is not the most immediately efficient means of reforming offenders. In making this argument, I develop the modern retributive platform in criminal justice theory, identify various overlooked yet key nuances in the relationship between reintegration and reform, and argue for greater theoretical and practical attention to how the state can make the communities they serve more receptive to reintegrating offenders. (shrink)

A significant amount of punishment that happens in society is state punishment, that is, third-party punishment carried out by an organized political community in response to a rule violation. We argue that a complete psychology of punishment must consider state punishment as a distinct form. State punishment is a unique type of punishment because it is a special case of third-party punishment, pre-specified to occur after the violation of official rules and policies, carried out by people acting on behalf of (...) a nation or government. State punishment, especially as compared to interpersonal punishment, is regarded as a legitimate form of violence, which communicates not just disapproval but information about procedures and power. Moreover, state punishment is made possible by state rules, which, unlike norms, are formalized, can be fully articulated and are perfectly transmissible across generations. We end the paper with implications for the psychology of punishment more broadly and future directions for better understanding the unique psychology of state punishment. (shrink)

Retributive theories of punishment argue that punishing a criminal for a crime she committed is sufficient reason for a justified and morally permissible punishment. But what about when the state gets lucky in its decision to punish? I argue that retributive theories of punishment are subject to “Gettier” style cases from epistemology. Such cases demonstrate that the state needs more than to just get lucky, and as these retributive theories of punishment stand, there is no anti-luck condition. I’ll argue that (...) Gettier-style cases demonstrate an impermissible instance of punishment, even though they meet the conditions of retributive theories of punishment. Retributive theories are, therefore, too weak. The safety condition from epistemology provides the anti-luck condition needed for permissible punishment. I argue that two forms of retributivism, rights-forfeiture and what I call standard retributivism, are both subject to Gettier-style cases. Unlike the literature on standards of proof, this paper argues that safety is a condition on punishment itself, i.e., in all nearby possible worlds, the accuser must correctly accuse the convicted for the crime they actually committed. (shrink)

In this paper, we offer a defense of non-punitive measures as morally justified responses to crime within a framework of society as a fair system of cooperation among free and equal individuals. Our argument proceeds in three steps. First, we elaborate on the premises of our argument: we situate criminal acts within a model of society as a fair system of cooperation, identify the types of unfair disadvantages crimes bring about, and consider the social aim of the criminal justice system. (...) Next, we reject the claim defended by fair-play retributivists that fairness considerations make punishment a necessary response to criminal acts. In the last step, we demonstrate that it is rather non-punitive responses to crime that are warranted under the principle of fairness and, as such, are morally justified. We conclude the paper by rejecting two possible objections to our defense: the “responsibility gap” and the “victims’ claim to justice” objections. (shrink)

Strawson's view on punishment has been either neglected or recoiled from in contemporary scholarship on ‘Freedom and Resentment’ (FR). Strawson's alleged retributivism has made his view suspect and troublesome. In this article, we first argue, against the mainstream, that the punishment passage is an indispensable part of the main argument in FR (section 1) and elucidate in what sense Strawson can be called ‘a retributivist’ (section 2). We then elaborate our own hypothesis of symbolic retribution to explain the continuum between (...) moral reactive attitudes and punishment that Strawson only adumbrates (section 3). After this justification of the punitive response to wrongdoing, we compare and contrast our specific kind of retributivist hypothesis with other positions in the so-called ‘new retributivism’ (section 4). Our hypothesis differs from other subvarieties of expressive retributivism in putting centre stage the idea of punishment as taking up a reverential stance towards the victim. (shrink)

The most popular position in the moral luck debate is to reject resultant moral luck while accepting the possibility of other types of moral luck. But it is unclear whether this position is stable. Some argue that luck is luck and if it is relevant for moral responsibility anywhere, it is relevant everywhere, and vice versa. Some argue that given the similarities between circumstantial moral luck and resultant moral luck, there is good evidence that if the former exists, so does (...) the latter. The challenge is especially pressing for the large group that exclusively deny resultant moral luck. I argue that rejecting resultant moral luck alone is a stable and plausible position. This is because, in a nutshell, the other types of luck can but the results of an action cannot affect what makes one morally responsible. (shrink)

Derk Pereboom and Gregg Caruso argue that humans are never morally responsible for their actions and take that thesis as a starting point for a project whose ultimate goal is the reform of responsibility practices, which include expressions of praise, blame, and the institution of legal punishment. This paper shares the skeptical concern that current responsibility practices can be suboptimal and in need of change, but argues that a non-skeptical pursuit of those changes is viable and more promising. The main (...) lines of the argument are developed by assessing the prospects of implementing one of the changes favored within the skeptical project (namely, the reduction of punishment severity) in light of how human moral psychology works. An original vignette experiment (N = 180; participants from Facebook groups related to Brazilian universities) asked participants to recommend sentences for a fictitious criminal after considering alternatives to regular punishment that varied in their effectiveness to prevent reoffending. The results suggest that people can become less punitive even if they continue to believe in moral responsibility and free will. The paper further argues that reforming responsibility practices is more likely to occur without the endorsement of skepticism. (shrink)

I offer a Kantian argument for the idea that the state lacks the authority to punish neglected, impoverished citizens when they commit crimes to cope with that neglect. Given Kant’s own commitments to the value of external freedom and the state’s obligation to ensure it in Doctrine of Right, there is no reason a Kantian state can claim authority to punish an impoverished citizen while also failing in significant ways to protect her external freedom.

Ödetmecilik faillerin işledikleri suçlar karşılığında cezalandırılmasını adaletin gereği sayan bir yaklaşım ortaya koymasıyla bilinir. Acıya karşı acı prensibi geçerlidir bu kuramda. Ne faillerin ıslahı başat önemdedir ne de suçun önlenmesi. Mağdurların uğradığı zararların telafisi ya da onların faillerle uzlaşması da hep tali meselelerdir. Haliyle, böyle bir anlatıda, ödetmeciliğin onarımla bir araya gelmesi de olanaklı bulunmaz çoğu zaman. Ödetmeci Ceza Adaletinin İki Yüzü, tavizsiz bir adalet talebine yaslanan ödetmeciliğin onarımla birlikte ele alınabileceğini söyleyerek sağduyuyla bağdaşmaz görünen bir önermeyle çıkıyor yola. Ancak, (...) “ödetmeci ceza onarıcıdır” savını ileri sürerken ödetmeciliğe arka çıkmayı değil, onu kritik etmeyi amaçlıyor. Hukukun ödetmeciliğinin karşısına, bir başkasını, acıya karşı acı prensibini benimsemeyen, yasayı ve adaleti değil, ilişkileri onaran bir ödetmeciliği koyuyor. İki ödetmecilik türünü birbirine karşıt konumlandırdıktan sonra da ceza yaptırımının mağdurla, faille ve devletle ilişkisine odaklanan özgün bir soruyla okuru çağdaş tartışmalara dahil ediyor: Ceza yaptırımı mağduru, faili ve devleti nasıl onarır? Ceza adaletinin yaygın kabullerine meydan okuyarak bu sorunun peşine düşen bu kitap, hem ceza felsefesine ilgi duyanları hem de alanın baş aktörlerini muhatap alarak eleştirel hukuk okulunun entelektüel köklerinden beslenen güçlü bir düşünsel zemin sunuyor. (shrink)

This book is a scholarly synthesis of the current state-of-play in ethics, with a focus on normative and applied ethics. Kahn asks readers to consider even the most contentious of topics like abortion, capital punishment, and euthanasia, from their most basic questions.

Since the middle of the 20th century, philosophers and legal scholars have debated the precise definition of punishment. This chapter surveys the debate, identifies six potential conditions of punishment, and critically reviews each of them: 1) the response condition, which holds that punishment must be in response to wrongdoing, 2) the culpability condition, which holds that punishment must be of a person morally responsible for wrongdoing, 3) the authority condition, which holds that punishment must be imposed by a relevant authority, (...) 4) the hard treatment condition, which holds that punishment must impose hard consequences on the punishee, 5) the intentionality condition, which holds that punishment must be intentional, and 6) the censure condition, which holds that punishment must communicate disapproval. The article argues that it is often unclear that there is a version of the condition that provides optimal lexical fit. It discusses the implications of this analysis, and concludes that there may be less reason to worry about the lack of an authoritative definition than has sometimes been assumed, but that definitional clarity remains an objective worth pursuing. (shrink)

This book reflects on the institutionalisation of restorative justice over the last 20 years and offers a critical analysis of the qualitative consequences generated by such a process on the normative structure of restorative justice, and on its understanding and uses in practice. Bringing together an international collection of leading scholars, this book provides a range of context-sensitive case studies that enhance our understanding of the development of international, national and institutional policy frameworks for restorative justice, the mainstreaming of practices (...) within the criminal justice system, the proliferation of cultural, social and political co-optations of restorative justice and the ways in which the formalisation of the restorative justice movement have affected its values, aims and goals. (shrink)

The aftermath of wrongful convictions is a unique context for restorative justice, as well as a unique context for considering questions concerning the institutionalisation of restorative justice. In this chapter, we consider post-wrongful conviction cases where restorative justice processes emerged spontaneously, without the involvement of state institutions. We examine the case in favour of and against state-managed restorative justice as a distinctive set of practices for tackling wrongful convictions, ultimately advocating a “quasi-institutional approach.” From the perspective of this approach, the (...) state can and should be involved in restorative justice practices that address wrongful convictions; however, such involvement can only be justified if it is limited to a strictly administrative role whereby state officials serve restorative justice processes directly controlled by the relevant parties—most notably, the wrongly convicted defendant, the victim of the offence, and, whenever possible and desirable, their families and friends. (shrink)

The forfeiture thesis is posed as an independent thesis in moral philosophy according to which agents forfeit (or lose) rights if they perform certain act-types. According to many, this thesis plays a crucial role in the justification of (legal) punishment. In this paper, I argue that the forfeiture thesis is unnecessary – we can simply dismiss it without any substantive loss. Echoing an aspect of the specificationist approach to rights, the reason is that we may replace the forfeiture thesis with (...) an exception clause in the very content of the right not to be subjected to hard treatment: P has no right not to be subjected to hard treatment simpliciter, but a right not to be subjected to hard treatment unless P performs an act-type φ – e.g., murdering an innocent person. This alternative has substantive advantages over the forfeiture thesis, which, in turn, shows that the former cannot be reduced to the latter. (shrink)

Is your forgiving the wrongdoer compatible with your continuing to impose punishment on that wrongdoer, or does forgiving necessarily include the withholding of further punishment? How does the fact that the state will intervene and impose punishment affect the victim's deliberations as to whether she ought to forgive? This paper explores these issues in relation to real-world cases of criminal wrongdoing and punishment.

In this paper I explore some ideas inspired by Federico Picinali’s Justice In-Between: A Study of Intermediate Criminal Verdicts. Picinali makes a case for the introduction of intermediate options in criminal trials – verdicts with consequences that are harsher than an acquittal, but not so harsh as a conviction. From a certain perspective, the absence of intermediate options in criminal trials is puzzling – out of kilter with much of our everyday decision-making and, perhaps, with the recommendations of expected utility (...) theory. I will argue, however, that the lack of intermediate options is much less puzzling when put in the context of our ordinary practices of blame and non-legal punishment. (shrink)

Ideen om at lovbrytere fortjener straff, må legges til grunn dersom vi skal kunne forstå og begrunne strafferetten i Norge og i andre rettsstater. Av noen teoretikere har dette kravet til fortjent straff blitt forstått som et negativt krav, som setter en begrensning på oppnåelsen av straffens formål. Straffen må da være «ikke ufortjent». I denne artikkelen argumenterer jeg for at en slik forståelse av fortjenesteideen er utilstrekkelig. Straff som fortjent må ansees som et positivt, selvstendig formål for strafferetten. Artikkelen (...) ser på norsk rettspraksis og lovforarbeider, og drøfter hvorfor det i norsk strafferett må legges til grunn at det er verdifullt å oppfylle lovbryterens fortjeneste. (shrink)

Punishment involves the intentional infliction of harm and suffering. Both of the most prominent families of justifications of punishment – retributivism and consequentialism – face several moral concerns that are hard to overcome. Moreover, the effectiveness of current criminal punishment methods in ensuring society’s safety is seriously undermined by empirical research. Thus, it appears to be a moral imperative for a modern and humane society to seek alternative means of administering justice. The special issue of Diametros “The Abolition of Punishment: (...) Is a Non-Punitive Criminal Justice System Ethically Justified?” was brought into life precisely to give the authors a platform for such progressive inquiries. And it is now safe to say that this platform has been put to excellent use, since Valerij Zisman, Alexander Stachurski, Giorgia Brucato, Perica Jovchevski, Sofia M. I. Jeppsson, Stephen G. Morris, Benjamin Vilhauer, John Lemos, Saul Smilansky, Elizabeth Shaw, Mirko Farina, Andrea Lavazza and Sergei Levin have presented such thought-provoking texts that they are bound to set the stage for debate in the years to come. This article is an introduction to this special issue and to the authors’ papers. (shrink)

Scholars have proposed that incarceration rates might be reduced by a requirement that judges justify incarceration decisions with respect to their operational costs (e.g., prison capacity). In an Internet-based vignette experiment (N = 214), we tested this prediction by examining whether criminal punishment judgments (prison vs. probation) among university undergraduates would be influenced by a prompt to provide a justification for one's judgment, and by a brief message describing prison capacity costs. We found that (1) the justification prompt alone was (...) sufficient to reduce incarceration rates, (2) the prison capacity message also independently reduced incarceration rates, and (3) incarceration rates were most strongly reduced (by about 25%) when decision makers were asked to justify their sentences with respect to the expected capacity costs. These effects survived a test of robustness and occurred regardless of whether participants reported that prison costs should influence judgments of incarceration. At the individual crime level, the least serious crimes were most amenable to reconsideration for probation. These findings are important for policymakers attempting to manage high incarceration rates. (shrink)

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

I here consider the reasonableness of punishing future autonomous military robots. I argue that it is an engineering desideratum that these devices be responsive to moral considerations as well as human criticism and blame. Additionally, I argue that someday it will be possible to build such machines. I use these claims to respond to the no subject of punishment objection to deploying autonomous military robots, the worry being that an “accountability gap” could result if the robot committed a war crime. (...) (Sparrow 2007). But these robots will be blameworthy and morally responsible for their wrongful conduct. I then show that we have reasons to punish them based both on good effects and the impact on the robot, itself. (shrink)

Le contexte des prisons africaines offre amplement matière à revisiter l’idée classique de l’inutilité de certaines criminalisations. Dans un monde plus que jamais dominé par le spectacle des châtiments et des modèles de justice expéditives, il est bienvenu de replacer le rôle de l’éducation dans la prison, puisque tout détenu emprisonné, aussi démuni et à plaindre soit-il, est riche de son temps, et capable de résilience et de perfectionnement. Encore faut-il, sous peine de paraître très idéaliste, dessiner de manière convaincante (...) les lignes directrices de la rédemption par la formation et les études dans le cadre de la prison. Les prisons ne sont pas des mouroirs, tel est le leitmotiv de l’entretien passionnant entre sept spécialistes des prisons dans l’enceinte de la prison de Libreville et le truchement de l’œuvre de Diangitukwa et de Siadous. (shrink)

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – that even if responsibility skepticism is correct, society should maintain a responsibility‐realist/retributivist criminal justice (...) system – is generally compelling, it would not work if a majority of society were to convert, theoretically and psychologically, to responsibility skepticism. In this (highly improbable) scenario, and only in this (highly improbable) scenario, the criminal justice system would need to be reformed in such a way that it aligned with the majority's responsibility‐skeptical beliefs and attitudes. (shrink)

Michael S. Moore defends the ideas of free will and responsibility, especially in relation to criminal law, against several challenges from neuroscience. I agree with Moore that morality and the law presuppose a commonsense understanding of humans as rational agents, who make choices and act for reasons, and that to defend moral and legal responsibility, we must show that this commonsense understanding remains viable. Unlike Moore, however, I do not think that classical compatibilism, which is based on a conditional understanding (...) of the ability to do otherwise, provides a sufficiently robust account of free will, even when it is amended as Moore suggests. I argue that free will and responsibility can be defended more robustly by observing that, at the level of agency, there can be alternative possibilities and mental causation in a stronger sense than recognized by classical compatibilism, even if physical determinism is true. Moore’s arguments could thus be strengthened by embracing this compatibilist libertarian position. At the same time, I note that, although the idea of responsibility is robustly defensible, there are independent reasons for rejecting a retributivist approach to punishment. (shrink)

Scholars have compared the transitional justice processes of Colombia and South Africa in some respects, but there has yet to be a systematic moral-philosophical evaluation of them regarding how they have sought to allocate economic goods. Here I appraise the ways that South Africa and Colombia have responded to their respective historical conflicts in respect of the distribution of property and opportunities. I do so in the light of a conception of reconciliation informed by a relational ethic of harmony, a (...) value salient in the worldviews of many indigenous peoples in both Africa and South America. I argue that, given such an account of reconciliation, one of Colombia’s major proposed ways of allocating property and opportunities, whereby offenders would labour for the sake of improving victims’ socio-economic conditions, would be much better than what South Africa has done, even if Colombia has yet to put such a policy systematically into practice. (shrink)

When it comes to how to hold people responsible for wrongdoing, much of the African philosophical tradition focuses on reconciliation as a final aim. This essay expounds an interpretation of reconciliation meant to have broad appeal, and then draws out its implications for responsibility in respect to three matters. First, when it comes to criminal justice, prizing reconciliation entails that offenders should be held responsible to “clean up their own mess,” i.e., to reform their characters and compensate victims in ways (...) they find burdensome, an approach to punishment that differs from deterrence and desert theories. Second, regarding civil justice, reconciliation means that holding responsible to compensate wrongful harm means improving victims’ quality of life in ways they accept, which contrasts with a common prescription to put victims in the condition they would have been in had the wrong not occurred. Third, reconciliation can involve putting on trial more than just the direct offender, for instance family members who had been able to influence his behavior and were allied with him. The chapter provides reason to take the reconciliatory approaches seriously that will be found prima facie attractive by those from a variety of backgrounds. (shrink)

In contributions elsewhere to this volume, we considered the histories of Colombia and South Africa and how some of the values indigenous to those locales might plausibly bear on transitional justice in them. We advanced broadly relational and constructive (non-retributive) approaches to the social conflicts that had taken place there, ones that make victim compensation central. In this chapter we consider how Metz’s ubuntu-based reconciliatory approach to reparations might be relevant to Colombia in ways he did not consider, after which (...) we reflect on how the kinds of communitarian practices advanced by Bautista might apply to South Africa. We conclude that these cross-applications are revealing, pointing out how economic compensation in Colombia should plausibly be influenced by cultural factors, and how considerations of culture in South Africa call for compensation beyond economic factors. (shrink)

This article provides a critical analysis of Mark Walker’s type-token theory. This theory purports to describe, explain, and justify the mechanism by which moral and legal responsibility can be attributed to exact and complete duplicates of persons. However, Walker’s defence of the view of persons as abstract entities is met with several metaphysical objections. Alternatively, a new approach to moral and legal responsibility is developed based on principles of agency law, in which the conception of a guilty person does not (...) require identity with the person who committed the culpable act. (shrink)

Some philosophers have claimed that part of what it is for a victim to forgive the wrongdoer is for her to withhold further punishment from that wrongdoer, or, at least, to commit to withholding further punishment. After all, forgiveness is supposed to be a process in which the slate in wiped clean, a process in which victim and perpetrator put the wrong behind them and start afresh. In contrast, many philosophers believe that forgiving is entirely compatible with continuing to punish (...) the wrongdoer. Forgiving, according to this view, might include the loss of resentment and the withholding of blame, but a victim can rightly continue to punish the wrongdoer whom she has already forgiven. This chapter explores the philosophical dispute over this issue, and suggests that people who believe in the permissibility of unconditional forgiveness are more likely to claim that forgiving is compatible with continuing to punish. (shrink)

In The Methods of Ethics, Henry Sidgwick maintains that resolution of the free will problem is of “limited” importance to ethics and to practical reasoning. Despite the view’s uniqueness, surprisingly little sustained attention has been paid to Sidgwick’s view. This chapter tries to remedy this situation. Part one clarifies Sidgwick’s argument for the claim that resolving the free will controversy is of only limited importance to ethics. Part two examines and tries to deflect objections to Sidgwick’s position raised by J. (...) B. Schneewind and Roger Crisp while putting forward a different objection. Part three raises objections to Sidgwick’s claim that “it is practically impossible to be guided, either in remunerating services or in punishing mischievous acts, by any other considerations than those which the Determinist interpretation of desert [and responsibility] would include”. The chapter concludes by noting that although Sidgwick’s view is not without its problems, his discussion forces us to consider which aspects of moral thinking (if any) survive the conclusion that free will is illusory. (shrink)

This is a review of Daniel Dennett and Gregg D. Caruso's Just Deserts: Debating Free Will.

This paper considers three possible ways of understanding the claim that the American criminal justice system is racist: individualist, “patterns”-based, and ideology-based theories of institutional racism. It rejects an individualist explanation of institutional racism because such an explanation fails to explain the widespread prevalence of anti-black racism in this system or indeed in the United States. It considers a “patterns” account of institutional racism, where consistent patterns of disparate racial effect mimic the structure of intentional projects of racial subjugation like (...) slavery or Jim Crow. While a “patterns” account helpfully directs attention to the effects of policies and practices that make up an institution, it does not fully explain the deep roots of anti-blackness in the criminal justice system in the United States. The paper concludes by defending an ideology-based theory of institutional racism for understanding the criminal justice system because the stereotype of the black criminal has a mutually reinforcing relationship with the patterns of disparate outcome for black people in the criminal justice system. This relationship creates a looping effect where the stereotype of the black criminal fuels the disproportionate involvement of black people in the criminal justice system, and the disproportionate representation of black people with felony records, in prisons, brutalized in police encounters, and so on reinforces the idea that black people are especially prone to criminality. Ideological approaches to racism that integrate attention to the patterns of disparate effect best explain what it means to say that the criminal justice system is racist. (shrink)

This paper advocates for a general policy of penal leniency: judges should often sentence offenders to a punishment less severe than initially preferred. The argument’s keystone is the relatively uncontroversial Minimal Invasion Principle (MIP). MIP says that when more than one course of action satisfies a state’s legitimate aim, only the least invasive is permissibly pursued. I contend that MIP applies in two common sentencing situations. In the first, all sentences within a statutorily specified range are equally proportionate. Here MIP (...) applies directly. In the second, judges reasonably believe that one of the sentences within the range is the most proportionate, but can’t identify it with any certainty. In these cases of sentencing uncertainty, judges must be indifferent between their preferred sentence and a softer one, and this indifference triggers MIP. MIP thus frequently mandates some degree of leniency. I conclude with some comments on statistical uncertainty. (shrink)

This preregistered experiment examined two proximate drivers of retributive punishment attitudes: the motivation to make the perpetrator suffer, and understand the wrongfulness of his offense. In a sample of 514 US adults, we presented criminal case summaries that varied the level of suffering (absent vs. present) and understanding (absent vs. present) experienced by the perpetrator and measured punishment judgments and attitudes. Our results demonstrate, as predicted, that participants were more satisfied by the sentence and less punitive when they believed that (...) the perpetrator had suffered from the punishment or that he understood the wrongfulness of his actions. This pattern held across crimes of varying seriousness (theft vs. aggravated robbery) and across two narrative perspectives (participant as victim vs. participant as third party). However, joint evidence of suffering and understanding did not strengthen this effect, contrary to predictions. We discuss the implications of these findings for leading philosophical theories of punishment. (shrink)