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  1. super-Retributivism.Paul Bali - manuscript
    a criminal, C, inflicts an injustice upon their Victim. thus C deserves to suffer an injustice: an excessive punishment.
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  2. Law, Philosophy and Responsibility: The Roman Ingarden Contribution.Michal Peno - manuscript
    This text is a kind of sketch and presents some simple ideas. The aim of this article is to carry out a critical and reflexive analysis of Roman Ingarden's philosophy of responsibility. Being a member of the phenomenological current, Ingarden mainly studied the ontological bases or conditions of responsibility by identifying different situations of responsibility. In this paper situations of responsibility have been analysed in the semantic contexts in which the word "responsibility" appears. Legally, the prescriptive contexts of using the (...)
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  3. Prohibiting immoralities.John Gardner - manuscript
    Destined for the Cardozo Law Review. Posted 28 November 2006.
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  4. Reply to critics.John Gardner - manuscript
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  5. The Death Penalty Debate: Four Problems and New Philosophical Perspectives.Masaki Ichinose - June 2017 - Journal of Practical Ethics 5 (1):53-80.
    This paper aims at bringing a new philosophical perspective to the current debate on the death penalty through a discussion of peculiar kinds of uncertainties that surround the death penalty. I focus on laying out the philosophical argument, with the aim of stimulating and restructuring the death penalty debate. I will begin by describing views about punishment that argue in favour of either retaining the death penalty (‘retentionism’) or abolishing it (‘abolitionism’). I will then argue that we should not ignore (...)
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  6. Two-Tiered Mixed Theories of Punishment Are Not Safe from the Angry Mob.Jason Lee Byas - forthcoming - Australasian Journal of Philosophy.
    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 (...)
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  7. n-1 Guilty Men.Clayton Littlejohn & Julien Dutant - forthcoming - In Simon Kirchin (ed.), The Future of Normativity. Oxford:
    We argue that there is nothing that can do the work that normative reasons are expected to do. A currently popular view is that in any given situation, a set of normative reasons (understood as a set of facts, typically about the agent’s situation) always determines the ways we prospectively should or should not respond. We discuss an example that we think shows no such collection of facts could have this normative significance. A radical response might be to dispense with (...)
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  8. A Relational Theory of Justice.Thaddeus Metz - forthcoming - Oxford University Press.
    The core idea of A Relational Theory of Justice is that normative political and legal philosophy should be grounded on people’s relational features, in particular their ability to commune with others and be communed with by them. Usually, philosophers of justice in the West have based their views on people’s intrinsic features, ones that make no essential reference to others, such as their autonomy, self-ownership, or well-being. In addition, often critics of basing politics and law on justice, whether in the (...)
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  9. How not to Define Punishment.Gianfranco Pellegrino - forthcoming - Philosophy and Public Issues - Filosofia E Questioni Pubbliche.
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  10. Punishment without Pain. Outline for a Non-Afflictive Definition of Legal Punishment.Gianfranco Pellegrino - forthcoming - Philosophy and Public Issues - Filosofia E Questioni Pubbliche.
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  11. A Précis of Punishment.Gianfranco Pellegrino - forthcoming - Philosophy and Public Issues - Filosofia E Questioni Pubbliche.
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  12. Let’s forget about forfeiture.Cristián Rettig - forthcoming - Jurisprudence.
    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 (...)
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  13. Out of Sight, Out of Mind.Katrina L. Sifferd - forthcoming - In T. Søbirk Petersen, Sebastian Jon Holmen & Jesper Ryberg (eds.), Preventing Crime by Exclusion: Ethical Considerations. Routledge.
    Selective exclusionary rules, including protective orders and parole conditions, target an offender’s decision-making processes by attempting to keep them away from places or persons. State management of crime by selective exclusion seems to distrust a person’s ability to choose well in certain circumstances, and thus attempts to limit or manipulate the opportunities for choice. Some exclusionary rules, including certain protective orders that prohibit proximity to a likely victim, support diachronic agency and may be justified as punishment. However, selective exclusionary rules (...)
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  14. Punishment, Judges and Jesters: A Reply to Nathan Hanna.Bill Wringe - forthcoming - Ethical Theory and Moral Practice.
    Nathan Hanna has recently addressed a claim central to my 2013 article ‘Must Punishment Be Intended to Cause Suffering’ and to the second chapter of my 2016 book An Expressive Theory of Punishment: namely, that punishment need not involve an intention to cause suffering. -/- Hanna defends what he calls the ‘Aim To Harm Requirement’ (AHR), which he formulates as follows. AHR: ‘an agent punishes a subject only if the agent intends to harm the subject’ (Hanna 2017 p969). I’ll try (...)
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  15. Making Punishment Safe: Adding an Anti-Luck Condition to Retributivism and Rights Forfeiture.J. Spencer Atkins - 2024 - Law, Ethics and Philosophy:1-18.
    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 (...)
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  16. Entrapment.Daniel J. Hill, Stephen K. McLeod & Attila Tanyi - 2024 - Elgar Encylopedia of Crime and Criminal Justice.
    We discuss how the law and scholars have approached three questions. First, what acts count as acts of entrapment? Secondly, is entrapment a permissible method of law-enforcement and, if so, in what circumstances? Thirdly, what must criminal courts do, in response to the finding that an offence was brought about by an act of entrapment, in order to deliver justice? While noting the contrary tendency, we suggest that the first question should be addressed in a manner that is neutral about (...)
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  17. Kant's Position on the Wide Right to Abortion.Samuel Kahn - 2024 - Kant Studien 115 (2):203-227.
    In this article, I explicate Kant’s position on the wide right to abortion. That is, I explore the extent to which, according to Kant’s practical philosophy, abortion is punishable, even if it involves an unjust infringement of the right to life. By focusing on the state’s right to punish, rather than the right to life or the onset of personhood, I use Kant to expose a novel range of issues and questions about the legal status of abortion (and criminal punishment (...)
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  18. The Imperialism of Desert.Ofer Malcai & Re'em Segev - 2024 - Ergo: An Open Access Journal of Philosophy 11:861-889.
    What is the relation between desert and other values such as equality, priority for the worse off, and utility? According to the common (pluralist) view, desert and these other values reflect distinct concerns: some are about distributive justice, some about retributive justice, and some (most clearly, utility) are not concerned with justice at all. However, another (monistic) view holds that while desert is a basic value, other values are merely derived from it. This controversy is relevant, for instance, to allocative (...)
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  19. International criminal vacations: justice in tears.Farhad Malekian - 2024 - Hauppauge: Nova Science Publishers.
    This work delves into the nature of the morality of the judges and prosecutors of the ICC, who are instrumental in perpetuating the flawed concept of international criminal vacation. This work does not imply distrust in the capacities of the prosecutors or judges of the Court. However, if they are not morally and legally accountable for safeguarding the survival and security of the rights of victims, then who is? This volume places a significant emphasis on an ethical and philosophical understanding (...)
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  20. Amnesia and Punishment.Austen McDougal - 2024 - Ethics 135 (1):36-64.
    Should punishment be abated for offenders suffering from amnesia? Philosophers have largely overlooked this question. Extant views cluster around a straightforward answer: deserving punishment depends on remembering one’s crime. However, arguments for that view rely on implausible assumptions; the view also implies that offenders could manipulate how much punishment they deserve. Instead, uneasiness about punishing amnesiacs should be traced to distinctive grounds for showing mercy. Amnesiacs who cannot access their past motives are unable to fully comprehend their own role in (...)
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  21. Holding Responsible in the African Tradition: Reconciliation Applied to Punishment, Compensation, and Trials.Thaddeus Metz - 2024 - In Maximilian Kiener (ed.), The Routledge Handbook of Philosophy of Responsibility. Abingdon, Oxon: Routledge. pp. 380-392.
    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 (...)
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  22. Too Objective for Culpability?Alex Sarch - 2024 - Criminal Law and Philosophy 18 (1):19-44.
    To help explain in a principled way why criminal law doctrine tends to abstract away from motives and other individualized circumstances, I have defended an insufficient regard theory of criminal culpability that is more objective in certain respects than other views in the same camp. This has led Alec Walen to object that my view is too objective to be an account of culpability and is better understood as a theory of criminal wrongs. This challenge is important not least because (...)
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  23. The Abolition of Punishment: Is a Non-Punitive Criminal Justice System Ethically Justified?Przemysław Zawadzki - 2024 - Diametros 21 (79):1-9.
    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: (...)
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  24. Punishment as a Scarce Resource: A Potential Policy Intervention for Managing Incarceration Rates.Eyal Aharoni, Eddy Nahmias, Morris Hoffman & Sharlene Fernandes - 2023 - Frontiers in Psychology 4 (May).
    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 (...)
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  25. Review of Benjamin S. Yost, "Against Capital Punishment".Thom Brooks - 2023 - Ethics 133 (4):662-666.
    Review of Benjamin Yost's Against Capital Punishment by Thom Brooks.
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  26. Gregg D. Caruso: Rejecting Retributivism: Free Will, Punishment, and Criminal Justice.Thom Brooks - 2023 - Ethical Theory and Moral Practice 26 (1):157-159.
  27. Revue du livre : Diangitukwa et Siadous, Les prisons sont-elles utiles? [REVIEW]Ignace Haaz - 2023 - Journal of Ethics in Higher Education (2):169–189.
    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 (...)
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  28. (1 other version)Guilty Pleas, Sentence Reductions, and Non-punishment of the Innocent.Zachary Hoskins - 2023 - In Julian V. Roberts & Jesper Ryberg (eds.), Sentencing the Self-Convicted: The Ethics of Pleading Guilty. Bloomsbury. pp. 51-69.
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  29. (1 other version)Guilty Pleas, Sentence Reductions, and Non-punishment of the Innocent.Zachary Hoskins - 2023 - In Julian V. Roberts & Jesper Ryberg (eds.), Sentencing the Self-Convicted: The Ethics of Pleading Guilty. Bloomsbury. pp. 51-69.
    It is common practice in the United Kingdom, the United States, and other common law countries to reduce criminal sentences in response to guilty pleas. This chapter contends that this practice violates the commonly accepted prohibiton on punishment of the innocent. I first consider various interpretations of what this prohibition requires of a system of punishment. Then I contend that insofar as sentence reductions provide significant prudential incentives to innocent people to plead guilty, these reductions run afoul of the most (...)
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  30. What's Wrong with Prepunishment?Alex Kaiserman - 2023 - Pacific Philosophical Quarterly 104 (3):622-645.
    Punishing someone for a crime before they have committed it is widely considered morally abhorrent. But there is little agreement on what exactly is supposed to be wrong with it. In this paper, I critically evaluate several objections to the permissibility of prepunishment, making points along the way about the connections between time, knowledge, desert, deterrence and duty. I conclude that, although the conditions under which it could permissibly be administered are unlikely ever to arise in practice, nevertheless in principle, (...)
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  31. Outcome Effects, Moral Luck and the Hindsight Bias.Markus Kneer & Iza Skoczeń - 2023 - Cognition 232.
    In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...)
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  32. Let's Not Do Responsibility Skepticism.Ken M. Levy - 2023 - Journal of Applied Philosophy 40 (3):458-73.
    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 (...)
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  33. Mechanical Choices: A Compatibilist Libertarian Response.Christian List - 2023 - Criminal Law and Philosophy:1-23.
    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 (...)
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  34. Moral pluralism and the complexity of punishment: the penal philosophy of H.L.A. Hart.Nicolas Nayfeld - 2023 - New York, NY: Routledge.
    This book advances a new interpretation of Hart's penal philosophy. Positioning itself in opposition to current interpretations, the book argues that Hart does not defend a mixed theory of punishment, nor a rule-utilitarian theory of punishment, nor a liberal form of utilitarianism, nor a goal and constraint approach. Rather, it is argued, his penal philosophy is based on his moral pluralism, which comprises two aspects: value pluralism and pluralism with respect to forms of moral reason. It is held that this (...)
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  35. (1 other version)Criminal Proof: Fixed or Flexible?Lewis Ross - 2023 - Philosophical Quarterly (4):1-23.
    Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...)
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  36. (1 other version)Criminal Proof: Fixed or Flexible?Lewis Ross - 2023 - The Philosophical Quarterly.
    Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...)
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  37. The moral permissibility of banishment.E. E. Sheng - 2023 - Law and Philosophy 42 (3):285-310.
    This essay defends the moral permissibility, as a form of punishment, of banishment, namely the exclusion by a state of a citizen from its territory. I begin by outlining the prima facie case for banishment, consider for whom it may be appropriate, and acknowledge constraints on its permissibility. I then defend banishment against the main objections in the literature to banishment or the related measure of denationalization (stripping citizens of their citizenship): impermissible permanency; excessive severity; ineffectiveness; unfairness to those who (...)
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  38. Deserving Blame, and Sometimes Punishment.Katrina L. Sifferd - 2023 - Criminal Law and Philosophy 18 (1):133-150.
    Michael S. Moore is a whole-hearted retributivist. The triumph of Mechanical Choices is that Moore provides a thoroughly physicalist, reductionist-friendly, compatibilist account of the features that make persons deserving of blame and punishment. Many who embrace scientific accounts of psychology worry that from this perspective the grounds for desert disappear; but Moore argues that folk psychological accounts of responsibility—such as those found in the criminal law—are either vindicated or not implicated by science. Moore claims that criminal punishment can be justified (...)
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  39. Renouncing the attempt versus perpetration distinction.Izabela Skoczeń - 2023 - Synthese 201 (1):1-29.
    Legal and moral luck goes against the basic principle of criminal law that responsibility ascriptions are based on the mental state of the perpetrator, rather than merely the outcome of her action. If outcome should not play a decisive role in responsibility ascriptions, the attempt versus perpetration distinction becomes more difficult to justify. One potential justification is that we never know whether the attempter would not have resigned from pursuing her criminal intent even at the last moment. However, this paper (...)
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  40. Do Androids Dream of Electric Crimes?Ricardo Tavares da Silva - 2023 - Anatomia Do Crime 17:95-106.
    The title of the paper is an allusion to Philip K. Dick’s book Do Androids Dream of Electric Sheep? (which inspired the movie Blade Runner) and aims, at once, to highlight the (possible) relation between Criminal Law and Artificial Intelligence in its two dimensions of criminal protection (hence the reference to ‘electric crimes’) and criminal liability (hence the reference to the androids’ dreams), within the background problem of knowing whether Artificial Intelligence is truly mind. The purpose of this paper is, (...)
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  41. Five perspectives on holding wrongdoers responsible in Kant.Benjamin Vilhauer - 2023 - British Journal for the History of Philosophy 32 (1):100-125.
    The first part of this paper surveys five perspectives in Kant’s philosophy on the quantity of retribution to be inflicted on wrongdoers, ordered by two dimensions of difference – whether they are theoretical or practical perspectives, and the quantity of retribution they prescribe: (1) theoretical zero, the perspective of theoretical philosophy; (2) practical infinity, the perspective of God and conscience; (3) practical equality, the perspective of punishment in public law; (4) practical degrees, the perspective we adopt in private relations to (...)
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  42. What Does it Mean to Say “The Criminal Justice System is Racist”?Amelia M. Wirts - 2023 - American Philosophical Quarterly 60 (4):341-354.
    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 (...)
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  43. Lowering the Boom: A Brief for Penal Leniency.Benjamin S. Yost - 2023 - Criminal Law and Philosophy 17 (2):251-270.
    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 (...)
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  44. A painful message: Testing the effects of suffering and understanding on punishment judgments.Eyal Aharoni, David Simpson, Eddy Nahmias & Mario Gollwitzer - 2022 - Zeitschrift Für Psychologie 230 (2):138-151.
    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 (...)
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  45. al-Sharʻīyah al-jazāʼīyah: dirāsah muqāranah.Ṭalāl ʻAbd Ḥusayn Badrānī - 2022 - Iqlīm Kurdistān, al-ʻIrāq,: Wizārat al-ʻAdl, Markaz al-Buḥūth al-Qānūnīyah.
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  46. The Silent Exception: Hunger-Striking and Lip-Sewing.Banu Bargu - 2022 - In Rick Elmore & Ege Selin Islekel (eds.), The biopolitics of punishment: Derrida and Foucault. Evanston, Illinois: Northwestern University Press.
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  47. Punitive Restoration.Thom Brooks - 2022 - In Matthew C. Altman (ed.), The Palgrave Handbook on the Philosophy of Punishment. Palgrave-Macmillan. pp. 639-656.
    Restorative justice is highly promising as an effective approach to better supporting victims, reducing reoffending, and lowering costs. The challenge it faces is a dual hurdle of limited applicability and lack of public confidence. The issue is how we might better embed restorative justice in the criminal justice system so its promising effectiveness could be shared more widely while increasing public confidence. This chapter explores the new approach of punitive restoration, which gives more tools for restoration including a wider punitive (...)
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  48. Punishment.Robert Canton - 2022 - New York, NY: Routledge.
    This book explores the concept of punishment: its meaning and significance, not least to those subject to it; its social, political and emotional contexts; its role in the criminal justice system; and the difficulties of bringing punishment to an end. It explores how levels of criminal punishment could and should be reduced, without compromising moral standards, public safety or the rights of victims of crime. Core contents include: Why punishment matters, the salience of emotions in its various discourses and the (...)
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  49. (1 other version)Precis of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice.Gregg D. Caruso - 2022 - Journal of Legal Philosophy 2 (46):120-125.
  50. Retributivism, Free Will Skepticism, and the Public Health-Quarantine Model: Replies to Kennedy, Walen, Corrado, Sifferd, Pereboom, and Shaw.Gregg D. Caruso - 2022 - Journal of Legal Philosophy 2 (46):161-216.
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