What should the EU do about the fact that some Member States are backsliding on their commitments to democracy, supposedly a fundamental value of the EU? The Treaty provisions under Article 7 TEU are widely criticized for being ineffective in preventing such developments. Are they legitimate? I argue that the ultimate sanction of Article 7 TEU falls into a performative contradiction, which undermines its ability to coherently defend fundamental values. Instead, expulsion from the EU is the appropriate, coherent and legitimate (...) final political sanction for democratic and rule of law backsliding by a Member State. The argument has the following steps: In Part 1, I argue that the current Article 7 framework for responding to democratic and rule of law backsliding in the EU is normatively problematic, in that the mechanism currently in the Treaty undermines the values it purports to defend; in other words, it falls into a performative contradiction. It is undemocratic to deprive Member States of their right to vote in the Council while holding them subject to Council decisions. However, Part 2 studies relevant philosophical arguments from an adjacent literature on criminal disenfranchisement, concluding that allowing backsliding Member States to keep their voting rights in the Council _also_ taints the democratic character of Council decision-making. In Part 3, I consider the resulting paradox in light of the literature on militant democracy. Could militant democracy justify Article 7? I argue not; even if we accept the hypothetical justifiability of militant measures, they are not legitimate here since a democratically acceptable alternative exists that would safeguard the democratic character and legitimacy of Council decision-making: expulsion from the Union. I also address a central objection to an expulsion mechanism—that it would require treaty change and is therefore practically impossible. (shrink)

This chapter will focus on the biomedical moral enhancement of offenders – the idea that we could modify offenders’ brains in order to reduce the likelihood that they would engage in immoral, criminal behaviour. Discussions of the permissibility of using biomedical means to address criminal behaviour typically analyse the issues from the perspective of medical ethics, rather than penal theory. However, recently certain theorists have discussed whether brain interventions could be legitimately used for punitive purposes. For instance, Jesper Ryberg argues (...) that there is nothing to prevent retributivists from endorsing brain interventions as a legitimate form of retributive punishment. Legal academics have not yet paid sufficient attention to whether this proposal would be compatible with international human rights law, nor have retributivist philosophers discussed whether their favoured penal theories have the conceptual resources to explain why brain interventions would not be an appropriate method of punishment. This chapter considers whether there is any indication that these interventions are being used at present for punitive purposes and whether this would violate the European Convention on Human Rights. It examines different versions of retributivism and considers which theory is in the best position to challenge the use of brain interventions as a form of punishment. Finally, it considers whether offering these interventions as an alternative to punishment would violate principles of proportionality. (shrink)

In her recent book The Limits of Blame, Erin Kelly argues that we should rethink the nature of punishment because delivering blame is, contrary to the widely held view, not among the justifiable aims of a criminal justice system. In this paper, firstly, I discuss her case against criminal blame. Kelly argues that the emphasis on blame in the criminal justice system and in public discourse is one of the main causes of the stigma and exclusion faced by those convicted (...) for a crime. This claim might appear puzzling and, while she provides other convincing arguments against criminal blame, Kelly does not extensively defend this particular argument. To offer support for this view, I reflect on the often overlooked distinction between moral blame and criminal blame to show how the latter, unlike the former, is exclusionary and stigmatising. Secondly, I address the claim put forth by Kelly that blame should play no role in the criminal justice system at all. In light of her argument about the optional nature of moral blame, I explore the possibility that the state should leave open to victims the option to blame criminal wrongdoers in restorative justice conferences. I argue that in such contexts blame would not have the same exclusionary features of criminal blame in traditional settings and that it could serve some valuable aims articulated by communicative theories of punishment, such as the restoration of moral relationships. (shrink)

Germany is joining a long list of European democracies that have modified or expressed a willingness to modify their citizenship laws to denationalize first and then prevent the return of or expel those citizens accused of having participated in terrorist activities abroad. The formal labelling of citizenship deprivation as an administrative measure outside the scope of criminal justice has prevented scholars of criminal law from undertaking a thorough scrutiny of its legitimacy. In this paper I seek to fill this gap. (...) Specifically, after demonstrating why deprivation of citizenship is a measure of a criminal nature, I argue against its legitimacy, either as a punishment or as a risk-based measure. Instead I propose that we should understand citizenship deprivation as a paradigmatic response from an illegitimate enemy criminal law. Notwithstanding the foregoing, I claim that states that choose to denationalize terrorists should do it within the framework of a process with the highest (criminal procedural) guarantees. (shrink)

This paper concerns what if any obligations a “society of equals” has to criminal offenders after legal punishment ends. In the United States, when people leave prisons, they are confronted with a wide range of federal, state, and local laws that burden their ability to secure welfare benefits, public housing, employment opportunities, and student loans. Since the 1980s, these legal consequences of criminal convictions have steadily increased in their number, severity, and scope. The central question I want to ask is (...) whether the infliction of these burdensome legal consequences for those who have already been punished by the state is consistent with the ideal of equality. I argue that these collateral legal consequences violate relational egalitarian principles of justice and are thus objectionable. I conclude by examining possible objections to my argument. (shrink)

This paper discusses an argument in defense of felon disenfranchisement originally proposed by Andrew Altman, which states that as a matter of democratic self-determination, members of a legitimate democratic community have a collective right to decide whether to disenfranchise felons. Although this argument—which is here referred to as the argument from democratic self-determination—is held to justify policies that are significantly broader in scope than many critics of existing disenfranchisement practices would allow for, it has received little attention from philosophers and (...) political theorists. One exception is Claudio López-Guerra, who recently raised several objections to the argument. In this paper, I argue that the argument from democratic self-determination can avoid López-Guerra’s objections. In responding to these, I explicate how and when it can be permissible for a legitimate democratic community to disenfranchise felons. I propose that this is the case only if the disenfranchisement of felons is not intended as a punishment, but as a way to express the view about citizenship one endorses as a democratic collective. I also discuss the implications of the argument in terms of offender reintegration. (shrink)

This paper questions the notion that states may be justified in denying certain prisoners the right to vote as a means of distancing themselves from particularly grave wrongs. Christopher Bennett has recently defended prisoner disenfranchisement as a fair and deserved retributive punishment for crimes, and Mary Sigler and Andrew Altman have argued in favor of prisoner disenfranchisement as a civil restriction. All three proponents agree that disenfranchisement should be reserved for those guilty of the most serious offenses. I assert that (...) it is inappropriate to treat citizens in this manner and will advocate for the right to vote, whether disenfranchisement is perceived as a form of punishment or as a civil measure. I will present two arguments against disenfranchisement as it impacts both citizens and political community at large. First, it excludes citizens from the democratic arena and restricts the opportunity to reintegrate offenders into the political community. While a criminal sentence is intended to be burdensome, the burden associated with disenfranchisement extends beyond the appropriate penal scope. (shrink)

This thesis provides an ethical analysis of imprisonment as a mode of punishment. Consisting in an introduction and four papers the thesis addresses several important questions concerning imprisonment from a number of different perspectives and theoretical starting points. One overall conclusion of this thesis is that imprisonment, as a mode of punishment, deserves more attention from moral and legal philosophers. It is also concluded that a more complete ethical assessment of prison conditions and prison management requires a broader focus. It (...) must include an explicit discussion of both how imprisonment directly affects prison inmates and its negative side-effects on third parties. Another conclusion is that ethical discussions on prison conditions should not be too easily reduced to a question about how harsh or lenient is should be. Paper 1 argues that prisoners have a right to privacy. It is argued that respect for inmates’ privacy is related to respect for them as moral agents. Consequently, respect for inmates’ privacy is called for by different established philosophical theories about the justification of legal punishment. Practical implications of this argument are discussed and it is argued that invasion of privacy should be minimized to the greatest extent possible, without compromising other important values or the rights to safety and security. It is also proposed that respect for privacy should be part of the objective of creating and upholding a secure environment. Paper 2 discusses whether the collateral harm of imprisonment to the children and other close family members of prison inmates may give rise to special moral obligations towards them. Several collateral harms, including decreased psychological wellbeing, financial costs, loss of economic opportunities, and intrusion and control over their private lives, are identified. Two perspectives in moral philosophy, consequentialism and deontology, are then applied in order to assess whether these harms are permissible. It is argued that from either perspective it is hard to defend the claim that allowing for these harms are morally permissible. Consequently, imprisonment should be used only as a last resort. Where it is deemed necessary, it gives rise to special moral obligations. Using the notion of residual obligation, these obligations are then categorized and clarified. Paper 3 focuses on an argument that has figured in the philosophical debate on felon disenfranchisement. This argument states that as a matter of democratic self-determination, a legitimate democratic collective has the collective right to decide whether to disenfranchise felons as a way of defining their political identity. Yet, such a collective’s right to self-determination is limited, since the choice to disenfranchise anyone must be connected to normative considerations of political significance. This paper defends this argument against three charges that has been raised to it. In doing so it also explores under what circumstances felon disenfranchisement can be permissible. Paper 4 explores the question of whether prison inmates suffering from ADHD should be administered psychopharmacological intervention for their condition. The theoretical starting point for the discussion is the communicative theory of punishment, which understands criminal punishment as a form of secular penance. Viewed through the lens of the communicative theory it is argued that the provision of pharmacological treatment to offenders with ADHD need not necessarily be conceived of as an alternative to punishment, but as an aid to achieving the penological ends of secular penance. Thus, in this view offenders diagnosed with ADHD should have the option to undergo pharmacological treatment. (shrink)

In the United States, convicted offenders frequently lose the right to vote, at least temporarily. Drawing on the common observation that citizens of color lose democratic rights at disproportionately high rates, this chapter argues that this punishment is problematic in non-ideal societies because of the way in which it diminishes the political power of marginalized groups and threatens to reproduce patterns of domination and subordination, when they occur. This chapter then uses the case of penal disenfranchisement to illustrate how idealized (...) discussions of deterrence, rehabilitation, and retribution often ignore the relationship between punishment and social/political power, and thus systematically obscure morally significant aspects of our broader penal practices. (shrink)

This paper explores communicative punishment from a non-idealized perspective. I argue that, given the specific racial dynamics involved, and given the broader social and historical context in which they are embedded, American policing and punishment function as a form of racially derogatory discourse. Understood as communicative behavior, criminal justice activities express a commitment to a broader ideology. Given the facts about how the American justice system actually operates, and given its broader socio-political context, American carceral behaviors express a commitment to (...) the same types of derogatory, subordinating anti-minority ideologies that are paradigmatically conveyed through racial slurs and similar forms of derogatory speech. Moreover, I argue, this derogatory meaning presents a significant obstacle to adequate criminal justice reform. (shrink)