Punishment involves deliberating harming individuals. How, then, if at all, is it to be justified? This, the first of three papers on the philosophy of punishment (see also 'Punishment: Nonconsequentialism' and 'Punishment: The Future'), examines attempts to justify the practice or institution according to its consequences. One claim is that punishment reduces crime, and hence the resulting harms. Another is that punishment functions to rehabilitate offenders. A third claim is that punishment (or some forms of punishment) can serve to make (...) restitution to victims, and a fourth is that it can strengthen social values. The paper examines these claims, and finally considers pluralist theories which combine retributive and harm-reductive or utilitarian considerations. (Retributive theories are examined in their own right in 'Punishment: Nonconsequentialism'.). (shrink)

One dark and rainy night, Yuso sexually assaults and tortures Zelan. In escaping from the scene of his crime, he falls heavily and becomes an impotent paraplegic. Instead of treating his fate as divine retribution for his wicked acts, Yuso sees it as sheer bad luck. He shows no remorse for what he has done, and vainly hopes that he will recover his powers, which he now treats as involuntarily hoarded resources to be used on less rainy days. In the (...) presence of others, he pretends that he has turned over a new leaf. He asks for religious and educational books, hoping to make up for his poor education and deprived social background. But he immediately discards them when he is alone in favor of the pornographic magazines which he has bribed a nurse to smuggle in for him. His deception and various obscene acts committed in the hospital are exposed; by the time he comes up for trial, everyone knows that he is still a lustful, sadistic, and unrepentant man. Most retributivists have a sufficient justification for punishing Yuso independently of the social consequences of his punishment. Two features of the case might cause some difficulties. First, Yuso has already experienced considerable suffering and deprivation both before and after his crime, and retributivists might disagree about the relevance of the suffering to his punishment. Secondly, Yuso is unrepentant, and it is unlikely that punishment will change him. This might, as we shall see, create a problem for those who think that the justifying aim of punishment is the moral reform of the offender. (shrink)

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

Nearly all retributive theories of punishment adopt the following model. Punishments are justified when the wrongdoers receive the punishment they deserve. A deserved punishment is one that is proportionate to the offender’s culpability. Culpability has two components: the severity of the wrong, and the offender’s blameworthiness. The broader aim of this article is to outline an alternative retributivist model that directly involves the victim in the determination of the appropriate and just punishment. The narrower aim is to show that the (...) methodology employed by Michael Moore in support of the standard retributive model in fact better supports this alternative model. Moore himself explicitly rejects the idea that victims can play a role in determining just punishments, because this would entail assigning different punishments to equally culpable offenders. When properly applied, however, Moore’s method for justifying retributivism results in an approach that directly involves the victim in the punishment process. (shrink)

Jeffrie G Murphy & Jean Hampton, Forgiveness and Mercy Cambridge and New York: Cambridge University Press, 1988, 194 pp. Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest New York and Oxford: Oxford University Press, 1989, 271 pp.

This is a slightly revised text of Jeffrie G. Murphy’s Presidential Address delivered to the American Philosophical Association, Pacific Division, in March 2006. In the essay the author reconsiders two positions he had previously defended—the liberal attack on legal moralism and robust versions of the retributive theory of punishment—and now finds these positions much more vulnerable to legitimate attack than he had previously realized. In the first part of the essay, he argues that the use of Mill’s liberal harm principle (...) against legal moralism cannot be cabined in such a way as to leave intact other positions that many liberals want to defend—in particular, certain fundamental constitutional rights and character retributivism in criminal sentencing. In the second part of the essay, he expresses serious doubts—some inspired by Nietzsche—about the versions of character retributivism that he had once enthusiastically defended and now describes himself as no more than a reluctant retributivist. (shrink)

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

The article examines the relationship between a wrongdoer and his victim. Based on this examination, a justification for criminal punishment is proposed. It is argued that crime violates thea prioriequality of constituent boundaries and of infinite human value between the wrongdoer and the victim. Criminal punishment re-equalizes respective boundaries and infinite human value. To develop this argument, the article observes how subject-subject boundaries are essential for the formation of separateness between subjects - separateness which is recognized and acknowledged by them (...) in a cooperative process. The article further discusses the value of boundaries and the significance of theira prioriequality in every human relationship. It then shows how crime, which is intrusion of the victim’s boundaries, works to demolish the victim’s self-recognizing separateness and hence to create inequality in the parties’ value. Last, the article demonstrates that only punishment can reset the relationship between the parties and re-equate their (still infinite) human value in the relationship. (shrink)

One of the most potent motivations for retributivist approaches to punishment has been their apparent connection to an ethical background shaped by the Kantian notion of morally autonomous and rational human agency. The present article challenges the plausibility of this connection. I argue that retributivism subverts, rather than embodies, the normative consequences of moral autonomy, justifying a social practice that conflicts with the considered judgments that the proper recognition of moral autonomy would authorize. The core of my case is the (...) analysis of whether a punishment should be understood as a restriction of a criminal's freedom properly understood. I argue that the affirmative view faces serious difficulties that have not been, and are not likely to be, resolved by retributivist justifications that draw their support from Kantian moral theory. (shrink)

Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of punishment must pay close attention to the unintentional (...) burdens of punishment. In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete. -/- [This paper has been published under a Creative Commons Attribution-NonCommercial-ShareAlike license.]. (shrink)

Retributivism is regarded by many as an attractive theory of punishment. Its primary assumption is that persons are morally responsible agents, and it demands that the social practices of punishment acknowledge that agency. But others have criticized retributivism as being barbaric, claiming that the theory is nothing more than a rationalization for revenge that fails to offer a compelling non-consequentialist justification for the infliction of harm. Much of the contemporary philosophical literature on retributivism has attempted to meet this criticism. One (...) common move has been to recast retributivism within the social contractarian tradition. The argument is that the justification for retributive punishment flows naturally from social contractarian political theories. Thus, not only is it reasonable to claim that wrongdoers merit punishment independent of any consequentialist concerns, but that fairness requires retributive punishment. While allying retributivism with social contractarianism provides retributivism with a nonconsequentialist justification for punishment (one fuller and less problematic than the conception of "desert" that worries the critics of retributivism), I will argue that far from strengthening the justification of retributivism, social contractarianism weakens it. For this version of the theory invites the Marxist charge that our society is ordered by profoundly unfair political and social institutions, and that to justify punishing the criminals disadvantaged by such institutions with the claim that fairness requires their punishment approaches a cruel joke. Some have defended the contractarian-based theory of retributivism against the Marxist criticism by claiming that it does not require the punishment of such individuals precisely because social relations are unfair. I will conclude in this paper that although such a move is appealing, it is untenable. And if such a move is not open to the retributivist, she is now in the uncomfortable position of either turning a blind eye to the injustices by which many criminals are victimized or abandoning her retributivist intuitions (the very intuitions that drove her to social contractarianism to bolster her theory of retributivism in the first place). I will conclude that attempts to bolster retributivism by appeal to social contractarianism should be abandoned and retributivists ought instead to seek to develop their theory of punishment within an alternative type of political theory. (shrink)

In this article I am going to propose a modification in the theory of pure restitution, in the hope that such modification will eliminate at least some sources of resistance to the theory, while preserving the theory's distinct place among the philosophical approaches to the institution of legal punishment.

In this paper, I defend fairness-based retributivism against two important objections, the no-benefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory’s distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.

The benefit-fairness theory of punishment, which is one of the most prominent retributive justifications of punishment, appeals to some benefits received by an offender in explaining why it is fair to impose punitive burdens on him. However, many see the two traditional versions of the theory, found in the works by writers such as Herbert Morris, Jeffrie Murphy, and George Sher, as being susceptible to fatal objections. In a recent paper, “Fairness, Political Obligation, and Punishment,” Zachary Hoskins offers a new (...) version of the benefit-fairness theory of punishment. I will highlight his original contribution by showing how his version of the benefit-fairness theory of punishment is different from the traditional versions in such a way that the main objections applying to the traditional versions do not apply to his account. Nonetheless, despite its many virtues, I will argue that Hoskins’s theory fails because it would entail disproportionate punishment. (shrink)

What I call the Just Distribution theory of punishment holds that the justification of punishment is that it rectifies the social distribution of benefits and burdens which has been upset by the offender. I argue that a recent version of this theory is no more viable than earlier versions. Like them, it fails in its avowed intention to deliver fundamental intuitions about crime and punishment. The root problem is its foundation in Hart's Principle of Fair Play, a foundation which, I (...) argue, is inappropriate for a theory of punishment. (shrink)

Current sentencing practice in England and Wales is incoherent. This stems from the combination of conflicting philosophies of punishment, with no clear method adopted by sentencers in choosing between them. This presents a significant challenge as sentencing can have a profound impact on an offender’s life, as well as having wider implications for family members. Therefore, a coherent decision-making process is essential in order to limit arbitrary sentencing and support the legitimacy of the penal system. This thesis argues that Restorative (...) Justice might offer a more coherent decision-making process. Restorative Justice is hypothesised to operate as a kind of mediation process between the philosophies of punishment and understandings of justice held by participants. Their voluntarily agreed outcome should therefore represent the best possible compromise between participants’ ideas of justice and philosophies of punishment. Analysis of existing empirical research has been undertaken, involving the examination of existing studies of Restorative Justice in Northern Ireland, England and Wales, Australia and New Zealand. This empirical research has explored problems which can arise in practice for the theoretical conception of Restorative Justice as a mediation process between ideas. The thesis concludes that Restorative Justice can in theory offer a more coherent process of sentencing, but that there are a number of obstacles to realising this in practice. (shrink)