Criminal justice systems have traditionally relied heavily on human decision-making, but new technologies are increasingly supplementing the human role in this sector. This paper considers what general limits need to be placed on the use of algorithms in sentencing decisions. It argues that, even once we can build algorithms that equal human decision-making capacities, strict constraints need to be placed on how they are designed and developed. The act of condemnation is a valuable element of criminal sentencing, and using algorithms (...) in sentencing – even in an advisory role – threatens to undermine this value. The paper argues that a principle of “meaningful public control” should be met in all sentencing decisions if they are to retain their condemnatory status. This principle requires that agents who have standing to act on behalf of the wider political community retain moral responsibility for all sentencing decisions. While this principle does not rule out the use of algorithms, it does require limits on how they are constructed. (shrink)

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by (...) building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim that a reformed offender (...) will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value. (shrink)

Retributivist approaches to the philosophy of punishment are usually based on certain claims related to moral desert. I focus on one such principle:Censuring Principle : There is a moral reason to censure guilty wrongdoers aversively.Principles like CP are often supported by the construction of examples similar to Kant’s ‘desert island’. These are meant to show that there is a reason for state officials to punish deserving wrongdoers, even if none of the familiar goals of punishment, such as deterrence, will be (...) achieved. When suitable variants of such examples are presented, however, it is evident that there cannot be much reason to punish such wrongdoers, even if there is some. The same problem besets claims that there is intrinsic value in the suffering of wrongdoers, or that wrongdoers deserve to suffer. All such claims are relatively weak normatively. (shrink)

This article critically examines the rationales for the well-settled principle in sentencing law that an offender’s remorse is to be treated as a mitigating factor. Four basic types of rationale are examined: remorse makes punishment redundant; offering mitigation can induce remorse; remorse should be rewarded with mitigation; and remorse should be recognised by mitigation. The first three rationales each suffer from certain weaknesses or limitations, and are argued to be not as persuasive as the fourth. The article then considers, and (...) rejects, two arguments against remorse as a mitigating factor in sentencing: that the crime, not the offender, is the focus of punishment; and that the truly remorseful offender would not ask for mitigation. The article concludes with a brief consideration of whether a lack of remorse should be an aggravating factor. (shrink)

The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified (...) malum prohibitum the wrongness of which resides in its being a violation of a justified immigration regulation; according to the third, IM is a malum in se the wrongness of which resides in its harmful consequences for receiving states’ citizens. My thesis is that none of these arguments succeeds in providing us with sufficiently good reasons to justify the use of criminal punishment to enforce the closure of state borders. As regards the first, I argue that it relies on a misleading conception of what is entailed by states’ territorial sovereignty, and that therefore it is unsound as an argument for the state’s right to control immigration. With regard to the second, I argue that, be they legitimate or not, immigration regulations enacted by states cannot provide those would-be immigrants they aim to exclude with content-independent reasons to comply with them; and this is a necessary pre-condition to conclude that IM is a justified malum prohibitum. As regards harm-based approaches, I argue that the notions they rely on are completely unfit as criteria for criminalization. This leads me to the conclusion that, unless other more convincing arguments are provided for, IM should not be criminalized. (shrink)

Content note: This paper discusses rape throughout.Abstract. In this paper, I consider arguments in favor of jury trials. While I find these generally persuasive, I argue that there can be cases where juries are not fit for purpose. In those cases, I argue that they should be replaced by judge-only trials. In doing so, I propose a framework for determining whether a type of case is unsuitable for jury trials. Partly in response to low conviction rates, there have been recent (...) suggestions that rape trials should be conducted without juries. I suggest that there is strong evidence that these offences qualify under the criteria I have described. As a result, I argue that judge-only trials should be adopted for trying rape cases. (shrink)

The subprime mortgage crisis which was caused to a large degree by questionable mortgage lending and securitization practices that were furthered by deregulatory policies devastated the economy, led to large scale unemployment, and caused the foreclosure of millions of homes. There is evidence that numerous mortgage companies, financial firms, rating agencies, and high-level professionals were involved in unethical and often fraudulent business practices leading to the most severe economic meltdown since the Great Depression. In spite of the great economic and (...) social harm, there was a lack of criminal sanctions against those companies and individuals, who were involved in creating the crisis that reached even global dimensions. This article analyses the reasons for and the possible social impacts of the lack of criminal sanctions against those who crossed the line between unethical and criminal business practices. (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)

This article discusses substances/techniques that target the brain in order to enhance sports performance (known as “neurodoping”). It considers whether neurodoping in mind sports, such as chess, is unethical and whether it should be a crime. Rather than focusing on widely discussed objections against doping based on harm/risk to health, this article focuses specifically on the objection that neurodoping, even if safe, would undermine the “spirit of sport”. Firstly, it briefly explains why chess can be considered a sport. Secondly, it (...) outlines some possible substances/methods that could be used in order to enhance chess performance and justifies the article’s focus on one potential form of neurodoping in particular – “mental stamina enhancement”. Thirdly, this article casts doubt on certain arguments that mental stamina enhancement would be unethical and contrary to the spirit of sport (as defined by WADA). This article stresses the importance of distinguishing the ethical argument that doping violates the “spirit of sport” from the definitional objection that once doping becomes routine in a certain “sport”, it would not count as a sport anymore. The fourth section discusses the definitional objection and argues that mental stamina enhancement in chess might disqualify chess from being a “sport” (according to traditional, rather than revisionist definitions of sport). Yet, it argues that this definitional objection does not provide strong enough grounds to justify the state or sports authorities imposing severe penalties (such as criminalisation or life-long suspensions from competing) for non-harmful neurodoping. The fifth section of the article argues that criminalising non-harmful neurodoping would be disproportionate. (shrink)

Advances in neuroscience might make it possible to develop techniques for directly altering offenders’ brains, in order to make offenders more responsible and law-abiding. The idea of using such techniques within the criminal justice system can seem intuitively troubling, even if they were more effective in preventing crime than traditional methods of rehabilitation. One standard argument against this use of brain interventions is that it would undermine the individual’s free will. This paper maintains that ‘free will’ (at least, as that (...) notion is understood by those who adopt the influential compatibilist approach) is an inadequate basis for explaining what is problematic about some direct brain interventions. This paper then defends an alternative way of objecting to certain kinds of direct brain interventions, focusing on the relationship between the offender and the state rather than the notion of free will. It opposes the use of interventions which aim to enhance ‘virtue responsibility’ (by instilling particular values about what is right and wrong), arguing that this would objectify offenders. In contrast, it argues that it may be acceptable to use direct brain interventions to enhance ‘capacity responsibility’ (i.e. to strengthen the abilities necessary for the exercise of responsible agency, such as self-control). Finally it considers how to distinguish these different kinds of responsibility enhancement. (shrink)

According to relational egalitarians, equality is not primarily about the distribution of some good but about people relating to one another as equals. However, compared with other theorists in political philosophy – including other egalitarians – relational egalitarians have said relatively little on what role personal responsibility should play in their theories. For example, is equality compatible with responsibility? Should economic distributions be responsibility-sensitive? This article fills this gap. I develop a relational egalitarian framework for personal responsibility and show that (...) relational equality commits us to responsibility. I develop two sets of arguments. First, I draw on relational theories of moral responsibility – particularly Strawsonian views – to show that valuable egalitarian relationships require responsibility. Second, I show why relational equality sometimes requires that economic distributions be sensitive to responsibility and choice. I also defend a seemingly paradoxical result: being committed to responsibility, relational egalitarianism not only justifies some distributive inequalities but some relational inequalities too. Overall, relational egalitarianism gives a nuanced and coherent answer as to why and how responsibility matters from within egalitarianism. That it does should be an important argument in its favour. (shrink)

The orthodox reading of Peter Strawson's “Freedom and Resentment” tends to hide interesting elements of its underlying argumentative structure. Recognition of a distinction Strawson draws between two classes of reactive attitudes raises a question about how the distinct discussions are related. The orthodox reading seems to assume the only relevant difference between the two classes is one of perspective; however, this reading obscures the analogical nature of Strawson's argument and encourages a conflation of distinct elements within that argument. In this (...) paper, I show that an analogical interpretation of the relationship between the distinct classes of attitudes reveals differences between them that have interesting implications for the secondary literature that has developed around Strawson's famous essay. (shrink)

The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment. In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the other, (...) presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked. (shrink)

Steven Tudor defends the mitigation of criminal sentences in cases in which offenders are genuinely remorseful for their crimes. More than this, he takes the principle that such remorse-based sentence reductions are appropriate to be a ‘well-settled legal principle’—so well settled, in fact, that ‘it is among those deep-seated commitments which can serve to test general theories as much as they are tested by them’. However, his account of why remorse should reduce punishment is strongly philosophical in character. He sets (...) to one side the many practical difficulties in implementing such reductions in the real world of criminal justice institutions so that he can focus on the question of whether a plausible account of sentencing can show that remorse should mitigate punishment. I contend that Tudor’s defense of such reductions is unpersuasive in certain respects. Yet even if it can be made more persuasive, I argue that the conditions that would have to be satisfied for remorse-based sentence reductions to be justifiably implemented are so many and various that they would likely exceed our abilities to responsibly grant them in real world legal contexts. I therefore claim that Tudor has failed to provide a defense of the ‘remorse principle’ that serves to explain or justify existing legal practices. (shrink)

This article starts from the observation that in classical Athens the discovery of democracy as a normative model of politics has been from the beginning not only a political and a legal but at the same time a philosophical enterprise. Reflections on the concept of criminal law and on the meaning of punishment can greatly benefit from reflections on Athenian democracy as a germ for our contemporary debate on criminal justice in a democracy. Three main characteristics of the Athenian model (...) will be analysed: the self-instituting capacity of a democracy based on participatory and reflective citizenship, political power as the capacity of citizens for co-operating and co-acting with others, and the crime of hubris as one of the key issues in Athenian criminal law. These analyses will lead to the conclusion that one of the key issues of a democratic legal order lies in its capacity of recognizing the fragility of the human condition and of developing workable and effective standards of justice in that context. A relational conception of criminal law and punishment, based on proportionality, reflexivity, mutual respect and responsibility fits best with a democracy under the rule of law. (shrink)

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity (...) are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability. (shrink)

This article considers and criticizes criminal law‘s assumption of the moral autonomy of individuals, showing how that view rests on questionable and obscure Kantian commitments about the self, and proposes a naturalistic alternative developed through a synthetic reading of Adorno‘s and Bhaskar‘s account of the subject in relation to nature and society. As an embodied, emergent, changing subject whose practically rational powers are emergent, polymorphous, and contingent, the subject‘s moral autonomy is dependent on the conditions for experiences of solidarity in (...) four-planar nature. This view makes criminal theory‘s Autonomy Assumption look deeply questionable; autonomy must be a complex, nuanced open question, not an abstract, a priori default assumption. (shrink)

It appears at least intuitively appropriate to claim that we owe it to victims to punish those who have wronged them. It also seems plausible to state that we owe it to society to punish those who have violated its norms. However, do we also owe punishment to perpetrators themselves? In other words, do those who commit crimes have a moral right to be punished? This work examines the sustainability of the right to be punished from the standpoint of the (...) two main theories of rights—the will and the interest conceptions. The right to be punished is shown to be largely indefensible on both accounts: on the will theory, the right to be punished conflicts with autonomy, and it can neither be claimed nor waived by a perpetrator; on the interest theory, a perpetrator’s interest in punishment, inasmuch as it exists, is not sufficient to ground a duty on the part of the state. (shrink)

Over the past generation, forgiveness has entered the political sphere in countries all over the globe that are addressing the past injustices of war, dictatorship, genocide, and the maltreatment of native peoples. Among the international community, however, the practice is controversial, criticized as unjust for burdening victims and foregoing deserved punishment. This essay argues that forgiveness is not contrary to justice but rather reflective of it if justice means restoration of right relationship, a concept embedded in the scriptures and traditions (...) of Judaism, Christianity, and Islam. Conceived of in this way, forgiveness can avoid the potential injustices with which it is charged and contribute positively to the reconstruction of political orders. (shrink)

Time passed after the commission of a wrong can affect how we respond to its agent now. Specifically it can introduce certain forms of complexity or ambivalence into our blaming responses. This paper considers how and why time might matter in this way. I illustrate the phenomenon by looking at a recent real-life example, surveying some responses to the case and identifying the relevant forms of ambivalence. I then consider a recent account of blameworthiness and its development over time that (...) purports to account for this ambivalence. Blameworthiness, on this account, consists in a psychological flaw; time matters because it brings the possibility of change in the agent, and ambivalence arises because it is hard to know to the extent of such change. This account, I argue, mischaracterises responses to the case and misidentifies the source of their ambivalence. Drawing on recent work in the philosophy of emotion, I sketch an alternative approach. Our responses, I suggest, make sense within processes through which we address wrongdoing. Time matters because these processes take time and because time’s having passed raises the question whether and how the wrong has been addressed. Unaddressed wrongs can elicit ambivalence of a specific form. (shrink)

The focus of this essay is on how we overcome the past by dealing with it. In this setting, the analysis is of the relationship between ‘moral transactions’ concerning blame, guilt, responsibility, apology and forgiveness and the possibility of transition away from states of trauma. The first section draws on previous work to set out a position on human love as the basis for an understanding of guilt and the ‘moral grammar’ of justice. The second section considers Martha Nussbaum’s claim (...) in Anger and Forgiveness that the idea of transition should be prioritized at the cost of a moral transactional analysis that would engage the moral grammar of blame, guilt, responsibility, apology and forgiveness. The latter is seen as potentially obstructing the transition to a better world. I suggest to the contrary there are grounds for thinking that a successful transition requires relevant moral transactions. (shrink)

In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing [e.g., Alexander and Ferzan, Chiao, Walen ]. We then turn to some (...) influential theories that articulate a direct role for intentions [e.g., Duff, Husak ]. While we endorse the commitment to such a role for intentions, we believe that extant theories have not yet been able to adequately address certain objections or solve certain puzzles, such as that some attempt convictions require criminal intent when the crime attempted, if successful, requires only foresight, and that some intended harms appear to be no more serious than non-intended ones of the same magnitude, for example. Drawing on a variety of resources, including the specific version of the Doctrine of Double Effect we have developed in recent published work, we present solutions to these puzzles, which in turn provide mutual support for our general approach to the role of intentions and for thinking that using others as means is itself a special kind of wrongdoing. (shrink)

Retributivist accounts of punishment maintain that it is right to punish wrongdoers, even if the punishment has no future benefits. Research in experimental economics indicates that people are willing to pay to punish defectors. A complementary line of work in social psychology suggests that people think that it is right to punish wrongdoers. This work suggests that people are retributivists about punishment. However, all of the extant work contains an important potential confound. The target of the punishment is expected to (...) be aware of the punitive act. Thus, it's possible that people punish because they want to communicate something to the wrongdoer, e.g. disapproval, the presence of a norm, etc. In three studies, we examine whether people will punish even when the punishee will be ignorant. We find that people are no less likely to punish when the punishee will be ignorant. This finding emerges both in a survey study and in a monetized behavioural decision study. (shrink)

Many believe that a citizen who engages in civil disobedience is not exempt from the sanctions that apply to standard law-breaking conduct. Since he is responsible for a deliberate breach of the law, he is also liable to punishment. Focusing on a conception of responsibility as answerability, I argue that a civil disobedient is responsible (i.e. answerable) to his fellows for the charges of wrongdoing, yet he is not liable to punishment merely for breaching the law. To support this claim, (...) I defend an account of political obligation framed in terms of respect for (rather than mere obedience to) the law, and argue that the mere illegality of civil disobedience does not suffice to establish wrongdoing. I then discuss and reject three objections to my argument. (shrink)

In this contribution we will explore some of the implications of the vision of Ambient Intelligence (AmI) for law and legal philosophy. AmI creates an environment that monitors and anticipates human behaviour with the aim of customised adaptation of the environment to a person’s inferred preferences. Such an environment depends on distributed human and non-human intelligence that raises a host of unsettling questions around causality, subjectivity, agency and (criminal) liability. After discussing the vision of AmI we will present relevant research (...) in the field of philosophy of technology, inspired by the post-phenomenological position taken by Don Ihde and the constructivist realism of Bruno Latour. We will posit the need to conceptualise technological normativity in comparison with legal normativity, claiming that this is necessary to develop democratic accountability for the implications of emerging technologies like AmI. Lastly we will investigate to what extent technological devices and infrastructures can and should be used to achieve compliance with the criminal law, and we will discuss some of the implications of non-human distributed intelligence for criminal liability. (shrink)

Once relegated to the margins of the responsibility debate, moral influence theories have recently been rehabilitated. This paper offers a moral influence theory with two parts: a theory of responsibility as influenceability and an act-consequentialist justification of blame. I defend this account against six concerns commonly raised both by opponents and by advocates of similar views. Some concerns target act consequentialism, claiming that it 1) permits blaming innocents; 2) permits coercion, manipulation, and other objectionable forms of influence; and 3) fails (...) to capture intuitions about desert. Other concerns target responsibility as influenceability, claiming that influenceability accounts are 4) unsophisticated, 5) make ascriptions of responsibility dependent on assessments of permissible blame, and 6) have various counterintuitive implications. (shrink)

I propose a theory of punishment that is unfamiliar in the West, according to which the state normally ought to have offenders reform their characters and compensate their victims in ways the offenders find burdensome, thereby disavowing the crime and tending to foster improved relationships between offenders, their victims, and the broader society. I begin by indicating how this theory draws on under-appreciated ideas about reconciliation from the Global South, and especially sub-Saharan Africa, and is distinct from the protection and (...) retribution theories that have dominated the Western philosophy of punishment for about 250 years. Then I argue that it neatly avoids objections to them and is prima facie plausible in its own right. I conclude that this reconciliation theory of state punishment should be taken seriously by philosophers of law and policy makers. (shrink)

‘Optimistic’ normative theories of criminal justice aim to justify criminal sanction in terms of its reprobative/rehabilitative value rather than its punitive nature as such. But do such theories accord with ordinary intuitions about what constitutes a ‘just’ response to wrongdoing? Recent empirical work on the psychology of punishers suggests that human beings have a ‘brutely retributive’ moral psychology, making them unlikely to endorse normative theories that sacrifice retribution for the sake of reprobation or rehabilitation; it would mean, for example, that (...) we cannot expect people to support such optimistic theories democratically, calling their feasibility into question. Taking the civic republican theory as an exemplar of optimistic theories, we argue that it does not fail this feasibility test. We review recent empirical research, including studies of our own, to support the claim that, far from being brute retributivists, human beings are generally satisfied only with punishment that delivers something other than mere retribution. And we show that this coheres very closely with the goals and policies that civic republicanism would support, as it may be expected to cohere also with other optimistic proposals. (shrink)

This paper is concerned with the tensions that arise when one juxtaposes one important liberal understanding of the nature and use of state power in circumstances of pluralism and (broadly) retributive accounts of punishment. The argument is that there are aspects of the liberal theory that seem to be in tension with aspects of retributive punishment, and that these tensions are difficult to avoid because of the attractiveness of precisely those features of each account. However, a proper understanding of both (...) liberalism and retributive punishment allows us to dissolve some of the tensions whilst also bringing each position into sharper relief. The paper begins by introducing the liberal position and outlining the apparent tensions that may arise with retributive punishment. In so doing, there is also a brief discussion of how this debate relates to the more familiar dispute between legal moralists and their opponents. The paper then proceeds by considering each of the areas of tension in turn. (shrink)

Lisa Tessman (2016: 164) recounts the case of a Jewish mother, running from Nazis, who faced a terrible choice. She could (a) drown her infant, or (b) accept the virtual certainty that her baby’s cries would doom the refugee group she was fleeing with. Given those options, (b) is worse. If the whole group is discovered, many will die, including the infant. Still, preemptively drowning a baby—indeed one’s own baby—is a terrible act. To make sense of cases like this, Tessman (...) turns to the concept of moral failure: an act that violates an important moral value such that the loss cannot be fully redeemed by gains elsewhere. I will argue that criminal justice needs a moral framework like Tessman’s. It needs to make sense of the fact that some options are genuinely better than others, without letting honorifics like ‘justice’ obscure the equally important fact the best available option might be terrible. More specifically, I will argue that when punishment involves prison, as it often does, it is a moral failure. It can be justified only in the sense that preemptively drowning an infant can be justified: like the fleeing mother, society might on some terrible occasions find itself with no better alternative. (shrink)

Whether or not we call a love-like relationship with robots true love, some people may feel and claim that, for them, it is a sufficient substitute for love relationship. The love relationship between humans has a special place in our social life. On the grounds of both morality and law, our significant other can expect special treatment. It is understandable that, precisely because of this kind of relationship, we save our significant other instead of others or will not testify against (...) her/him. How as a society should we treat love-like relationships humans with robots? Based on the assumption that robots do not have an inner life and are not moral patients, I defend the thesis that this kind of relationship should be protected by criminal law. (shrink)

Punishment is a grave intrusion into individual liberty, yet in most liberal criminal justice systems, including England and Wales, those punished are rarely directly engaged in determining their sentence. Consequently, the offender’s agency in respect of sentence—i.e. the offender’s capacity to play an active part in the sentencing process—is limited. Drawing on existing theories of punishment, the article argues that there may be justifications and scope for allowing offenders to exercise agency in a state-centred sentencing process, even though this scope (...) is inevitably limited. It aims to develop a conceptual account of an ‘agentic’ sentencing system, arguing this should be based on the paradigm of a dialogue between the judge and offender. To preserve the state’s fundamental role in sentencing, constraints should be placed on the exercise of agency. The proposed model embodies a conception of sentencing as a decision-making process to be done _with_ offenders, rather than _to_ offenders. Nonetheless, while some objections can be rebutted, others demonstrate the gap between the theoretical ideal of respecting the offender’s agency at sentencing and how an agentic sentencing system might function in practice. (shrink)

Our conversations about punishment have been constrained by the presumption that crimes ought to be punished. This presumption does not entail that crimes must be punished, but rather that punishment occurs as a natural response to wrongdoing instead of as a conventional creation. As a consequence, the challenges for punishment’s justification have been reduced to the problems of purpose, opportunity and form, leaving unaddressed the question of the authority of a certain polity to impose this form of treatment on a (...) given individual. In order to present and criticize this presumption, the article traces its origins by revisiting the debate about the nature of punishment that took place during the emergence of liberal political philosophy. After evaluating the main arguments of this debate the article concludes by arguing that liberal theories of punishment should give up this presumption. (shrink)

Numerous retributivists hold that deserved punishment has intrinsic value. A number of puzzles regarding that claim are identified and discussed. An alternative, more Kantian account of intrinsic value is then identified and the ways in which legal punishment might be understood to cohere with it are explored. That account focuses on the various ways in which legal punishment might be persons-respecting. It is then argued that this Kantian account enables us to solve or evade the puzzles generated by the other (...) intrinsic value account. (shrink)

Children of prisoners are often negatively affected by their parents’ incarceration, which raises issues of justice. A common view is that the many negative effects associated with parental imprisonment are unjust, simply because children of prisoners are impermissibly harmed or unjustly punished by their parents’ incarceration. We argue that proposals of this kind have problems with accounting for cases where it is intuitive that prison might create social injustices for children of prisoners. Therefore, we suggest that in addition to the (...) question of whether children of prisoners are impermissibly harmed, we should ask whether the inequalities that these children endure because of their parent’s incarceration are objectionable from a social justice perspective. To answer this latter question, we examine the negative effects associated with parental imprisonment from the perspective of luck egalitarianism. We develop a luck egalitarian account that incorporates insights from the philosophy of childhood. On our account, children of prisoners might endure two different types of objectionable inequalities, since they are often deprived of resources that are important for ensuring fair equality of opportunity in adulthood, but also because they are likely to suffer inequalities in terms of childhood welfare. After defending this account, we explore its implications for policy. (shrink)

This paper discusses what kinds of conflicts arise when a crime has been committed, and with whom—and in which of their possible roles—the offender should be seen as having such conflicts. The possible roles of the victim are in focus, as is the constitutive role of the act of criminalizing a certain kind of behavior. It is argued that while in the tort conflict the victim should be seen as a party qua him- or herself in a ‘fuller’ sense (and (...) with full freedom on how to handle the conflict, including dropping it), in the criminal law conflict it is community, the ‘we’, that should be looked upon as the party to the conflict with the offender. The victim should not be seen as excluded from the criminal law conflict, though: to the contrary, he or she is a member of community and has an important role to play. This role, however, needs to be strictly defined in a way that gives the victim the function of a certain kind of representative for ‘us’, the community. This role should not allow the victim much room to influence how the criminal law conflict is handled. The model I am suggesting presupposes—I think, at least—that criminal law conflict and tort conflict should be handled together at the same trial. (shrink)

According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. (...) These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed. (shrink)

Many people have the intuition that the failure to impose punishment on perpetrators of such serious human rights violations as murder, torture and rape that occurred in the course of violent conflict preceding a society’s transition from authoritarianism to democracy amounts to an injustice. This intuition is to an appreciable extent accounted for by the retributivist outlook of a high proportion of those who share it. Colleen Murphy, however, though she accepts that retributivism may justify punishment of offenders in stable (...) democracies, claims in her recent book on transitional justice that retributivism is inapplicable in the circumstances of transitional justice. I argue that the four arguments she provides in support of this claim are unsuccessful and that retributivism, assuming it to be a tenable rationale for punishment, justifies the subjection of perpetrators of at least some serious human rights abuses to sanctions in at least some transitional societies. (shrink)

I assess the force of a justification for post-conflict amnesties that is aimed at overcoming the most common objection to their conferral: that they entail retributive injustice. According to this justification, retributivists ought to consider amnesties to be justified because they are analogous to plea bargains, and because retributivists need not consider plea bargains to be unacceptable. I argue with reference to the 2001 Timor-Leste immunity scheme that amnesties conditional upon perpetrators’ not only admitting guilt and confessing but also making (...) reparations may count as plea bargains. I show that plea bargains providing sentence discounts in return for guilty pleas, allowing offenders who accept these bargains to be punished in the absence of trials, and plea bargains offering leniency in punishment in exchange for offenders pleading guilty and providing testimony or other incriminating evidence against superiors or accomplices, may be consonant with versions of retributivism that allow less than the full measure of an offender’s deserved punishment to be exacted where necessary to maximise or expand deserved punishment overall. I argue that amnesties that are also plea bargains may be considered justified by plea bargain-defending retributivists. So too may amnesties conferred in exchange for perpetrators’ admitting guilt and providing incriminating testimony or other evidence against their superiors and accomplices, some of which count as plea bargains, since they too could in some cases maximise or expand deserved punishment. (shrink)

In this paper, I propose a new self-defense theory of punishment, the rights-protection theory. By appealing to the interest theory of right, I show that what we call “the right of self-defense” is actually composed of the right to protect our basic rights. The right of self-defense is not a single, self-standing right but a group of derivative rights justified by their contribution to the protection of the core, basic rights. Thus, these rights of self-defense are both justified and constrained (...) by the basic rights they are supposed to protect. I then explain how this theory responds to a common objection. Opponents argue that, to exercise the right of self-defense, some threat must be present. However, in the context of punishment, the threat has already taken effect or is already gone. Thus, the right of self-defense becomes irrelevant when we punish an offender. I show that this objection is based on an implausibly narrow conception of self-defense. A reasonable conception would allow us to exercise our right of self-defense when there is a present definite threat, a future definite threat, or a potential threat. Thus, we may still exercise our right of self-defense in the context of punishment. (shrink)

Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the criminal law (...) cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority. (shrink)

The Limits of Blame, by KellyErin I. Cambridge, MA: Harvard University Press, 2018. Pp. 221.

In his latest monograph, The Realm of Criminal Law, Antony Duff gives us a further, magisterial statement of the vision of criminal law, its procedural framework, and its sanctioning system, which he has been developing over the past 35 years. This is Duff’s own book-length contribution to the tremendously fruitful collaborative Criminalization project. That project has already generated four edited volumes and two fine monographs by Farmer and Tadros. It will shape the field for decades to come; and it has (...) decisively laid to rest a longstanding puzzle about why, within criminal law theory, the principles underlying criminalisation had received relatively little attention as compared with those underlying, most obviously, criminal responsibility. (shrink)

The belief that people convicted of crimes deserve punishment is commonplace. Yet the punitive conception of individual responsibility commonly associated with ‘just deserts’ exaggerates the moral meaning of criminal guilt, normalizes excessive punishment, and distracts from shared responsibility for social injustice. The problem is, many people who get caught up in the criminal justice system cannot reasonably be thought to deserve their fate. Mental illness, intellectual disability, addiction, trauma, and poverty are morally mitigating factors when it comes to assessing how (...) blameworthy a person is for criminal behavior. But with the exception of extreme forms of mental illness that fall into the very narrow legal category of ‘insanity,’ people who struggle with serious difficulties are not treated as less blameworthy by the criminal justice system. The criteria of legal guilt does not match up well with the moral concept of blameworthiness.The solution might seem to be somehow to refine legal practice to make blame more context-sensitive, but I argue that rather than try to revise our criminal justice practices to fit better with common notions of blame and desert, we should get out of the public blaming business altogether. A determination morally to condemn individual offenders is not helping us to resolve the disaster of mass incarceration or the problems faced by returning citizens. It does not help us to see clearly the connection between crime and other problems of social injustice, like poverty, lack of mental health care, drug addiction, racial discrimination, and violence. Were we to be less fixated on individual responsibility, and more cognizant of our shared responsibility to treat all members of society as equal persons, entitled to the same basic rights, liberties, and opportunities, we might be in a better position to work collectively to address problems of social injustice that contribute to the problem of crime. (shrink)