Rethinking Criminal Justice

Res Philosophica 97 (2):169-183 (2020)
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The punitive, moralizing conception of individual responsibility commonly associated with retributive justice exaggerates the moral meaning of criminal guilt. Criminal guilt does not imply moral desert, nor does it justify moral blame. Mental illness, intellectual disability, addiction, immaturity, poverty, and racial oppression are factors that mitigate our sense of a wrongdoer’s moral desert, though they are mostly not treated by the criminal justice system as relevant to criminal culpability. The retributive theory also distracts from shared responsibility for social injustice. Instead of highlighting the moral urgency of correcting conditions that help to explain the crime rate, a commitment to retribution diverts attention from the social conditions that engender crime. These conditions include an unequal distribution of social, economic, and political power, which poses a serious problem for the retributive theory. When disadvantaged members of society act in ways that violate the criminal law, they are less morally blameworthy, even when the laws they violate are justified. Judgments of blame and desert, in relation to criminal justice, vary in accordance with political status. The diminished political power of oppressed groups is at odds with a retributive justification of punishment.



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Erin I. Kelly
Tufts University

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