Standing to Punish the Disadvantaged

Criminal Law and Philosophy (3):1-23 (2022)
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Abstract

Many philosophers and legal theorists worry about punishing the socially disadvantaged as severely as their advantaged counterparts. One philosophically popular explanation of this concern is couched in terms of moral standing: seriously unjust states are said to lack standing to condemn disadvantaged offenders. If this is the case, institutional condemnation of disadvantaged offenders (especially via hard treatment) will often be unjust. I describe two problems with canonical versions of this view. First, its proponents groundlessly claim that disadvantaged offenders may be punished as severely as advantaged ones, even though such punishment is unjust in light of the state’s loss of standing. Second, and more importantly, moral standing arguments prohibit states from blaming advantaged as well as disadvantaged offenders. This unwelcome outcome suggests that standing approaches incorrectly analyze the source of moral misgivings about punishing the disadvantaged. I conclude that those who share such concerns should put standing accounts aside.

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Benjamin S. Yost
Cornell University

References found in this work

Two concepts of rules.John Rawls - 1955 - Philosophical Review 64 (1):3-32.
Punishment and Responsibility.H. L. A. Hart - 1968 - Philosophy 45 (172):162-162.
The Expressive Function of Punishment.Joel Feinberg - 1965 - The Monist 49 (3):397-423.
Punishment, Communication, and Community.R. A. Duff - 2003 - Philosophical Quarterly 53 (211):310-313.

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