Nearly one in every 100 adults in the United States is in jail or prison today. In a period dominated by calls to roll back the government in all areas of social and economic policy, we have witnessed its massive expansion in the realm of penal policy since the 1970s. The U.S. incarceration rate is now more than 737 per 100,000 people, or five to 12 times the rate of Western European countries and Japan . The reach of the (...) U.S. carceral state extends far beyond the 2.2 million men and women currently in prison or jail in the United States. On any given day, over 7 million people__or 1 in every 32 adults__are incarcerated or on probation or parole . This rate of state supervision is unparalleled in U.S. history.These overall figures on incarceration belie the enormous and disproportionate impact that this bold and unprecedented social experiment has had on certain groups in U.S. society. If current trends continue, one in three black men and one in six Hispanic men are expected to spend some time in jail or prison during their lives . The number of incarcerated African_American men has grown so rapidly over the past quarter_century that today more black men are behind bars than enrolled in colleges and universities .[1]Some contend that growing public dismay over the crushing economic burden of incarcerating and monitoring so many people heralds the beginning of the end of the prison boom . As evidence, they point to recent penal developments in the states. Severe budget deficits prompted by the 2001 recession forced some states to close prisons and lay off guards. Dozens of states experimented with new sentencing formulas, mostly directed at nonviolent offenders.[2] Fiscally conservative Republicans previously known for being penal hard_liners championed some of these recent relaxations in penal policy. This fueled speculation that law_and_order Republicans, troubled by mounting costs, are well poised to roll back the carceral state, much as red_baiter Richard Nixon was ideally situated to breach the great political wall with China.We should be cautious, however, about assuming that fiscal pressures and the recent softening of public opinion sparked by the plummeting crime rate over the past decade will automatically forge a durable consensus that will dismantle the carceral state.[3] It was mistakenly assumed three decades ago that shared disillusionment on the right and the left with the rehabilitative ideal would shrink the prison population. Instead, it exploded. Criminal justice policies often confound conventional distinctions between left and right, particularly on issues related to crime victims. The relationship between political leaders, social movements, interest groups, and governing institutions is highly contingent and volatile in the case of penal policy because the left_right divide is more blurred and because of certain institutional features of the U.S. criminal justice system and welfare state.[4]While economic arguments against the carceral state are important and compelling, they have their limitations. If properly pitched, they can help forge a consensus to reverse the prison boom. But they can also be used to propel mean_spirited budget cuts that do not significantly reduce the size of the prison population__or save much money__ but do render life in prison and life after prison leaner and meaner. Criminal justice reform to reverse the prison boom is a highly fragile project that cannot be underwritten primarily by fiscal concerns. Without some broader vision and movement for change, the U.S. carceral state, trimmed down a little by a few modest sentencing and drug law reforms, will be here to stay. Such a movement is beginning to coalesce in the United States. Opponents have begun to portray the carceral state not only as a financial liability but also as a moral liability and a pressing civil and human rights issue that perverts cherished democratic institutions, like the right to vote. They have also begun to focus public attention on how the prison boom has exacerbated economic and social inequalities and is a growing menace to public health. (shrink)

This book presents an interpretive analysis of the major themes and purpose of Alexis de Tocqueville’s and Gustave de Beaumont’s first work, On the Penitentiary System, thereby offering new insights into Tocqueville as a moderate liberal statesman. The book explores Tocqueville’s thinking on penitentiaries as the best possible solution to recidivism, his approach to colonial imperialism, and his arguments on moral reformation of prisoners through a close reading of Tocqueville’s first published text. The unifying political concept of all three discussions (...) is Tocqueville’s underlying concern to pursue moderation between institutional and imaginative extremes in order to maintain liberal values. In both thinking moderately and advocating for moderate political action, Tocqueville’s On the Penitentiary System renews an emphasis on the importance of civic engagement and the balance between philosophy and praxis. (shrink)

Marc Ancel, Social Defense: The Future of Penal Reform (translated by Thorsten Sellin) Littleton, CO: Fred B. Rothman, 1987, viii + 300 pp.

India is a party to several international laws which speak of the duty to prosecute, investigate, and punish crimes. In light of India’s commitments to international law, the scope of its criminal laws appears to be failing on several counts. The following are a few general and specific recommendations for penal law reforms in India. These have been framed in light of several international developments, international laws, and relevant Indian laws and judgments. The recommendations concern the following themes: 1. (...) gaps in criminal law, 2. harmonization of standards 3. liabilities for derogations from fundamental duties (cultural heritage), and 4. a project for decolonization. (shrink)

This is a fascinating and important study of ideas of justice and punishment held by the ancient Greeks. The author traces the development of these ideas from Homer to Plato, analysing in particular the completely radical new system of punishment put forward by Plato in his dialogue the Laws. From traditional Greek ideas of cursing and pollution through to Plato's views on homicide and poisoning by doctors, this enlivening book has a wealth of insights to interest both ancient historians and (...) classicists, and all those interested in the history of philosophy and ethics. `Quite simply, essential reading.'. (shrink)

Here I set the stage for developing a Kantian account of punishment attuned to social and economic injustice and to the need for prison reform. I argue that we cannot appreciate Kant's own discussion of punishment unless we read it in light of the theory of justice of which it is a part and the fundamental commitments of that theory to freedom, autonomy and equality. As important, we cannot properly evaluate Kant's advocacy of the law of retribution unless we (...) recognize his theory of justice as an ideal theory. Once we understand both Kant's larger account of justice and its relationship to his less basic commitments, we discover grounds to accept that larger theory, but reject components like the law of retribution with their basis in empirical conclusions we may not share with Kant. We also open the way to develop an account of punishment responsive to social circumstances. (shrink)

Cet article a comme principal objectif d'effectuer un bilan critique de certaines thèses du réformisme pénal . La perspective retenue est celle de la responsabilité dans les différentes constructions théoriques du projet réformiste . Je rendrai compte des thèses respectives sur le sujet et je ferai, en conclusion, certains commentaires critiques sur les difficultés pour ces approches réformistes de la responsabilité d'offrir un point de vue cohérent et moralement acceptable de la question.The main objective of this paper is to criticize (...) some propositions of the social doctrine of penal reformism . The perspective adopted is that of the responsability in the different theoritical constructions of the penal reformism doctrine . I will explicite some thesis on the subject and I will do, in my conclusion, some critical commentaries on the difficulties that these three versions of penal reformism face when they have to give a coherent and morally acceptable point of view of the problem of responsibility. (shrink)

This article analyses the definitional reforms and re-categorisation of sexual offences under the Thai Penal Code in the period of 13 years, namely, the 2007 and 2019 amendments. The incidents are of uniqueness as the 2007 amendment shared much resemblance with jurisdictions that have departed the original meaning of rape and attempted to re-conceptualise sexual offences, whereas the 2019 amendment shared much similarities with jurisdictions that decided to retain the original meaning of rape and categorise other serious sexual offences (...) in other names. The article argues that, apart from accounts based on criminal law principles, the two definitional revisions had been carried out in the environments of different legal culture and social values in the Thai legislative bodies. It appears that the 2007 amendment followed a feminist perspective that emphasises the harm of sexual offences to bodily/sexual integrity as a state for individuals to realise their personhood, while the re-categorisation of sexual offences in the 2019 amendment suggests a greater role of the feminist perspective in another camp that views penile-penetration inherently differs from non-penile penetration and implies that the law continues, to a certain extent, regulating sexuality since the 2019 amendment used the reason of “naturalness” of sexual intercourse to distinguish between penile penetration and non-penile penetration. (shrink)

This article aims to consider the issue of criminal responsibility from the Reformed Protestant perspective. Considering the role of social spheres and its origin, the author proposes that the spheres of family, school and Church are independent of the State, and therefore is not part of the State to act as an educator of the people, but its role, according to Scripture, is punitive. The author also deals with aspects of redemptive dilemma, as the major ideological movement in Brazilian society (...) and understands that what is to redeem the evils of society is education - another misconception according to the Reformed view, since it teaches that the redemption of society and its evils is not in an educational system but in a person - Christ. Finally the author deals with the State's responsibilities as a punitive agent and minister of God in the punishment task and restraint the social evil which is the result not of a corrupt system, but the depravity of the human heart. (shrink)

Alexander Maconochie, the originator of the “Mark System”, is a major figure in the history of penal discipline and is best known for his attempt to implement it at the Norfolk Island penal station from 1840 to 1844. Among Maconochie’s many works is the eight-page “Comparison Between Mr. Bentham’s Views on Punishment, and Those Advocated in Connexion with the Mark System”, in which Maconochie rejected Bentham’s critique of transportation, as well as fundamental elements of his theory of punishment. (...) Maconochie concluded that mainstream thinking on penal discipline was dominated by “mistakes” that either “in great measure originat[ed] with Mr. Bentham”, or had been “at least sanctioned by his high authority”.This paper questions whether Maconochie’s rejection of Bentham’s views is entirely convincing, since his penal practices, as well as an earlier and lesser-cited work, indicate that Maconochie was, at times, considerably closer to Bentham’s position on punishment than “Comparison” suggests. Section I will provide some brief biographical background. Section II will explore Maconochie’s attempt to implement his reformative system at Norfolk Island, at the heart of which was surveillance and extensive record-keeping to monitor individual behaviour and progress, and in which there are echoes of Bentham’s panopticon scheme. Section III will examine Maconochie’s changing views on criminal transportation, from his adherence to the Benthamite anti-transportation line in 1818, to his qualified support for transportation from 1838 onwards. Finally, Section IV will examine the Mark System and Maconochie’s criticism of Bentham in more detail. (shrink)

Bentham was an influential thinker with an ‘essentially practical mind’. His influence on British social and political reform, however, was indirect, coming largely after his death and largely through the work of his disciples. Bentham's own attempts to put his ideas directly into practice generally had little effect. He came closest to success in the area of penal policy, winning a contract from Pitt's government in the early 1790s to build and manage a penitentiary that was to be (...) organized on the panopticon principle. Bentham saw the penitentiary as the spearhead of prison reform and as a means of effecting a change from transportation to imprisonment as a punishment for serious crime. While Bentham's use of the panopticon principle itself has attracted most attention in the literature, there was more to his scheme than this. The penitentiary proposals were worked out in great detail, they were a conscious application of his theory of punishment, and they were consistent with and an element of his all-embracing plan of social, political, and constitutional reform. (shrink)

In this contribution we investigate the conceptual coherence of penal substitution and its moral validity. After assessing two opposing modern contributions, we turn to Reformed and medieval scholasticism. This scholastic manoeuvre sheds additional light on the analytic questions at issue. Following Owen and Scotus in their use of a relational analysis of guilt and its punishment, we argue that penal substitution is conceptually and morally coherent, albeit not univocally vis-à-vis ordinary punishment. Absent from the case of substitution is (...) personal deservedness; herein we follow Murphy. However, this leaves open the conceptual possibility of representative deservedness. (shrink)

SummaryThe recent atonement literature reveals a growing trend accepting the thesis that the Reformer’s doctrine just is the biblical doctrine of penal substitution. This is the claim of William Lane Craig in his recent works on the atonement. In the present article, we challenge these set of claims in Craig’s recent works and advance an alternative theory of the atonement that has some significant footing in the Reformed theological tradition, most notably reflected in the theologian, William Ames. Finally, we (...) lay out several reasons why Craig’s doctrine of the atonement fails to capture the biblical data on the atonement and fails to avoid the legal fiction problem parasitic on most, if not all, accounts of penal substitution. (shrink)

Thanks to Michel Foucault, Jeremy Bentham's panopticon has become the iconic modern prison. But Foucault and most of his readers neglect the fact that a significant proportion of Bentham's panoptical writings were concerned with critically contrasting his ideal prison with the reality of penal transportation to New South Wales. Among his many criticisms, Bentham focussed particular attention on the problem of convict reform, arguing that surveillance was necessary to ensure genuine reformation, and that such surveillance was impossible in (...) the open prison of New South Wales. This connection between reformation and surveillance was a pervasive feature of Bentham's thought, reflected in his ideas for a centralised information state as well as his wider corpus on criminal justice. In this paper, I historicise Bentham's theory of reformative surveillance, and argue that Bentham, writing from London, misunderstood the importance of surveillance to the penal colony. At least in theory, convicts in New South Wales were subject to extensive systems of surveillance, and the failure of these systems in practice point to the limitations of Bentham's own, largely hypothetical, plans. (shrink)

In this detailed study of the republican tradition in the development of the Enlightenment, the central problem of utopia and reform is crystallized in a discussion of the right to punish. Describing the political situation in Europe in the seventeenth and eighteenth centuries, the author shows how the old republics in Italy, Poland and Holland stagnated and were unable to survive in the age of absolutism. The Philosophes discussed the ideal of republicanism against this background. They were particularly influenced (...) by the political and religious radicalism of John Toland, which had survived the English Restoration and was then reaching Europe. Professor Venturi traces the debate on the penal laws and the attempt to relate utopian ideas of society to the practical problem of dealing with man in society, which culminated in the assertion by many Philosophes that an unjust social system necessitated harsh penal laws, thereby rejecting the possibility of reform. (shrink)

ABSTRACTI argue that the degree to which a criminal should be punished is determined by three elements: a baseline amount that proportionally compensates the victim and an additional penalty that, first, reforms the criminal and, second, deters others from becoming unjust. My interpretation provides a solution to the interpretive puzzle that has most vexed commentators: the alleged tension between Plato's philosophical theory of punishment and the content of his penal code. I defend a two-step solution to the puzzle. First, (...) on my interpretation, because of the broad role that deterrence must play, this alleged tension is—to a degree—merely apparent. Second, the actual tension can be explained by Plato's commitment to the rule of law, given the epistemic limitations of actual people. (shrink)

I show that the Pinkerton rule in conspiracy law is doctrinally and morally flawed. Unlike past critics of the rule, I propose a statutory fix that preserves and reforms it rather than abolishing it entirely. As I will show, this accommodates authors like Neil Katyal who have defended the rule as an important crime fighting tool while also fixing most of the traditional problems with it identified by critics like Wayne LaFave. Pinkerton is a vicarious liability rule that makes conspirators (...) criminally responsible for the foreseeable crimes of their coconspirators committed in furtherance of the conspiracy. It has two big problems: (1) Doctrinally, it breaks the logic of the many state criminal codes that are based on the Model Penal Code. (2) Ethically, it infringes the culpability constraint on the criminal law by imposing excessive punishments on defendants who did not even consciously suspect that their coconspirators would commit additional crimes that were not the object of the conspiracy. These problems are most acute in Texas, where Pinkerton can be combined with capital murder charges to produce automatic life without parole sentences. The Texas example is an extreme illustration of the problem of unintended consequences when state legislators tinker with the carefully drafted, interlocking provisions of a model code. The new statute I propose would put the penal code back in order and respect the culpability constraint. In the latter aspect, it is informed by leading work in philosophical ethics on blameworthiness and culpability. (shrink)

This book considers the way that Cesare Beccaria's slim 1764 volume On Crimes and Punishments influenced policy developments worldwide and over decades, if not centuries, after its publication. For those who turn to Beccaria's work today, the encounter is shaped by that knowledge. Appreciative of his book's dual nature as historical document and repository of ideas, the contributions in this collection address different aspects of the criminal justice theory Beccaria offered his readers and face up to methodological questions raised by (...) meeting a historical text of this kind - unsystematic and by modern standards often under-argued - with modern scholarly conventions in mind. Contributions in the first part of the book engage with Beccaria's 'political theory of criminal justice' through the lenses of political and penal philosophy. How do we get from Beccaria's blending of social-contractarian foundations and proto-utilitarian policy analysis to the concrete set of criminal justice practices Beccaria presents as justified? This leads across to the second part where contributors approach Beccaria's ideas with present-day reforms and developments in mind. Many of his policy proposals and arguments remain significant from our contemporary perspective, their limitations and omissions proving as instructive for the contemporary scholar as their more prescient elements. The third part offers those looking at Beccaria's work today a glimpse into the practical difficulties facing the firebrand author turned public servant during his long career in the Habsburg-Lombardian administration. It puts his work into the broader context of pathways to criminal justice reform in northern Italy, Habsburgian Lombardy, and the Austro-Hungarian Empire in Beccaria's day. (shrink)

The transitory and ever-evolving process of law making plays a role of primal importance in the regulation of human conduct of society. It goes without saying that in this entire process, judges have a participation. The power entrusted by law and the nature of judicial process, make judges the prime mover of the development of law. It matters how judges decide cases. It matters most to people unlucky or litigious or wicked or saintly enough to find themselves in court... The (...) effect emanating from the decision of a case affects the life of a person in many ways that at times has far reaching impact...When the law in question happens to be criminal law, it requires a cautious consideration to see how the interpretive tools used by judges affect the life of a litigant in ways both seen and unseen... Several areas concerning adjudication and judicial interpretation have been the subject matter of study. This paper includes a discussion on the principle of non- retrospectivity in light of judicial adjudication in criminal matters. (shrink)

With 5,000 convicts, most of them lifers, working soy, corn, and cotton crops, Angola’s “penal slavery” system today eerily recalls Louisiana’s past investment in the peculiar institution. Present-day form of discipline (chain gangs and striped uniforms) also indicate that dehumanization and popular vengeance are the selling points of a new punishment order. Using “America’s worst prison” as a case study, the author charts an archeology of the penal system in the U.S. South, arguing that prison revolts, and particularly (...) the heelslinger revolution of 1951, have historically ushered in significant if short-lived improvements in the penal system, and that activists in the free world must heed them in their efforts to bring about prison reform. (shrink)

With 5,000 convicts, most of them lifers, working soy, corn, and cotton crops, Angola’s “penal slavery” system today eerily recalls Louisiana’s past investment in the peculiar institution. Present-day form of discipline (chain gangs and striped uniforms) also indicate that dehumanization and popular vengeance are the selling points of a new punishment order. Using “America’s worst prison” as a case study, the author charts an archeology of the penal system in the U.S. South, arguing that prison revolts, and particularly (...) the heelslinger revolution of 1951, have historically ushered in significant if short-lived improvements in the penal system, and that activists in the free world must heed them in their efforts to bring about prison reform. (shrink)

Determining appropriate legal responses to the conduct of health care workers who endanger patients continues to provoke fierce debate. This is particularly true in the context of criminal law, which offers punishment as an obvious strategy. In the first of three papers which make up this issue's extended Health Care Law feature, Professor Alexander McCall Smith and Dr Alan Merry argue against the prosecution of health care workers except in circumstances where there is very dear evidence of a culpable frame (...) of mind. They do so against the backdrop of their description of proposed changes in New Zealand legislation on medical manslaughter. The catalyst for this change was a judge's refusal to countenance the prosecution of an anaesthetist for manslaughter for inadvertent error. In the authors' opinion the intervention by the New Zealand judge has given rise to a long overdue review of a harsh penal measure. However, in a commentary on McCall Smith and Merry's paper, Ron Paterson argues that all is not what it seems and that--in the light of New Zealand's 'no fault' system of compensation for medical accident--the present system should be maintained. (shrink)

Archaeological excavations carried out at Pentridge Prison discovered the ruins and foundations of three panopticon exercise yards. This paper details the scope and observations of the excavation program and discusses the influence of Jeremy Bentham’s panopticon model on penal reform and prison design in Australia in the middle of the 19th Century.

Resumo: Em décadas recentes, a investigação filosófica sobre a responsabilidade moral e o livre-arbítrio, que por muito tempo foi vista como um empreendimento principalmente teórico, passou a também incluir preocupações de tipo mais prático. Essa mudança é bem ilustrada pela proposta cética desenvolvida por autores como Derk Pereboom e Gregg Caruso. Seus trabalhos não apenas negam que sejamos agentes livres e moralmente responsáveis (em um sentido específico dos termos em questão), mas também defendem reformas na maneira como a responsabilização é (...) efetivada em nossas relações interpessoais e, especialmente, no sistema penal. Este artigo examina as implicações práticas do ceticismo de Pereboom e Caruso, principalmente no que diz respeito à sua implementabilidade. Argumento que o núcleo propriamente cético da proposta é inviável para seres humanos com a psicologia moral que temos, mas que, apesar disso, alguns elementos da proposta são compatíveis com uma proposta não-cética focada no aperfeiçoamento das práticas punitivas. Abstract: In recent decades, the philosophical investigation of moral responsibility and free will, which for a long time was seen as a mostly theoretical enterprise, became also the place of more practically oriented concerns. The skeptical view developed by Derk Pereboom and Gregg Caruso is a good illustration of the change. In their work, they not just deny that we are free and morally responsible agents (in a specific sense of the relevant terms) but also propose the reform of responsibility practices as they figure in our interpersonal relations and, especially, in the criminal justice system. This paper examines the practical implications of Pereboom and Caruso’s skepticism, particularly in what concerns its likelihood of being implemented. I argue that the strictly skeptical core of their proposal is not viable for human beings with a moral psychology like ours, but that some elements are nonetheless consistent with a non-skeptical view focused on the improvement of punitive practices. (shrink)

Archaeological excavations carried out at Pentridge Prison discovered the ruins and foundations of three panopticon exercise yards. This paper details the scope and observations of the excavation program and discusses the influence of Jeremy Bentham’s panopticon model on penal reform and prison design in Australia in the middle of the 19th Century.

This study focuses on the practice of punishment, as it is inflicted by the state. The author's first-hand experience with penal reform, combined with philosophical reflection, has led him to develop a theory of punishment that identifies the principles of sentencing and corrections on which modern correctional systems should be built. This new theory of punishment is built on the view that the central function of the law is to reduce the need to use force in the resolution (...) of disputes. Professor Cragg argues that the proper role of sentencing and sentence administration is to sustain public confidence in the capacity of the law to fulfil that function. Sentencing and corrections should therefore be guided by principles of restorative justice. He points out that, although punishment may be an inevitable concomitant of law enforcement in general and sentencing in particular, inflicting punishment is not a legitimate objective of criminal justice. The strength and appeal of this account is that it moves well beyond the boundaries of conventional discussions. It examines punishment within the framework of policing and adjudication, analyses the relationship between punishment and sentencing, and provides a basis for evaluating correctional practices and such developments as electronic monitoring. (shrink)

The first part of this chapter defends the claim that the over-incarceration of disadvantaged social groups is unjust. Many arguments for penal reform are based on the unequal distribution of punishment, most notably disproportionate punishment of the poor and people of color. However, some philosophers use a noncomparative conception of desert to argue that the justice of punishment is independent of its distribution. On this view, which has significant influence in 14th Amendment jurisprudence, unequal punishment is not unjust. (...) After detailing the “noncomparativist challenge,” this chapter argues that Levinasian conceptions of desert enable a theory of penal justice according to which comparative considerations are essential. In so doing, it shows that the noncomparativist challenge can be met. The chapter concludes by considering whether Levinasian conceptions of desert and responsibility show members of socially advantaged groups to be more blameworthy for their wrongdoing than members of disadvantaged groups. (shrink)

This book provides the first complete, literal English translation of Alexis de Tocqueville’s and Gustave de Beaumont’s first edition of On the Penitentiary System in the United States and Its Application to France. The work contains a critical comparison of two competing American penitentiary disciplines known as the Auburn and Philadelphia systems, an evaluation of whether American penitentiaries can successfully work in France, a detailed description of Houses of Refuge as the first juvenile detention centers, and an argument against (...) class='Hi'>penal colonization. The work provides valuable insights into understanding Tocqueville as a statesman, as well as a comparative look at civic engagement in early American and French penal reform movements. The Translator’s Introduction provides historical context for understanding Tocqueville’s work in French penal reform and the major themes of the report. The book thus fills a void in Tocquevillian studies and extrapolates the roots of American and French criminal justice systems in the nineteenth century. (shrink)

In Discipline and Punish, Michel Foucault offers a history of the rise of discipline in its application to the body. Foucault suggests, although he does not develop this suggestion, that the politics of discipline is war carried on by other means. The lecture series “Society Must Be Defended” can be seen as a development of this suggestion. In these lectures, Foucault offers a way of thinking about the society and its politics in terms of war, as well as a way (...) of thinking about war. If this concept of war is integrated into the thought ofDiscipline and Punish, the work that that text does can be extended in several ways. First, we are offered an analysis of the social body that fractures the holism in the name of which penal reform is offered. Second, the disciplinary body can be seen not merely as the confluence of a series of power effects, but as the site of a contestation of power. Finally, the possibility of resistance, which has often been found lacking in Foucault’s genealogical works, appears as a live possibility. (shrink)