Soon it may be possible to promote the rehabilitation of criminal offenders through _neurointerventions_ (interventions which exert direct physical, chemical or biological effects on the brain). Some jurisdictions already utilise neurointerventions to diminish the risk of sexual or drug-related reoffending. And investigation is underway into several other neurointerventions that might also have rehabilitative applications within criminal justice—for example, pharmacotherapy to reduce aggression or impulsivity. Ethical debate on the use of neurointerventions to facilitate rehabilitation—henceforth ‘neurorehabilitation’—has proceeded on two (...) assumptions: that we have instrumental reasons for employing neurorehabilitation (e.g. because it helps protect the public from crime); and that its permissibility depends upon whether its use unjustifiably infringes offenders’ rights. This paper defends a different, hitherto neglected thought. I argue we have rights-based reasons to offer neurorehabilitation to offenders—in other words, that offenders have a _moral right_ to neurorehabilitation. I identify three considerations which support a moral right to conventional rehabilitative interventions—(1) as a countermeasure to the debilitating side-effects of punishment; (2) as a derivative right of the right to hope for renewed liberty; and (3) as compensation for structural injustice. I argue these considerations extend to support a moral right to neurorehabilitation in the following instance: when neurorehabilitation would be part of the _most effective_ package for facilitating rehabilitation, and can be carried out at reasonable cost. I then defend my argument against potential objections, including the objection that neurorehabilitation is a bad option for offenders to have and the charge of over-medicalisation. (shrink)

Kant gives what appear to be consequentialist and retributivist reasons for his claim that the state must punish criminal offenders. I argue that Kant’s justification is retributivist and not consequentialist. In particular, I argue that Kant’s justification is found in his argument that we must attribute to an offender’s reason the judgment that she must be punished. I argue that other retributivist interpretations as well as interpretations that prioritize consequentialist reasons have little textual support. I also reconstruct an (...) argument that Kant implies for his claim that ius talionis is the proper criterion for determining the quality and quantity of punishment. (shrink)

Whether it is morally acceptable to offer rehabilitation by CNS-intervention to criminals as a condition for early release constitutes an important neuroethical question. Bomann-Larsen has recently suggested that such interventions are unacceptable if the offered treatment is not narrowly targeted at the behaviour for which the criminal is convicted. In this article it is argued that Bomann-Larsen’s analysis of the morality of offers does not provide a solid base for this conclusion and that, even if the analysis is assumed (...) to be correct, it still does not follow that voluntary rehabilitation schemes targeting behaviour beyond the act for which a criminal is convicted are inappropriate. (shrink)

In this study, we investigated whether differences in the experience of regret may be a potential explanation for damaging behaviours associated with psychopathy and criminal offending. Participants were incarcerated offenders (n = 60) and non-incarcerated controls (n = 20). Psychopathic traits were characterised with the Psychopathic Checklist: Screening Version. Regret was assessed by responses to outcomes on a simulated gambling task. Incarcerated offenders experienced a reduced sense of regret as compared to non-incarcerated controls. We obtained some evidence (...) that specific psychopathic factors and facets could differentially relate to the experience and use of emotions. Our data provide initial evidence of important associations between negative emotions and decision behaviour in the context of criminal offending. (shrink)

“Committing a crime might render one morally liable to certain forms of medical intervention”, claims Thomas Douglas, who stated in this context that “compulsory uses of medical correctives could in principle be justified.” This article engages critically with his and other arguments on the use of coercive neurocorrectives for criminal offenders. First, the rehabilitation assumption that includes—for coercive neurocorrectives to work as an alternative to incarceration—that rehabilitation is the “only goal” of criminal punishment is criticized. Additionally this (...) article engages with the theoretical difficulty of solely rehabilitative approaches, and discusses why it is unfortunate to design neurocorrectives so as to be particularly harmful in order to imagine administering them as being a punishment. Second, until we know more about specific neurocorrectives, we are well advised not to undermine the most important objection against coercive neurocorrectives, namely offenders’ human rights. This article argues that the use of coercive neurocorrectives would particularly violate Article 3 of the European Convention on Human Rights which guarantees as an absolute right that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”, and finally holds that a still weak human right to mental integrity and self-determination should fundamentally come first. (shrink)

Every day, millions of people use mobile phones, play video games and surf the Internet. It is thus important to determine how technologies like these change what people think and how they behave. This is a central issue in the study of persuasive technologies. ‘Persuasive technologies’—henceforth ‘PTs’—are digital technologies, such as mobile apps, video games and virtual reality systems, that are deployed for the explicit purpose of changing attitudes and/or behaviours, without using coercion, deception or extreme forms of psychological manipulation (...) (such as hypnosis or indoctrination), and without exerting a direct (not psychologically mediated) physical effect on the brain. Typically PTs employ strategies such as prompting, information provision and encouragement... (shrink)

This paper investigates, from a philosophical perspective, whether high functioning autists are legally responsible for the crimes they may commit. We do this from the perspective of the Croatian legal system. According to Croatian Criminal Law, but also criminal laws adopted in many other countries, the legal responsibility of the person is undermined due to insanity when two conditions are satisfied. The first may be called the incapacity requirement. It states that a person, when committing the crime, suffers (...) cognitive or volitional incapacities or limited capacities that are relevant for exculpation. The second, we may call the mental disorder requirement, which states that these exculpatory incapacities are due to the presence of a mental disorder. In this paper we focus on the incapacity requirement. The review of the studies on executive functions deficits associated with high-functioning autism suggests that many autists should not be held categorically responsible for the crimes they may commit. Nonetheless, we argue that these impairments in executive functions generally do not provide an unqualified excuse. (shrink)

I defend a form of preventive detention through the creation of an offence of ‘being a persistent violent dangerous offender’. This differs from alternative proposals and actual habitual offender laws that impose extra periods of incarceration on offenders after they have completed the sentence for their most recent crime or as a result of a certain number of prior convictions. I, instead, would make ‘being a persistent violent dangerous offender’ an offence itself. Persons to be preventively detained would be (...) tried and convicted of this offence. My approach would then have one significant advantage: provided the elements of being a PVDO could be rendered sufficiently determinate, punishing persons under such an offence would comport with central rule of law values, most importantly legality and fair notice, as well as principles of proportionality in sentencing. (shrink)

Most punishment theories acknowledge neither the full extent of the harms which punishment risks, nor the caring practices which punishment entails. Consequently, I shall argue, punishment in most of its current conceptualizations is inconsistent with treating offenders as equals qua persons. The nature of criminal punishment, and of our interactions with offenders in punishment decision-making and delivery, risks causing harm to offenders. Harm is normalized when central to definitions of punishment, desensitizing us to unintended harms and (...) obscuring caring practices. Offenders may be partially silenced and excluded by mainstream criminal justice practices which limit interaction between offenders and practitioners. When we ignore significant harms, or silence and exclude, we treat others as passive non-subjects. This partially objectifies offenders, and is inconsistent with treatment as equals. Penal theories employing harm-centred and harm-normalizing definitions of punishment can provide few resources to help practitioners either avoid, or recognize and respond to, harms. Care ethics, by contrast, motivates the avoidance of harm, ongoing inclusive engagement, and respectful interaction with others. I argue that defining punishment without presupposing harm facilitates the identification of morally problematic harms, and recognition of caring practices. I offer a principled argument, and political and pragmatic supplementary arguments, for responding to offenders without intentional harm and with care. Principles drawn from care ethics can help to strengthen mainstream criminal practices by structuring decision-making and action. Bottom-up alternative criminal justice practices share some values with these proposed guiding principles, allowing a partial test of the principles. I consider examples of restorative justice practices, therapeutic jurisprudence, community justice and other problem-solving court practices, in addition to considering how well mainstream punishment practices measure up to these principles. My analysis illuminates the strengths and weaknesses of the principles, and how they might contribute to securing treatment as equals for offenders in mainstream practices. (shrink)

It has been proposed that reoffending could be reduced by manipulating the neural underpinnings of offenders’ criminogenic mental features with what have been called neurocorrectives. The legitimacy of such use of neurotechnology – criminal neurorehabilitation, as the use is called – is usually seen to presuppose valid consent by the offenders subjected to it. According to a central criticism of nonconsensual criminal neurorehabilitation, nonconsensual use of neurocorrectives would express a degrading attitude towards offenders. In this (...) article, I consider this criticism of nonconsensual criminal neurorehabilitation. By using cases of autonomous persons who lead a subservient existence as an example, I propose that nonconsensual criminal neurorehabilitation need not express a more degrading attitude towards offenders than consensual criminal neurorehabilitation. The argument of this article does not show that nonconsensual criminal neurorehabilitation is morally or legally acceptable. Yet, in view of the argument, criticizing nonconsensual criminal neurorehabilitation for expressing a degrading attitude towards offenders is not compatible with simultaneously endorsing consensual criminal neurorehabilitation. (shrink)

The evidence suggests that employers discriminate against ex-offenders in the labour market. The problem is potentially serious as it involves a substantial proportion of the population, especially the male population. Since research has shown that most people with prior convictions stop offending by their late 20s or early 30s, the validity of selection based on criminal record remains questionable. This paper examines the need for legal protection of ex-offenders by limiting employers' access to, and use of, information (...) on criminal background. The rights and interests of the various parties involved, employers, ex-offenders, and the general public, are discussed. Approaches to the legal protection of ex-offenders in Australia are reviewed and legislative changes proposed. (shrink)

The paper argues for attaching a significant role to the dignity of offenders as a limitation on the scope of substantive criminal law. Three different aspects of human dignity are discussed. Human dignity is closely connected with the principle of culpability. Respecting the dignity of offenders requires that we assign criminal liability according to the actual attitudes of the offenders towards the interests protected by the offence. The doctrine of natural and probable consequence of complicity, (...) which allows us to assign liability for mens rea offenses to a negligent offender, violates the dignity of the offender; it treats the incautious offender as if she had willfully expressed disrespect towards the protected interest. The human dignity core of privacy is invaded by criminalizing the private possession of child pornography. By extending the prohibition of the creation, sale and distribution of child pornography to the private possession of pornography, the State attempts to control the way the individual expresses an essential part of the self—his sexual fantasies—within himself. Dignity demands that our actions convey an attitude of respect towards human beings. The expressive meaning of disrespect is culture-dependent. The historical association with totalitarian regimes explains our reluctance to impose a legal duty to report past crime: the individual who is legally required to turn a suspect into the police is viewed as an “informant.”. (shrink)

Should offenders with psychopathy or those exhibiting extreme forms of antisocial behav- iour be considered criminally responsible? The current debate seems to have reached a stalemate. Several scholars have argued that neuropsychologi- cal data on individuals with psychopathy might be relevant for determining their criminal responsibil- ity. However, relying on such data has not produced a consensus among legal scholars and philosophers on whether individuals with psychopathy should be excused from responsibility. We offer a diagnosis about why this (...) debate has reached a standoff. We argue that part of the problem is that psychopathy, being a syndrome-based category, is too heterogeneous and thus offers low prospects for being integrated with neuropsychological data that might support significant conclusions about the criminal responsibility of individuals with psychopathy. Moreover, the construct of psychopathy was not originally devised to discriminate criminally accountable from unac- countable antisocial individuals. To overcome these difficulties and advance the debate, we extend a currently less discussed theoretical framework for bridging biopsychology and the law that focuses on neuropsychological constructs, domains, and processes that directly measure capacities of offenders that are relevant for criminal responsibility, without necessarily relying on mediating syndrome-based constructs. The novelty of our contribution is that the biopsy- chological bases of exculpation can be further devel- oped and used for determining more fine-grained cat- egorisations of antisocial personality types. We show how this framework provides guidelines for inter- disciplinary research that can significantly advance our understanding of the preconditions for criminal responsibility and help the legal practice of ascribing or withholding it. (shrink)

Criminal offenders are sometimes required, by the institutions of criminal justice, to undergo medical interventions intended to promote rehabilitation. Ethical debate regarding this practice has largely proceeded on the assumption that medical interventions may only permissibly be administered to criminal offenders with their consent. In this article I challenge this assumption by suggesting that committing a crime might render one morally liable to certain forms of medical intervention. I then consider whether it is possible to (...) respond persuasively to this challenge by invoking the right to bodily integrity. I argue that it is not. (shrink)

Is it morally acceptable to instigate criminal offenders to participate in rehabilitative treatment by offering treatment in return for early release from prison? Some theorists have supported such treatment schemes by pointing to the beneficial consequences that follow from the treatment. Others have suggested that the schemes are unacceptably coercive, which implies that consent becomes an illusion. This paper argues that the discussion—with clear parallels to debates of other healthcare treatment offers in medical ethics—has adopted a too narrow (...) focus. By failing to consider the question as a penal theoretical problem, the arguments—both by proponents and critics of coercive treatment—become premature. (shrink)

Many criminal offenders come from disadvantaged backgrounds, which punishment entrenches. Criminal culpability explains some disadvantageous treatment in state-offender interactions; yet offenders remain people, and ‘some mother’s child’, in Eva Kittay’s terms. Offending behaviour neither erases needs, nor fully excuses our responsibility for offenders’ needs. Caring is demanded in principle, recognising the offender’s personhood. Supporting offenders may amplify welfare resources: equipping offenders to provide self-care; to meet caring responsibilities; and enabling offenders’ contribution to (...) shared social life, by providing support and furthering the choices of others seeking to engage with them. The desistance paradigm (viewing desistance from offending as a process, following from an offender’s active choice in the context of stabilising social structures and personal circumstances), implies that a supportive environment may facilitate reduced recidivism. While decisions about criminal culpability need justice, we may use state resources most effectively by also including care ethics in our thinking about punishment. (shrink)

The prevention of sexual violence is a major goal of sexual health. In cases of accused sexual offenders, the assessment of diminished criminal responsibility of the accused is one of the most important procedures undertaken by experts in the German legal system. This assessment follows a two-stage method assessing first the severity of a paraphilic disorder and then second criteria for or against diminished capacity. The present study examines the predictive validity of two different sets of criteria for (...) the assessment of criminal responsibility in the context of paraphilic disorders combined with sexual offending. Two exemplary case vignettes of two suspected sexual offenders were developed to assess the criteria. For each participant, one of the two exemplary case vignettes was randomly presented. The presentation of the two different sets of criteria was also randomized, so that each participant was assigned only one of the two criteria sets to rate one of the presented cases. N = 349 participants from different professional backgrounds completed their assessments and were included in the data analysis. The data were evaluated using logistic regression. Results show that the more recently published criteria set predicts both the severity of the disorder as well as the diminished capacity twice as good as the older criteria set of Boetticher et al. currently used regularly for forensic court reports. In preliminary conclusion, the new criteria of Briken and Müller form an empirically based assessment of criminal responsibility. However, the proposed criteria cannot replace an extensive exploration of the accused person and a careful file analysis. Validity and reliability of the results are also limited due to the methodical choice of a vignette study. (shrink)

This paper considers Canada’s young offenders in the context from which they enter the youth criminal courtroom. To determine how youth criminal justice courts violate the Canadian Youth Criminal Justice Act, this analysis relates said context to several phenomena, including legal linguistics, oral language competency, literacy, communicative competency, non-verbal communication, the physical structure of youth courtrooms, and legal translation. As a result of the standards of procedural communication upheld by the Canadian criminal justice system, young (...) people’s rights, including the right to be respected regardless of cultural, ethnic, or linguistic differences, the right to be heard and to participate in proceedings, the right to be sentenced meaningfully, the right to privacy, and the right to be tried in a timely manner are abused in the youth criminal courtroom. Although insufficient structures of procedural communication cause these issues and are beyond the control of counsel, defense counsel are often blamed for their effects. Legal professionals must make important adjustments such as altering the formal speech required in youth criminal courtrooms, employing legal professionals with the role of translating legal jargon to young people in the courtroom, and closing youth courtrooms off from the public to reduce the YCJA violations occurring in youth criminal justice court. These adjustments are ultimately the responsibility of the Canadian criminal justice system. (shrink)

What is a crime? A common answer is that crimes are harms. One particular argument is that morality forms the connection between crimes and harms: crimes are not any kind of harm, but specifically a kind of immorality. This position is consistent with natural law jurisprudence which claims that law and morality are inseparably linked. It is also consistent with standard defences of retribution whereby punishment is justified where deserved and to the degree deserved. Retributivist desert is present for individuals (...) that possess some degree of moral responsibility for causing or attempting to cause evil. For example, the murderer deserves severe punishment because he is morally responsible for another person’s death and this act is sufficiently evil to warrant severe punishment. -/- The idea that crimes are harms to morals — and so their immorality informs their criminality and the corresponding severity of punishment — has also found favour with so-called ‘expressivist’ theories of punishment defended by Joel Feinberg, Antony Duff and others. These theories argue that punishment has an expressivist function of communication public disapproval to criminal offenders for their moral wrongdoings where punishment is proportionate to immorality. -/- The justification of crimes as harms to morals is part of a venerable tradition that has come to be increasingly seen as discredited. Most academics working in law (and even more practising lawyers) reject natural law jurisprudence and support some version of the separability thesis of legal positivism where law and morality are held to be separable, but not intrinsically and necessarily linked. Yet, curiously, retributivist theories, including expressivism, have been on the ascendency with a growing number of legal philosophers defending the idea of crimes as harms to morals and, therefore, moving in a contrary direction to most others working in law and academic law. -/- I believe this general position is deeply problematic and should be rejected. This chapter focuses specifically on expressivist theories as the increasingly more popular variant of retributivism in academic circles today. The next section provides an overview of expressivism. The following sections argue that it is not compelling both as a view about the criminal law, but also as a theory about punishment. I close the chapter with ideas about criminal harms might be better understood. I argue that crimes might be a kind of harm, but not the kinds of harm endorsed by retributivists and, more specifically, expressivists. (shrink)

This paper concerns what if any obligations a “society of equals” has to criminal offenders after legal punishment ends. In the United States, when people leave prisons, they are confronted with a wide range of federal, state, and local laws that burden their ability to secure welfare benefits, public housing, employment opportunities, and student loans. Since the 1980s, these legal consequences of criminal convictions have steadily increased in their number, severity, and scope. The central question I want (...) to ask is whether the infliction of these burdensome legal consequences for those who have already been punished by the state is consistent with the ideal of equality. I argue that these collateral legal consequences violate relational egalitarian principles of justice and are thus objectionable. I conclude by examining possible objections to my argument. (shrink)

This essay asks whether restorative justice practices in criminal legal systems are consistent with the aims of a liberal state.

The aim of the paper is to investigate how retributivists should respond to the apparent tension between moral desert and proportionality in punishment. I argue that rather than attempting to show that the term ‘proportionate punishment’ refers to whatever penal treatment the offender morally deserves, retributivists should maintain two things: first, that a punishment is proportionate when it is commensurate to the seriousness of the crime; second, that offenders morally deserve proportionate punishments. This view requires adopting a local theory (...) of desert as opposed to a holistic one. In the second part of the paper, I argue that there are indeed good reasons to adopt a local theory of desert. Once retributivism is seen through the lens of local desert, there is no obvious mistake in saying that offenders morally deserve punishments that are proportionate to the seriousness of their crimes. (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)

With the growing prominence of restorative justice interventions, criminal justice is being reconceptualized in terms of a new paradigm of justice. The central concept of this new paradigm is victim-offender empowerment. The paper articulates the meaning and application of this idea in restorative justice philosophy and practice.

The current debate on closed-loop brain devices (CBDs) focuses on their use in a medical context; possible criminal justice applications have not received scholarly attention. Unlike in medicine, in criminal justice, CBDs might be offered on behalf of the State and for the purpose of protecting security, rather than realising healthcare aims. It would be possible to deploy CBDs in the rehabilitation of convicted offenders, similarly to the much-debated possibility of employing other brain interventions in this context. (...) Although such use of CBDs could in principle be consensual, there are significant differences between the choice faced by a criminal offender offered a CBD in the context of criminal justice, and that faced by a patient offered a CBD in an ordinary healthcare context. Employment of CBDs in criminal justice thus raises ethical and legal intricacies not raised by healthcare applications. This paper examines some of these issues under three heads: autonomy, human rights, and accountability. (shrink)

Statutes criminalizing behavior that risks transmission of HIV/AIDS exemplify use of the criminal law against individuals who are victims of infectious disease. These statutes, despite their frequency, are misguided in terms of the goals of the criminal law and the public health aim of reducing overall burdens of disease, for at least three important reasons. First, they identify individual offenders for punishment, a paradigm that is misplaced in the most typical contexts of transmission of infectious disease and (...) even for HIV/AIDS, despite claims of AIDS exceptionalism. Second, although there are examples of individuals who transmit infectious disease in a manner that fits the criminal law paradigm of identification of individual offenders for deterrence or retribution, these examples are limited and can be accommodated by existing criminal laws not devoted specifically to infectious disease. Third, and most importantly, the current criminal laws regarding HIV/AIDS, like many other criminal laws applied to infectious disease transmission, have been misguided in focusing on punishment of the diseased individual as a wrongful transmitter. Instead of individual offenders, activities that enhance the scale of disease transmission—behaviors that might be characterized as ‘transmission facilitation’—are a more appropriate target for the criminal law. Examples are trafficking in human beings (including sex trafficking, organ trafficking, and labor trafficking), suppression of information about the emergence of infection in circumstances in which there is a legally established obligation to disclose, and intentional or reckless activities to discourage disease treatment or prevention. Difficulties remain with justifications for criminalizing even these behaviors, however, most importantly the need for trust in reducing overall burdens of disease, problems in identifying individual responsible offenders, and potential misalignment between static criminal law and the changing nature of infectious disease. (shrink)

There is a great deal of research on the structure of narrative and its mode, and on the narrative positioning and counter positioning of the actor in legal and social contexts. In offender narratives, personal experiences are embedded for observation and analysis of particular realities that contextualize a disposition of the perpetrator being ‘an undergoer’ rather than an ‘effector’ of actions. This is evaluated in the shift from a narrated action to a speaker utterance in prospection and also in anticipation (...) of the criminal act. Using ‘grammatical logic’, it is also possible to demonstrate how the crucial event is not a cause, but an effect of a personal theme that encapsulates pattern of circumstances when the narrative outcome in criminal narrative becomes the product of its discursive practices. This is the ‘story of intentionality’ in crime narratives, characteristically embedded within the 1st the story of crime, the 2nd is the story of investigation [14, 20]. Using techniques from functional grammar and critical stylistics for discourse analysis, I intend to show an effective approach for the search of offender theme that underlies an act of crime. These disciplines provide the analyst with the linguistic material to analyse intersentential cohesion in a chain of semantically linked sentences that explore the ways in which things are ‘made to look’ in the structure and functions of the English language. As a case study, I am using an offender narrative from Tony Parker’s book Life After Life: Interviews with Twelve Murderers showing an effective approach for the search of personal themes underlying the act of crime. Offender theme analyses are also valuable for evaluating the changing nature or development of offender characteristics pre or post crime. (shrink)

In recent years, discussion around memory modification interventions has gained attention. However, discussion around the use of memory interventions in the criminal justice system has been mostly absent. In this paper we start by highlighting the importance memory has for human well-being and personal identity, as well as its role within the criminal forensic setting; in particular, for claiming and accepting legal responsibility, for moral learning, and for retribution. We provide examples of memory interventions that are currently available (...) for medical purposes, but that in the future could be used in the forensic setting to modify criminal offenders’ memories. In this section we contrast the cases of dampening and enhancing memories of criminal offenders. We then present from a pragmatic approach some pressing ethical issues associated with these types of memory interventions. The paper ends up highlighting how these pragmatic considerations can help establish ethically justified criteria regarding the possibility of interventions aimed at modifying criminal offenders’ memories. (shrink)

As the community corrections system has moved away from a focus on rehabilitation, it has been suggested that criminal offenders are no longer understood psychologically, but rather as rational actors for whom criminality is a choice. Rehabilitative efforts thus aim to guide these choices. Utilizing mixed methodology that draws on observational, interview, and case note data collected within the probation/parole system of a western U.S. state, I suggest that both officers’ conceptualizations of the criminal self and the (...) rehabilitative strategies they use are gendered. I find that officers view the male criminal self as flawed or underdeveloped and the female as permeable and amorphous, that is, lacking firm boundaries. In response to these constructions, officers aim to rehabilitate men largely by encouraging economic roles and responsibilities, while for women, rehabilitation aims to solidify boundaries: discouraging relationship formation and containing emotions. The differences identified point to ways in which gendered concepts of the criminal self contribute to gender disparities in contemporary supervision. (shrink)

This paper questions the notion that states may be justified in denying certain prisoners the right to vote as a means of distancing themselves from particularly grave wrongs. Christopher Bennett has recently defended prisoner disenfranchisement as a fair and deserved retributive punishment for crimes, and Mary Sigler and Andrew Altman have argued in favor of prisoner disenfranchisement as a civil restriction. All three proponents agree that disenfranchisement should be reserved for those guilty of the most serious offenses. I assert that (...) it is inappropriate to treat citizens in this manner and will advocate for the right to vote, whether disenfranchisement is perceived as a form of punishment or as a civil measure. I will present two arguments against disenfranchisement as it impacts both citizens and political community at large. First, it excludes citizens from the democratic arena and restricts the opportunity to reintegrate offenders into the political community. While a criminal sentence is intended to be burdensome, the burden associated with disenfranchisement extends beyond the appropriate penal scope. (shrink)

Convicted offenders face a host of so-called “collateral” consequences: formal measures such as legal restrictions on voting, employment, housing, or public assistance, as well as informal consequences such as stigma, family tensions, and financial insecurity. These consequences extend well beyond an offender’s criminal sentence itself and are frequently more burdensome than the sentence. This essay considers two respects in which collateral consequences may be relevant to the question of what the state should, or may, criminalize. First, they may (...) be relevant according to specific accounts of criminalization, including plausible versions of the harm principle and legal moralism. Second, they may be relevant to the legitimacy of state criminalization more generally. Thus for legal theorists concerned with the issue of legitimate criminalization, normative questions raised by collateral consequences are of central importance. (shrink)

The paper critically discusses the moral view that neurotechnological behavioural treatment for criminal offenders should only be offered if it is in their best interests. First, I show that it is difficult to apply and assess the notion of the offender's best interests unless one has a clear idea of what ‘best interests’ means. Second, I argue that if one accepts that harmful punishment of offenders has a place in the criminal justice system, it seems inconsistent (...) not to accept the practice of offering offenders treatment even when the state will harm them in applying the treatment. Finally, leading penal theories like consequentialists and retributivists would not accept that the offender's best interests, at least in certain situations, impose a necessary condition for the treatment of an offender. (shrink)

I provide a brief history of the common law governing the criminal liability of intoxicated offenders, and the codification and application of the intoxication rules in Canada. I argue that the common law and its statutory application in Canada violate a number of principles of criminal justice. I then argue that the rules cannot be saved by attempts to subsume them under principles of prior fault. I end with a modest proposal for law reform.

Having a criminal justice system that imposes sanctions no doubt does deter criminal conduct. But available social science research suggests that manipulating criminal law rules within that system to achieve heightened deterrence effects generally will be ineffective. Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if (...) they can, a rational analysis commonly puts the perceived benefits of crime greater than its perceived costs, due to a variety of criminal justice realities such as low punishment rates. These conclusions are reinforced by studies of crime rates following rule changes. Many show no change in deterrent effect. Those that purport to show a deterrent effect commonly have persuasive non-deterrence explanations, such as a change in incapacitative effect. The few studies that segregate deterrent and incapacitative effects tend to reinforce the conclusion that rule formulation has a deterrent effect only in those unusual situations in which the preconditions to deterrence exist. Even there, the deterrent effects are quite minor and unpredictable, hence inadequate grounds to influence criminal law rule making. (shrink)

This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until recently, both concepts were (...) considered to be more or less interchangeable. But there is a growing movement, which I refer to as "responsibility skepticism," which maintains that moral responsibility is either physically or metaphysically impossible. If the responsibility skeptics are right (that moral responsibility is impossible), then what are the implications for criminal responsibility and just criminal punishment? Should we abandon these as well? Or can they survive without moral responsibility? I try to answer these questions. -/- The third part addresses social causation. The criminal justice system tends to be "dispositionalist"; it tends, that is, to assume that criminal responsibility resides entirely within the defendant. Dispositionalism, however, overlooks the fact that who we are and what we do are significantly determined by environmental influences. I then try to show that this "situationist" alternative to dispositionalism should not radically alter our approach to criminal punishment. -/- The final part briefly discusses the difficulty in evaluating criminal responsibility when the defendant is both an offender and a victim - especially when the defendant is an offender *because* of his victimization. (shrink)

Managing the violent behaviour of mentally disordered offenders is challenging in all jurisdictions. We describe the ethical framework and practical management of MDOs in England and Wales in the context of the move to equivalence of healthcare between hospital and prison. We consider the similarities and differences between prison and hospital management of the violent and challenging behaviours of MDOs. We argue that both types of institution can learn from each other and that equivalence of care should extend to (...) equivalence of criminal proceedings in court and prisons for MDOs. We argue that any adjudication process in prison for MDOs is enhanced by the relevant involvement of mental health professionals and the articulation of the ethical principles underpinning health and criminal justice practices. (shrink)

In response to the racial disparities that plague the American criminal justice system, the Movement for Black Lives calls for an end to policing and punishment “as we know it.” But refusing to punish violent offenses leaves unprotected those most vulnerable to crime, and outright abolition thus appears to undermine black rights and liberties. I call this the decarceration dilemma. After discussing Tommie Shelby and Christopher Lewis’s attempts to resolve the dilemma, I offer my own, which employs a procedural (...) rather than a substantive solution. I lean on the principle of expanded asymmetry (EA), which holds that it is better to underpunish than overpunish. After defending EA, I note that it obtains only under conditions of uncertainty. I then show that because virtually all trials of black offenders meet the uncertainty condition, sentencing authorities are obliged to treat black offenders leniently. I conclude by noting the advantages of my proceduralist approach. (shrink)

Provides an international perspective as to the potential of restorative justice to * Deliver better ways of dealing with offenders and victims * Reduce the use ...

This paper considers electronic monitoring (EM) a promising alternative to imprisonment as a criminal sanction for a series of criminal offenses. However, little has been said about EM from an ethical perspective. To evaluate EM from an ethical perspective, six initial ethical challenges are addressed and discussed. It is argued that since EM is developing as a technology and a punitive means, it is urgent to discuss its ethical implications and incorporate moral values into its design and development.

There is growing interest in the use of neurointerventions to reduce the risk that criminal offenders will reoffend. Commentators have raised several ethical concerns regarding this practice. One prominent concern is that, when imposed without the offender’s valid consent, neurointerventions might infringe offenders’ right to bodily integrity. While it is commonly held that we possess a moral right to bodily integrity, the extent to which this right would protect against such neurointerventions is as-yet unclear. In this paper, (...) we will assess whether, why, and how severely three forms of neurointervention might infringe the right to bodily integrity. We show that the severity of the infringement of the right to bodily integrity differs across different forms of neurointervention. Moreover, we argue that mental and behavioral effects of neurointerventions could in some cases be relevant to determining the severity of infringements of the right to bodily integrity. (shrink)

Repeat offenders receive longer sentences than first offenders in virtually every modern jurisdiction. Such prior-record enhancements are politically popular. Scholars are more divided, especially regarding severe enhancements. Retributivists have long disagreed about which enhancements, if any, are morally justifiable and on what basis. This article advances the debate, offering lessons for retributivists on all sides. I address an intuitive argument that justifies enhancements in terms of character. This argument has been caricatured and dismissed, with defenders of enhancements preferring (...) character-independent arguments. I reconstruct an argument for enhancements that assumes recidivism constitutes evidence of culpability-aggravating character traits. The argument seems at least coherent, inferentially valid, and intuitively plausible. I then raise what I see as the real threats to the argument, which are neither conceptual nor normative, but empirical. I identify some formal features that the character argument requires of culpability-aggravating traits. To support enhancements, such traits must also correlate properly with criminal records. One place to look for characterizations of such traits, and evidence of correlation, is criminology, in theories of criminogenesis and criminality. I conclude that character arguments for prior-record enhancements cannot be dismissed, although their thorough evaluation awaits answers to complex empirical questions. (shrink)

Psychopathy is typically characterized as a constellation of deviant personality traits and behavioral tendencies. The link between psychopathic personality traits and pervasive antisocial behavior raises a crucial question concerning the legal accountability of offenders with psychopathy. Some argue that the unique clinical profile and neurobiological peculiarities of individuals with psychopathy mitigate their responsibility, while others maintain that current scientific knowledge does not support the use of psychopathy as an exculpatory condition for criminal offending. Our overview mainly centeres on (...) whether offenders with psychopathy can be considered legally insane. In this regard, our overview suggests that there is still an ongoing debate whether psychopathy should be used as a legally relevant construct for determining criminal responsibility. Moreover, our discussion indicates that careful attention should be put on empirical and conceptual issues surrounding the role of (neuro)scientific data for determining whether individuals with psychopathy should be considered criminally blameworthy for their wrongdoings. (shrink)

It is often thought that an agent is blameworthy only for wrongdoing she had a fair opportunity to avoid. However, in this article, I defend the thesis that there is a form of culpability for wrongdoing—exemplified by criminal guilt—that it is possible to accrue even for wrongdoing one lacked a fair opportunity to avoid. If I am right that criminal guilt, properly conceived, is not something everyone necessarily has a fair opportunity to avoid, an offender’s lack of fair (...) opportunity to avoid her guilt would appear to be an important potential ground for mitigation at sentencing. Hence, the thesis of this article may point the way toward a novel explanation of a moral intuition that a coterie of moral, political, and legal theorists has for decades sought but struggled to vindicate: the intuition that offenders who have suffered from various social disadvantages should receive less punishment for their crimes, even when those crimes are not morally justified or excused. (shrink)

This paper considers the problem of how to evaluate an offender’s criminal record. This evaluation is part of the sentencing process carried out by a judge, and may be complicated in the case of offenders with a heavy record. We give a comprehensive overview of the approach to an offender’s past record in various (Western) countries, considering the two major approaches: desert-based and utilitarian. The paper describes the determination of the parameters involved in the evaluation, and the construction (...) of a decision support system to be used by a judge about to pass sentence in a criminal case. The system may be used as a stand-alone system, but can also be integrated as a component of a general sentencing support system, e.g. a statistical sentencing information system. The system is a knowledge-based system. The knowledge base (in rule-form) was created primarily by eliciting knowledge from experts (judges, lawyers, academics and probation officers), but also by applying statutory law, case law and legal authoritative texts. It is flexible in the sense, that a user can introduce his1 own preferences (expressed as numerical coefficients) and thereby apply different sentencing principles. The prototype is at present undergoing testing by some of the participating judges. (shrink)

The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" -- just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other purposes (...) -- as a justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining the interrelation of the "purposes," nearly any rule can be justified by some "purpose of punishment." Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule the person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offenderâs blameworthiness: the use of an individualized objective standard. The widely used mechanism avoids the problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and the individualized objective standard allows the decision maker to take these into account. At the same time, the mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, the mechanism only shifts the form of the problem. Codes that use the individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which the objective standard ought to be individualized and those with which it ought not. Without a governing principle, the issue again is left to the discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether the criminal justice system is, in fact, in the business of "doing justice." The "criminal justice" system imposes "punishment" and encourages moral condemnation of those found "guilty" of "crimes." But while the system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to the deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what the existence of such illusions says about modern criminal law scholarship. (shrink)