The intuition holding that an organized crime leader should be punished more severely than a subordinate who directly commits an offence is commonly reflected in legal literature. However, positing a direct relationship between the severity of punishment and the level of seniority within an organizational hierarchy represents a departure from a more general idea found in much of the substantive criminal law writings: that the severity of punishment increases the closer the proximity to the physical commission of (...) the offence. This paper presents an analysis of the said intuition and attempts to ascertain its roots. Rejecting both retribution and deterrence theory as valid explanations, it will be inferred that the imposition of harsher punishment on organized crime leaders is properly based on the multiplicity of offences for which they are responsible, and not the nature of their involvement in any specific offence. (shrink)

A deterrence theory of punishment holds that the institution of criminal punishment is morally justified because it serves to deter crime. Because the fear of external sanction is an important incentive in crime deterrence, the deterrence theory is often associated with the idea of severe, disproportionate punishment. An objection to this theory holds that hope of escape renders even the severest punishment inapt and irrelevant. -/- This article revisits the concept of deterrence and defend (...) a more plausible deterrence theory of punishment—the wide-scope deterrence theory. The wide-scope theory holds that we must make the best use of all the deterrence tools available, including both external and internal sanctions. Drawing on insights from the early Confucian tradition, the article develops a deep deterrence theory, which holds that the most important deterrence tool involves internal, not external, sanction. It describes how internal sanctions deter potential offenses and why relevant policies need not conflict with liberalism’s respect for neutrality. (shrink)

More than sixty years after the seminal Nuremberg trials, different forms of transitional justice mechanisms abound around the world. Above all, the International Criminal Court started recently the hearings in its very first case. Reading the document containing the charges against Thomas Lubanga Dyilo, a militia leader accused of horrendous war crimes committed in the Democratic Republic of Congo, the question of why to punish perpetrators of atrocity crimes seems almost ludicrous. However, concerns that international prosecutions inadvertently prolong or even (...) exacerbate conflicts do require a response. Most proponents of international criminal tribunals argue that prosecutions have a deterrent effect. This article reviews the deterrence argument, highlights its inherent complexities, and proposes a refined approach to meet both the realities of atrocity crimes and international prosecutions. (shrink)

"This book argues for a mixed view of punishment that balances consequentialism and retributivism. He has published extensively on philosophy and applied ethics. A central question in the philosophy of law is why the state's punishment of its own citizens is justified. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. According to consequentialism, punishment is justified when it maximizes positive outcomes. According to retributivism, criminals should be punished because they deserve it. This (...) book defends a mixed view that recognizes the strength of both of these intuitions. By this account, the legislature should develop institutional policies and statutory penalties that maintain the social order, that is, consequentialism. It establishes punishment policies to deter criminal activity. By contrast, the criminal judiciary should give individual defendants what they deserve, that is, retributivism and thus expressing the community's appropriate sense of resentment at being wronged. The book justifies the two-tiered model by showing how it accords with our moral intuitions, our assumptions about how what we know affects our moral obligations, and a commonly held theory of freedom. This approach is developed by engaging classic and contemporary work in the philosophy of law, and shows its advantages over competing approaches from contemporary retributivists and other mixed theorists. The work also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. It draws on cutting-edge criminological research to show how punishment theory can help us to address some of our most pressing social issues, including the death penalty, drug laws, and mass incarceration. The book will also be of interest to legal philosophers, social scientists, especially criminologists, sociologists, economists, and political scientists"--. (shrink)

Deterrence is a theory which claims that punishment is justified through preventing future crimes, and is one of the oldest and most powerful theories about punishment. This volume brings together the leading work on deterrence from the dominant international figures in the field. Deterrence is examined from various critical perspectives, including its diversity, relation with desert, the relation of deterrence with incapacitation and prevention, the role deterrence has played in debates over the death penalty, and deterrence and corporate (...) crime. (shrink)

Kant's theory of punishment is commonly regarded as purely retributive in nature, and indeed much of his discourse seems to support that interpretation. Still, it leaves one with certain misgivings regarding the internal consistency of his position. Perhaps the problem lies not in Kant's inconsistency nor in the senility sometimes claimed to be apparent in the Metaphysic of Morals, but rather in a superimposed, modern yet monistic view of punishment. Historical considerations tend to show that Kant was discussing (...) not one, but rather two facets of punishment, each independent but nevertheless mutually restrictive. Punishment as a threat was intended to deter crime. It was a tool in the hands of civil society to counteract human drives toward violating another's rights. In its execution, however, the state was limited in its reaction by a retributive theory of justice demanding respect for the individual as an end and not as a means to some further social goal. This interpretation of Kant's theory of punishment maintains consistency from the earliest through the latest of his writings on moral, legal, and political philosophy. It provides a good reason for rejecting current economic analyses of crime and punishment. Most important of all, it credits Kant's theory in its clear recognition of the ideals intrinsic to libertarian government. (shrink)

In Wrongs and Crimes, Victor Tadros argues that wrongdoers acquire special duties to those they’ve wronged, and from there he generates wrongdoers’ duties to contribute to general deterrence by being punished. In support, he contends that my manipulation argument against compatibilism fails to show that causal determination is incompatible with the proposed duties wrongdoers owe to those they’ve wronged. I respond that I did not intend my manipulation argument to rule out a sense of moral responsibility that features such duties, (...) and that I don’t believe it does. In fact, I’m willing to accept a restricted version of Tadros’s proposal, and I explain how this addition modifies the self-defense-based position on deterrence that I’ve defended in the past. (shrink)

The ‘dualist project’ in the philosophy of punishment is to show how retributivist and reductivist (utilitarian) considerations can be combined to provide an adequate justification of punishment. Three types of dualist theories can be distinguished—‘split‐level’, ‘integrated’ and ‘mere conjunction’. Split‐level theories (e.g. Hart, Rawls) must be rejected, as they relegate retributivist considerations to a lesser role. An attempted integrated theory is put forward, appealing to the reductivist means of deterrence. However, it cannot explain how the two types of (...) considerations, retributivist and reductivist, are to be genuinely integrated as opposed to merely conjoined. An attempt to find integration at the deeper level of political philosophy is then examined, in the form of Lacey's communitarian theory of punishment. In the end, mere conjunction dualism must be accepted by default. This conclusion points to a deep‐lying schizophrenia in our substantive criminal law. Although developing this theme is beyond its scope, the paper ends by saying a little on how a mere conjunction dualist theory of punishment leads on to a similar theory of criminalization. (shrink)

The problem of punishment -- Punishment as crime prevention -- Can retributive punishment be justified? -- The mixed theory of punishment -- Retribution and revenge -- What is the purpose of retribution? -- Making sense of honor -- Is punishment justified?

The punishment of criminals is a topic of long-standing philosophical interest since the ancient Greeks. This interest has focused on several considerations, including the justification of punishment, who should be permitted to punish, and how we might best set punishments for crimes. This entry focuses on the most important contributions in this field. The focus will be on specific theoretical approaches to punishment including both traditional theories of punishment (retributivism, deterrence, rehabilitation) and more contemporary alternatives (expressivism, (...) restorative justice, hybrid theories, unified theories) with an additional section on capital punishment, perhaps the particular form of punishment that has received the most sustained philosophical attention. These theories of punishment address two important questions: first, who should be permitted to punish and, secondly, who should be permitted to be punished. These questions then concern the justification of punishment and its distribution. While the majority today often identifies their theories as retributivist, there is a great diversity of theories defended. This entry will highlight the leading work for each view. (shrink)

Over the last forty-five years, there have been three monumental stories on the national American crime scene: a run up in crime in the 1960s, a move towards a more punitive American justice system starting in the 1970s, and a strong decline in US crime rates beginning in the 1990s. At the center of understanding these three stories lies Gary Becker's pioneering work on the economics of crime . Becker offered a price theoretical model in which (...) criminals are viewed as rational actors seeking to maximize their benefits in choosing certain criminal actions while minimizing their costs. Becker's model has not only shaped academic debate on the topic of criminal behavior since the 70s, but it has also had a powerful impact on governmental policies regarding crime and justice. Most significantly, Becker's work_—with some of its nuance overlooked_—ended up providing intellectual backing to the increasingly punitive and harsh nature of the American justice system, as reflected in the massive increases in incarceration levels and the revival of the use of the death penalty.While Becker correctly predicted that massive increases in incarceration would have a dampening effect on crime, the supporters of this policy have not been attentive to the need to weigh costs as well as benefits in assessing the major prison build-up. Evidence that equal crime reductions could be achieved through targeted social spending merits consideration, since Becker noted that improving the legal opportunities available to potential criminals could be as potent a deterrent to crime as increasing the cost of criminal choices. Furthermore, I review current research in the death penalty debate and argue that—contrary to the positions defended by Becker and many ardent disciples of price-theory— the empirical evidence does not currently support the conclusion that the death penalty as administered in the United States has served as a deterrent to crime. (shrink)

This new second edition of Punishment includes a revised and expanded defence of the groundbreaking unified theory of punishment that brings together elements of retribution, deterrence and rehabilitation into a new coherent framework. Thom Brooks expands the chapter length case studies from capital punishment, juvenile offending, domestic violence and sex crimes to include new chapters on social media offences and corporate liability addressing some of today's most pressing issues in criminal justice.

Punishment is a topic of increasing importance for citizens and policy makers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many others are addressed in this highly engaging guide. Punishment is a critical introduction to the philosophy of punishment offering a new and refreshing approach that will benefit readers of all backgrounds and interests. This is the first critical guide to examine all leading (...) contemporary theories of punishment, including the communicative theory of punishment, restorative justice, and the unified theory of punishment. There are also several case studies examined in detail including capital punishment, juvenile offending, and domestic abuse. -/- Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and groundbreaking. -/- Introduction; Retributivism; Deterrence; Rehabilitation; Restorative Justice; Rawls, Hart, and "mixed" theories; Expressivism; The Unified Theory; Capital Punishment; Juvenile Offending; Domestic Abuse; Sexual Crimes; Conclusion; Index. (shrink)

This is a presentation of the utilitarian approach to punishment. It is meant for students. A note added in July, 2022 advises the reader about the author's current views on some topics in the paper. The first section discusses Bentham's psychological hedonism. The second briefly criticizes it. The third section explains abstractly how utilitarianism would determine of the right amount of punishment. The fourth section applies the theory to some cases, and brings out how utilitarianism could favor punishments (...) more or less severe than the lex talionis. (shrink)

Despite the enormity of the financial losses flowing from the 2008 financial crisis and the outrageousness of the conduct that led up to it, almost no individual involved has been prosecuted for criminal conduct, much less actually gone to prison. What this chapter argues is that the failure to punish those in management for their role in this misconduct stems from a misunderstanding of the need to prove that they personally knew of this wrongdoing and harbored an intent to defraud. (...) But not only would negligence be a sufficient legal and moral basis for imposing terms of imprisonment in these cases, mere causal responsibility would also be enough, for causal responsibility has embed in it all we need to find those causally responsible morally responsible too, and once some basis for moral responsibility is established, the imposition of terms of imprisonment is both legally permitted and morally just. (shrink)

This thesis examines some of the legal philosophical issues that are implicated in the problem of outcome luck. In the context of criminal law, the problem asks whether we should hold agents criminally liable for the consequences of their actions given that those consequences are never wholly within anyone’s control. I conclude that outcomes should matter to an agent’s liability and punishment, and I make this argument indirectly by examining some of the foundational questions in legal theory. The thesis (...) begins by considering a current trend in some areas of philosophy. This trend involves attempts to address philosophical problems surrounding luck by doing conceptual analyses on the nature of luck. Chapter 1 critically examines modal theories, which conceptualize luck, as well as the related concept of risk, in terms of close possible worlds rather than probabilistic likelihood. I argue that not only are modal theories uninformative, but conceptual analyses on luck are unhelpful in addressing philosophical questions surrounding luck. Chapter 2 then returns to the traditional notion of luck as lack of control, and focuses on the relationship between luck, risk, and culpability. Some theorists argue that culpability, for any offence, is in part a function of the degree of risk the agent imposes on others. In the context of criminal law, degrees of luck and risk can both be understood in terms of degrees of control, so the suggestion that culpability is a function of the level of risk imposed (and thus of the degree of control an agent exercises) is attractive for insulating culpability judgments from luck. However, I argue that this view is mistaken because culpability is only sensitive to risk in reckless actions, but not in purposeful actions. The problem of outcome luck may raise different questions for reckless actions and purposeful actions. Chapter 3 looks at the mens rea element of criminal attempts, which is crucial for understanding the problem of luck in the context of purposeful actions. I discuss a variation of what are sometimes referred to as impossible attempts, which have helped shape current English law. I argue that the current doctrine is largely correct, and that perhaps with the exception of few paradigm sexual offences, the mens rea element for attempts should require a direct intention as to the consequence element of an offence, and knowledge or belief as to the circumstance element of that offence. Chapters 4 and 5 then look at normative justifications of criminal punishment. In order to understand whether outcomes should matter for punishment, we must first understand whether and why punishment is an appropriate response to criminal offending. Here, I defend a communicative theory, where punishment is a communicative process between the offender, the political community, and the victim. What punishment communicates is the appropriate degree of censure that is warranted in response to the offender’s wrongdoing. And in doing this, it publicly recognizes the wrong that has been committed by the offender. Chapter 4 offers a detailed explanation of this account, and argues that the political community’s recognition of wrongdoing is a valuable aim of communication. Chapter 5 then takes up a crucial challenge against communicative theories of punishment, which is that such theories fail to take crime prevention seriously. Against this criticism, I will show that general prevention can in fact be an essential part of communicative punishment. And I will show that it is specifically the political community’s recognition of wrongdoing that entails punishment’s preventive aims. (shrink)

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it (...) is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. -/- Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime. (shrink)

Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide. Punishment (2nd edition) is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine (...) all leading contemporary theories of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking. This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology. "Lucid, fair-minded, and well-informed, Thom Brooks’ Punishment offers a superb introduction to a complex and contentious subject. Many a perplexed student will find illumination in his patient discussion of each of the leading theories. The way Brooks shows their interconnectedness and application in practice – to capital punishment, juvenile offenders, domestic violence, and the like – will interest not only students but scholars as well." ―Stuart P. Green, Distinguished Professor of Law and Nathan L. Jacobs Scholar, Rutgers School of Law "As a topic in moral and political philosophy, punishment has been jolted back to life. In the last quarter century, retribution has returned with a vengeance, both in the theoretical literature and (with a very different emphasis) in public policy. The rise of the victim as a player in the criminal justice system has also fuelled a counter-trend, placing an emphasis on redress. Human rights, privatization, globalization, the rise of the therapist, the lobbyist, the terrorist: all have affected our ways of punishing and of thinking about punishment. A new survey of the terrain is overdue. And who better to conduct it than Thom Brooks, whose grasp of the literature and feel for the issues is second to none? From the noble ideals of ‘communicative’ theory to the grim realities of children in prison: in Punishment Brooks covers it all with insight, rigour, and energy." ―John Gardner, Professor of Jurisprudence, University of Oxford "Thom Brooks has produced a valuable introduction to, and critical survey of, current theoretical approaches to punishment together with an analysis of their implications for practice. In addition, he has provided a spirited defence of a new, unified theory inspired by the British Idealists and encompassing retributive, consequentialist, and restorative elements. Written in a lucid and engaging style, the book will interest a wide range of readers – students, theorists of punishment, as well as those engaged in criminal justice policy." ―Alan Brudner, Albert Abel Professor Emeritus, Faculty of Law, University of Toronto. (shrink)

One of the most controversial aspects of legal philosophy concerns the justification of specific punishments for particular criminal violations. Surprisingly, there has not been any attempt to arrive systematically at any conclusive formula for deriving correct punishments. This article aspires to fulfil this urgent need. I shall examine (1) retributive, (2) consequentialist, (3) reformative, and (4) deterrent punishments in an attempt to derive general equations. It is my wish that by contributing a general formula for each theory we might have (...) a new perspective for comparison. This article finds that the contestability of ascertaining the most appropriate punishment for a criminal is in large part a product of the unstable foundations each penal theory rests on. In addition, almost every variety of penal theories relies on assumptions about criminal culpability, grounded in implicit intentionality. Thus, the contestability of choosing correct punishments to ‘fit’ different crimes is primarily dependent upon the best judgement of judicial officers, not on empirical ‘facts’. (shrink)

How can a state be morally justified in punishing some of its citizens? In tackling this I shall set aside three important matters: we do not morally approve of all the laws of the land, so that sometimes there is a legal but not a moral case against an offender; we can do more things about crime than just punish the criminals, for example remedying the familial and social conditions that encourage it; and, thirdly, many actual penal institutions do (...) things to convicts that are indefensible by any decent standard. My topic may be humanly less important than any of those three; but I want to discuss it and not them. Like many others, I hold that the punishment is justified only to the extent that it does good, that is, leads to a better over-all state of affairs than would have obtained otherwise. Some versions of this view, however, assign to doing-good a role in which it swamps other considerations which most of us think are also essential to a defensible penal system. My aim in this paper will be remedy this defect - to reconcile a doing-good justification with the rest of what we think about punishment. The fear that this cannot be done has led some to question whether our having penal systems and procedures does any good. Jacobs may be right in stressing how hard it is to discover what the consequences are of any given system of punishment (1999: 540), but it would be lamentable if that led us to omit doing-good from our view of what justifies punishment. I shall return to this topic at the end of Section 7, offering to relieve Jacobs of his fears. I usually think of the good that punishment can do in terms of the deterrence of potential offenders - the punished person or others who learn about his punishment. In all the uncertainty about what our penal procedures achieve, it seems certain that they have a deterrent effect without which our society would be lost. There are other possible goods: making the convict a better person; placating victims and their kin; increasing our sense of the majesty and importance of the law; and so on.. (shrink)

My main aims in this paper are to further clarify and defend the Duty View of punishment, outlined in my book The Ends of Harm, by responding to some objections to it, and by exploring some variations on that view. I briefly lay out some steps in the justification of punishment that I defend more completely in Chapter 12 of The Ends of Harm. I offer some further support for these steps. They justify punishment of an offender (...) for general deterrence reasons if the beneficiary of general deterrence is the victim of the crime. They do so firstly on the basis that offenders incur compensatory duties to victims. I then show that duties incurred through serious wrongdoing are not limited to the duty to provide full compensation. Because offenders incur the relevant duties, and the duties are enforceable, harming them to protect their victims does not wrong them. I then consider whether an offender can be harmed in order to protect people other than the victims of her crime. In this section, I respond to an important challenge to the general idea that we can justify punishment on the basis of duties incurred as a result of wrongdoing, a challenge that I had met only in part in The Ends of Harm. It might be argued that the duties that we incur through serious wrongdoing are owed only to victims of crime. In punishing offenders, in contrast, we aim to protect people in a society more generally, and not just crime victims. A plausible theory of punishment must demonstrate that we are justified in pursuing this aim. Hence, it might be argued, the Duty View fails. I will respond by showing that the duties incurred through wrongdoing are not limited to duties owed to victims, and hence this challenge to the Duty View can be met. (shrink)

How can a system of criminal punishment be justified? In particular can it be justified if the moral demand that we respect each other as autonomous moral agents is taken seriously? Traditional attempts to justify punishment as a deterrent or as retribution fail, but Duff suggests that punishment can be understood as a communicative attempt to bring a wrong-doer to repent her crime. This account is supported by discussions of moral blame, of penance, of the nature (...) of the law's demands, and of the proper meaning and purpose of the criminal process of trial and verdict: it deals both with the ideals that should inform a system of criminal law and the extent to which those ideals are actualised in existing institutions and practices. The conclusion is pessimistic: punishment cannot be justified within our legal system; and this gap between the ideal and the actual presents us with serious moral dilemmas. (shrink)

Adherents to reconciliation, restorative justice, and related approaches to dealing with social conflict are well known for seeking to minimize punishment, in favor of offenders hearing out victims, making an apology, and effecting compensation for wrongful harm as well as victims forgiving offenders and accepting their reintegration into society. In contrast, I maintain that social reconciliation and similar concepts in fact characteristically require punishment but do not require forgiveness. I argue that a reconciliatory response to crime that (...) includes punitive disavowal but not necessarily forgiveness is supported by an analogy with resolving two-person conflict and by relational facets of human dignity. I also specify a novel account of the type of penalty that is justified by reconciliation, namely, burdensome labor that is likely to foster moral reform on the part of wrongdoers and to compensate their victims, which would serve neither retributive nor deterrent functions. I illustrate this conception of punishment in contexts that include having cheated on an exam at a university, engaged in criminal behavior such as robbery, and committed atrocities during large-scale social conflict. (shrink)

This paper focuses on the role of punishment as a critical social mechanism for cheating prevention in MMORPGs. The role of punishment is empirically investigated in a case study of the MMORPG Tibia and by focusing on the use of bots to cheat. We describe the failure of punishment in Tibia, which is perceived by players as one of the elements facilitating the proliferation of bots. In this process some players act as a moral enterprising group contributing (...) to the reform of the game rules and in particular to the reform of the Tibia punishment system by the game company. In the conclusion we consider the ethical issues raised by our findings and we propose some general reflections on the role of punishment and social mechanisms for the governance of online worlds more generally. (shrink)

How can a system of criminal punishment be justified? In particular can it be justified if the moral demand that we respect each other as autonomous moral agents is taken seriously? Traditional attempts to justify punishment as a deterrent or as retribution fail, but Duff suggests that punishment can be understood as a communicative attempt to bring a wrong-doer to repent her crime. This account is supported by discussions of moral blame, of penance, of the nature (...) of the law's demands, and of the proper meaning and purpose of the criminal process of trial and verdict: it deals both with the ideals that should inform a system of criminal law and the extent to which those ideals are actualised in existing institutions and practices. The conclusion is pessimistic: punishment cannot be justified within our legal system; and this gap between the ideal and the actual presents us with serious moral dilemmas. (shrink)

In this article I explore ways to argue about punishment of personal representations in virtual reality. I will defend the idea that such punishing might sometimes be morally required. I offer four different lines of argument: one consequentialistic, one appealing to an idea of appropriateness, one using the notion of organic wholes, and one starting from a supposed inability to determine the limits of the extension of the moral agent. I conclude that all four approaches could, in some cases, (...) justify punishing a virtual reality representation; an avatar. As a consequence of my conclusion, I suggest that our institutionalized criminal justice system must be broadened in scope and punitive measures, in order to cover the new and difficult cases arising in virtual reality. (shrink)

If crime is a social problem, then ways of preventing it must be sought. Punishment has been the traditional approach to preventing crime, either as a deterrent, or as a means of reforming the offender. Neither of these approaches is wholly acceptable. Even if deterrence punishment, as grounded in utilitarianism, effectively prevents crime, there may be other methods which produce better results. Reform fails to justify any form of punishment since not only does (...) class='Hi'>punishment not reform, but it interferes with the reformative process. Reform is limited in scope to those people who commit crimes and are caught. If crime is to be prevented, then it is necessary to go beyond the crime and the criminal and consider the social contexts in which people act, and the ways in which they learn to react to them. By shaping both the environment and people's responses to it, society can solve the problem of preventing crime, without the need for punishment. (shrink)

Discussions of punishment have always assumed that there are no circumstances in which someone can be justifiably punished for a crime that he will commit. This assumption has been directly challenged by Christopher New’s apparent example of morally justified ‘prepunishment’ [7]. In a recent paper, Fred Feldman rejects the ‘received wisdom’1 that desert cannot precede its basis by giving apparent examples of ‘predeserved’ charity, reward and apology [3, pp. 71-75]. If there can be cases of predeserved punishment (...) as well, then anyone who holds that it is morally justifiable to punish an offender if and only if he deserves it, must agree with New. For such desert theorists must say that since the offender predeserves punishment then it is morally right to prepunish him. Feldman himself however gives reasons why no legal authority should ever decide that someone predeserves punishment [3, pp. 76-78]. But a careful examination of New’s example shows that these reasons are inadequate. In any case, Feldman is committed to the different but undefended claim that there can be no cases of predeserved punishment. In fact the desert theorist has an excellent reason for defending this claim. Good reasons for saying that prepunishment is wrong are also available to the deterrence theorist. Given the correctness of our intuition that this is the right verdict, both theorists pass the test of New’s fantastic example. But the desert theorist passes it better, because the all the reasons available to the deterrence theorist for judging prepunishment wrong are subordinate to those of the desert theorist. Finally I argue that despite Feldman’s examples, there is no reason to think that there are any predeserts at all. (shrink)

It is widely held that the proper role of criminal punishment is to ensure in a cost-efficient manner that criminal laws will be obeyed. As James Buchanan puts it,the reason we have courts is not that we want people to be convicted of crimes but that we want people not to commit them. The whole procedure of the law is one, essentially, of threatening people with unpleasant consequences if they do things which are regarded as objectionable.According to the deterrence (...) theory of punishment, which I will here accept without argument in order to tease out some of its implications, legislators must be aware of opportunities to maximize the threat value of criminal prohibitions. By maximizing deterrence, we minimize the cost of crime. On the other hand, creating these threats, and carrying them out, is also costly. So we also wish to minimize the cost of avoiding crime. An efficient deterrent, therefore, will be one which minimizes the sum of the costs of crime and crime avoidance, where ‘cost’ is to be broadly construed. (shrink)

In Crime and Punishment in Islamic Law: A Fresh Interpretation, Mohammad Kamali considers problems associated with and proposals for reform of the hudud punishments prescribed by Islamic criminal law, and other topics related to crime and punishment in Shariah.

This article concerns the problems of proportionality in the theory of punishment. The problem is how to determine whether the severity of a punishment for a criminal offense is proportional to the seriousness of that offense. The resolution to this problem proposed in the article is that, first, one understand punishment as pain or loss intentionally and openly inflicted on someone S in retaliation for something S did, by a person or agent who is at least as (...) powerful as S, and, second, one take such retaliatory pain or loss as, within stable social groups, a means for preserving social order. Accordingly, it is argued that, on this proposal, the measure by which the severity of punishment is determined to be proportional to the seriousness of the crime for which it is inflicted is the minimal amount of pain or loss necessary to preserve social order. Sentencing policies that follow this measure, it is then observed, tend to yield less severe punishments than the policies that classical deterrence theory yields. Finally, the article offers an argument for regarding as morally more defensible sentencing policies whose goal is preserving social order than sentencing policies whose goal is that of classical deterrence theory, which is to achieve the smallest incidence of crimes consistent with not diminishing the overall welfare of society. (shrink)

Discussion in this paper focuses on how strongly we should prefer non-punishment of persons guilty of serious crimes to punishment of persons innocent of them. William Blackstone's version of that preference, expressed as a ten to one ratio, is first shown to be untenable on standard accounts of legal punishment's justifying aims. Somewhat weaker versions of that ratio also appear suspect. More to the point, Blackstone's adage obscures the crucial way in which there are risks to be (...) assessed in setting up a criminal justice system - the risk that it will not be eff ective enough at apprehending and punishing serious off enders, as well as the risk that it will expose innocent persons to harsh punishment. I urge a balancing of such risks, and argue that the salient features of many contemporary criminal justice systems can be plausibly interpreted as attempting to achieve and maintain such a balance. We do not grant criminal defendants a presumption of innocence that the state must overcome with proof of guilt beyond a reasonable doubt in order to institutionally express a strong degree of preference for non-punishment of the guilty to punishment of the innocent. Instead, we do so in order to ensure that institutions of legal punishment have suffi cient scope while preserving their ability to accurately sort the guilty from the innocent. (shrink)

A large proportion of the population thinks that capital punishment is a reasonable method to reduce crime and punish those who have been convicted of a capital crime. I discuss aspects to the philosophy of capital punishment, and analyze factual elements of murder conviction processes, to significantly cast doubt on the pro-capital punishment argument. In order to measure the true value and need for capital punishment, one must analyze pro capital punishment arguments in (...) light of the alternatives. While theories of deterrence, incapacitation and retribution will be reviewed, theories of rehabilitation and restoration will not since they are not applicable to the capital punishment discussion. With increased legal protections, which are a good thing, and rising costs of incarceration, capital punishment is not the greatest good punishment option for capital crime. The remaining options are revising the capital punishment system, an enormous challenge, or suspending it indefinitely. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Stewart R. Sutherland LANGUAGE AND INTERPRETATION IN CRIME AND PUNISHMENT OF some novels it is possible to argue with justification that the problems of interpretation and understanding begin on the first page. Of Dostoyevsky's Crime and Punishment it is possible to contend that the problems of interpretation and understanding begin on the title page. The terms "crime" and "punishment" are overtly moral. The (...) novel is read in the context of a title which exhibits its values where they may be seen by all. What significance must we attach to the choice of such a title? It is possible that the title gives to us a characterization of the content of the novel which, retrospectively, we can only regard as either self-consciously ironical, or perhaps pathetically so, but how are we to decide whether this is more than a possibility? Having raised this question, I propose to set it aside in the hope of returning to it equipped with the experience derived from a number of literary and philosophical digressions. The literary and conceptual style of critical comment upon a novel often betrays much that is definitive of the response being elucidated. If one compares and contrasts Philip Rahv's essay on Crime and Punishment with the appropriate chapter of Mochulsky's Dostoevsky,2 the implication of this general claim may be clarified. My intention here is to use largely ostensive means to suggest the radically different accounts of the novel given to us by these two writers. That the conclusions are different is hardly in need of statement. What is worth examining is the character of the language and of the arguments used to substantiate those conclusions. The point of my discussion will rest not upon assessing the accuracy or legitimacy of particular judgments, but rather upon delineating the general contours of the intellectual contexts in which these judgments are offered. 223 224Philosophy and Literature Rahv's focus is on the character or psyche of Raskolnikov. The novel is seen largely in the form of a psychological study of the mind of the murderer. He reminds us that a central problem for Raskolnikov, for the reader, and for Dostoyevsky himself, is the identification of Raskolnikov's motive—not that there is an absence of motives, indeed quite the reverse: "He is soon lost in the maze of his own motivation" (p. 20). His mind spins incessantly upon an axis the nature of which is nowhere made unambiguously apparent. Nor, it seems, can we replace our search for a motive, or the sufficient reason for action, by identifying a supreme assertion of will: again, on the contrary, we are told, "Dostoyevsky is the first novelist to have fully accepted and dramatized the principle of uncertainty or indeterminacy in the presentation of character" (p. 21). Despite that, however, the success of the novel rests upon Dostoyevsky's skills in allying the insight "... that human consciousness is inexhaustible and incalculable" (p. 19), to "his capacity to combine [seeming contradictions] in a single brain and a single psyche, while staving off the danger of incoherence at one end and of the specious reconciliation at the other..." (p. 38). The mood ofRahv's treatment of the novel is dominated in this way by the language of (largely popularized) psychology—"pathological depression," "nameless guilt-feelings," "wishful fantasy"—and not surprisingly, he sees his own preoccupations as mirroring those of Dostoyevsky: "What Dostoyevsky has done in revising Raskolnikov's justification is to convert into a theory of human nature what is in Hegel not a psychological theory at all but a theory of men as subjects and objects of history" (p. 34). Mochulsky, on the other hand, breathes a very different atmosphere. From the outset he talks of "the spiritual existence of Dostoyevsky's heroes," and he says of a man who wills a murder or one who "betrays himself to the powers of dark necessity" (pp. 302-303), "The murderer has stepped beyond something more than the moral law: the very basis ofthe spiritual worlditself" (p. 303). "The whole tragedy of man-godhood," he tells us, "is expressed in these few words: 'It seems to me,' Raskolnikov says, 'truly great people experience an immense... (shrink)

This chapter first clarifies what it would mean to abolish punishment. Abolishing state punishment in both law and practice would mean doing away with one category of social control, as opposed to merely reforming punishment or limiting its application. After surveying some of the major historical trends in criminal punishment and its justification, we discover that the two main theories of punishment—deterrence and retribution—could not warrant doing away with punishment. Incapacitation is an incomplete alternative. (...) Only reform theories are, strictly speaking, proposals for abolishing punishment. However, reform theories are inconsistent with historical practice and they cannot address all classes of crime. Therefore, abolishing punishment for all crimes cannot plausibly be justified. (shrink)

This book is the joint work of a moralist, a sociologist and a psychologist arguing, as the sub-title indicates, for the abolition of capital punishment. Fr Tidmarsh’s essay provides the ‘Theoretical Framework’ of the discussion. He examines the notion of punishment as retributive, reformative and deterrent. He refuses to be drawn into the kind of detailed discussion that finds its place in the two essays that follow; but what he says is clarifying and indispensable. He points the difficulty (...) of formulating a ‘pure’ retributive theory of punishment; and the fact that ‘considerations of retribution may yield negative criteria—they may prevent our punishing the innocent and they may prevent our allowing considerations of expediency from too easily outweighing the general rule that the guilty are to be punished—but they have little, if any, positive contribution to make to the assessment of just punishments’. He remarks the different meanings given to reformation; does it mean the actual betterment of the offender’s frame of mind, or merely the fact that he refrains from crime in the future? And how, in fact, does punishment operate reform? And there is the paradox of the deterrent view of punishment—‘those crimes ought to be the more heavily punished that are the more difficult to refrain from committing, since it needs a greater motive for fear to restrain those tempted to them than is needed from those temptations more easily resisted. Passion, provocation, inadvertence, become not extenuating but exacerbating circumstances... ‘. (shrink)

This book is the joint work of a moralist, a sociologist and a psychologist arguing, as the sub-title indicates, for the abolition of capital punishment. Fr Tidmarsh’s essay provides the ‘Theoretical Framework’ of the discussion. He examines the notion of punishment as retributive, reformative and deterrent. He refuses to be drawn into the kind of detailed discussion that finds its place in the two essays that follow; but what he says is clarifying and indispensable. He points the difficulty (...) of formulating a ‘pure’ retributive theory of punishment; and the fact that ‘considerations of retribution may yield negative criteria—they may prevent our punishing the innocent and they may prevent our allowing considerations of expediency from too easily outweighing the general rule that the guilty are to be punished—but they have little, if any, positive contribution to make to the assessment of just punishments’. He remarks the different meanings given to reformation; does it mean the actual betterment of the offender’s frame of mind, or merely the fact that he refrains from crime in the future? And how, in fact, does punishment operate reform? And there is the paradox of the deterrent view of punishment—‘those crimes ought to be the more heavily punished that are the more difficult to refrain from committing, since it needs a greater motive for fear to restrain those tempted to them than is needed from those temptations more easily resisted. Passion, provocation, inadvertence, become not extenuating but exacerbating circumstances... ‘. (shrink)

This article opens with the consequentialist–deontologist debate, with the former concerned about the relevance of punitive measures against their crime reducing potentials, while the latter highlights punishment as censure of wrongful acts and the proportion of the punishment to the degree of crime. The article briefly discusses the empirical research on the impact of penal sanctions and focuses on three main kinds of empirical research into possible general deterrent effects—namely, association studies, quasi-experimental studies, and contextual and (...) perceptual studies. It addresses the methodological issues involved in deterrence research and summarizes the results precisely. This article also discusses reductivism in the view of the possibility that penal sanctions could influence the offender's will. The results suggest that crime preventive aims can justify sentencing policies only to a limited degree, at least for the foreseeable future. (shrink)

This chapter explores whether chemical castration can be justified as a form of criminal punishment. The author argues that castration via the drug medroxyprogesterone acetate (MPA), or some similar drug, does not achieve the punishment aims of retribution, deterrence, or incapacitation, but might serve as punishment in the form of rehabilitative treatment. However, current U.S. chemical castration statutes are too broad to be justified as rehabilitative. The state is warranted in targeting psychological states in criminal defendants for (...) rehabilitative treatment where such states (a) act as a primary cause of a criminal offender’s crime and (b) give rise to extraordinary worries that the offender will recidivate. Current statutes qualify criminal offenders for castration who do not have overwhelming sexual urges or other psychological states causally related to their crime that may be treated with MPA. Thus, even assuming the efficacy of MPA, such statutes are unjustifiable because they apply chemical castration to offenders for whom castration will have no rehabilitative effect. (shrink)

Over the last decade, theorists have persistently criticised the assumption that the International Criminal Court (ICC) can produce a noteworthy deterrent effect. Consequently, consensus has emerged that we should probably look for different ways to justify the ICC or else abandon the prestigious project entirely. In this paper, I argue that these claims are ill founded and rest primarily on misunderstandings as to the idea of deterrence through punishment. They tend to overstate both the epistemic certainty as to and (...) the size of the deterrent effect necessary in order to thus justify punishment. I argue that we should in general expect reasonably humane punitive institutions to lead to better consequences than if we abolish punishment entirely, and I show that, contrary to widespread assumption among critics of the ICC, we should not expect the conditions characteristically surrounding mass atrocity to undermine this presumption. Properly understood, the ICC equals adding another “slice of cheese” to our comprehensive crime preventive system modelled along the lines of James Reason’s Swiss cheese model of accident causation and risk management. Undoubtedly, some future perpetrators will elope through the holes in this layer too, but others will be deterred. (shrink)

I defend a deontological social contract justification of punishment for free will deniers. Even if nobody has free will, a criminal justice system is fair to the people it targets if we would consent to it in a version of original position deliberation (OPD) where we assumed that we would be targeted by the justice system when the veil is raised. Even if we assumed we would be convicted of a crime, we would consent to the imprisonment of (...) violent criminals if prison conditions were better than the state of nature but deterring enough to prevent the state of nature. And even if we assumed we would be accused of a crime, we would consent to an evidentiary standard low enough to allow a conviction rate sufficient to prevent the state of nature. After explaining this justification, I contrast it with the public health quarantine justification defended by Derk Pereboom and Gregg Caruso, and argue that it provides a stronger response to the using criminals as mere means objection. (shrink)

Rodion Raskolnikov, the central figure in Dostoyevsky’s Crime and Punishment, is one of the best-known characters in the world of the novel but one who continues to pose major interpretive problems. Why exactly does he murder the old pawnbroker and her sister? Why, throughout the novel, does he continue to believe that he has committed no crime? And why, despite this belief, does he suffer a form of psychological breakdown and eventually give himself up to the police? (...) This article, which traces Raskolnikov’s literary ancestry to Les Liaisons dangereuses and Le Père Goriot, argues that Raskolnikov, a prototype of the modern “virtuous assassin” described by Albert Camus in L’Homme révolté, commits murder to implement a “magnificent” idea that will establish his worth as a human being. His ultimate collapse results not, as sometimes suggested, from guilt or remorse, or a belief that he has deluded himself about his motives, but from the state of irremediable solitude into which his act plunges him. (shrink)

Since 1900, debates about the justification of punishment have also been debates about the cause of crime. In the early twentieth century, the rehabilitative ideal of punishment viewed mental illness and dysfunction in individuals as the cause of crime. Starting in the 1970s, retributivism identified the immorality of human agents as the source of crime, which dovetailed well with the “tough-on-crime” political milieu of the 1980s and 1990s that produced mass incarceration. After surveying these (...) historical trends, Wirts argues for a social critical view that crime is best understood as a product of an unjust society, not faulty human beings. This view should take the lessons learned by the critiques of rehabilitation, however, and resist the tendency to reduce human beings to recipients of social services. (shrink)