I start from the presupposition that the use of force against another is justified only in self-defence or in defence of others against aggression. If so, the main work of justifying punishment must rely on its deterrent effect, since most punishments have no other significant self-defensive effect. It has often been objected to the deterrent justification of punishment that it commits us to using offenders unacceptably, and that it is unable to deliver acceptable limits on punishment. I describe a sort (...) of deterrent theory which can avoid both of these objections. (shrink)

In this article, I analyse deterrence theory and argue that its applicability to cyberspace is limited and that these limits are not trivial. They are the consequence of fundamental differences between deterrence theory and the nature of cyber conflicts and cyberspace. The goals of this analysis are to identify the limits of deterrence theory in cyberspace, clear the ground of inadequate approaches to cyber deterrence, and define the conceptual space for a domain-specific (...) class='Hi'>theory of cyber deterrence, still to be developed. (shrink)

Among the many assaults upon widely held views in social and political philosophy to be found in Robert Nozick's Anarchy, State, and Utopia, is a novel criticism of the utilitarian deterrence theory of punishment. Nozick believes that this criticism is absolutely decisive, and, indeed, in his words, establishes the utilitarian deterrence theory's "non existence." The purpose of this paper is to show that Nozick's criticism rests upon a tacit crucial error about the nature of punishment. This (...) error, while an elementary one, is evidently easy to make since not only Nozick falls prey to it but also some prominent utilitarians themselves. Recognizing the error makes possible a more careful statement of the utilitarian deterrence theory that avoids Nozick's criticism. (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)

Anthony Ellis attempts to offer a deterrence theory of punishment that overcomes a number of common criticisms of deterrence theories in general. While his discussion does suggest many interesting responses that proponents of deterrence theories might use, the theory he defends is problematic for several reasons.

The just war tradition stands as the moral and prudential alternative to both pacifism and realism. It forms the only reasonable ethical basis for the understanding of state initiated force. As applied to questions of nuclear deterrence, just war theory is incompatible with Mutual Assured Destruction and with the threat of MAD. Just war theory entails a move toward counterforce with discriminate targeting of military capabilities and away from city targeting. This is now becoming possible technically and (...) is morally indicated. The counterforce option is realistic in that nuclear disarmament is an extremely remote possibility and alternate strategies such as bluff ore not workable. A counterforce strategy would be both discriminate and proportional as well as being in accord with political realism. (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)

(1986). Deterrence and Moral Theory. Canadian Journal of Philosophy: Vol. 16, Supplementary Volume 12: Nuclear Weapons, Deterrence and Disarmament, pp. 161-193.

IntroductionIssues in public policy have been challenging and remaking moral theory for two centuries. Such issues force us to question fundamental principles of ethics while they cast doubt on our ability to generalize from traditional intuitions. No issue poses more remarkable difficulties for moral theory than nuclear weapons policy. Because the consequences of their deployment and therefore possible use could be grievous beyond those of any previously conceivable human action, these weapons frame the conflict between outcome-based, especially utilitarian, (...) and action-based deontological moral theories more acutely than perhaps any other we have faced. Just because nuclear weapons may bring about the most grievous outcome imaginable, they elevate concern with outcomes over concern with actions. More generally, they wreak havoc with the focus on the morality of individual choices and actions, set limits to the notion of intention and the doctrine of double effect, call into question the so-called just-war theory, and overwhelm the intuitionist basis of much of ethical reasoning. (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)

The best of twentieth century philosophy questions the basic assumptions of modernity. These works reject the classical enterprise of epistemology by undermining the twin notions of foundationalism and essentialism, as well as the perceptual metaphors for the mind upon which they have rested. In addition, they expose the supposedly value-neutral, ahistorical methods of philosophy, including conceptual analysis. The demise of the analytic/synthetic distinction, the rejection of the appeal to the given, the failure of reference theories of meaning, and the incoherence (...) of correspondence theories of truth that go beyond Tarskian minimalism made the undermining of epistemology inevitable. Increasingly, there is the recognition that historicist claims about human knowledge and inquiry are simply unassailable and that justification is a holistic, social phenomena. (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)

This article defends deterrence as an aim of punishment. Specifically, I contend that a system of punishment aimed at deterrence (with constraints to prohibit punishing the innocent or excessively punishing the guilty) is consistent with the liberal principle of respect for offenders as autonomous moral persons. I consider three versions of the objection that deterrent punishment fails to respect offenders. The first version, raised by Jeffrie Murphy and others, charges that deterrent punishment uses offenders as mere means to (...) securing the social good of crime reduction. The second and third are developed by R.A. Duff. The second holds that deterrent punishment inappropriately excludes offenders from the moral community. The third charges that deterrent punishment offers community members the wrong sorts of reasons to comply with the law. I conclude that each of these objections fails. A system of punishment aimed at deterrence (suitably constrained) is consistent with respect for offenders as moral persons. (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)

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)

This article describes the important structural characteristics of a recently developed game-theoretic model of deterrence, summarizes the major deductions drown from it, and discusses its implications for both the theory of deterrence and the current strategic relationship of the superpowers. The model shows that a credible threat and a power advantage are neither necessary nor sufficient conditions for stable deterrence. It also suggests that, even under ideal conditions, deterrence is an intricate and fundamentally fragile relationship (...) that rests, ultimately, upon the preferences and perceptions of key decision-makers rather than upon the nature and composition of each side’s strategic arsenal. (shrink)

My thesis explores the possibility that the wrongful intentions principle might not apply in certain deterrent situations. WIP states that if it is wrong to do something under certain conditions, it is wrong to intend to do it should those conditions arise. Questions about applications of WIP are frequently raised in discussions about the morality of nuclear deterrence. Some philosophers, such as Gregory Kavka, maintain that in certain situations where gaining deterrence is important, it is morally permissible, and (...) perhaps even obligatory to form a sincere intention to retaliate although retaliation is wrong. ;The rejection of WIP causes paradoxes about relationships between good agents and right actions. Good and rational agents are unable to fulfill obligations to intend wrong, as their unwillingness to do wrong makes intending it impossible. Hence, the paradoxical conclusion that only a corrupt individual can do right in certain situations. ;The conclusion that in certain situations only corrupt agents can do right rests upon rejecting the WIP. I show that WIP applies in all deterrence situations and in all situations, period. Because WIP always applies, there are no situations where goodness and rationality prevent right action. ;Chapter one presents consequentialist and non-consequentialist arguments to the conclusion that actual retaliation against civilian populations is wrong. In chapters two and three I argue that the kinds of situations discussed by Kavka and others doesn't warrant rejecting WIP. I maintain that non-consequentialist theories cannot permit agents to separate questions about intentions from questions about actions. Consequentialism cannot justify rejecting WIP in these situations either. Rejection of WIP implies that a corrupt leader is needed, and consequentialism cannot justify seeking such a leader. Chapter four argues that WIP must apply in all situations because it must be part of any action-guiding theory, either consequentialist or non-consequentialist. Talk of rejecting WIP is incoherent. Hence, because WIP always applies, goodness and rationality will never preclude right action, and whenever performing an action is wrong, intending to perform it is wrong as well. (shrink)

In my 'A Deterrence Theory of Punishment', I argued that a deterrence system of punishment can avoid the charge that it illegitimately uses offenders if its punishments are carried out 'quasiautomatically': threats are issued by a legislature for deterrent purposes, but those who carry out the punishments have no authority to take deterrent considerations into account. Sprague has objected that under such a system, those who carry out punishments will be unable to justify their actions. I reply (...) that if it is justifiable to set up the system in this way in the first place, then this justification will transmit to all actions carried out under it; and that it is justifiable to set up an institution of punishment in this way. (shrink)

Contemporary theories of deterrence place a strong emphasis on coherency between model and theory. Schelling’s contention of irrational threats for successful deterrence abandons the rationality assumption to explain how a player can deter, thereby departing from the standard game theoretic solution concepts. It is a misfit model in relation to a deterrence theory and, therefore, excluded. The article defends and remodels Schelling’s intuition by employing the level-k model. It is shown that an unsophisticated player that (...) randomizes over its strategies brings about an advantageous outcome. The model also shows that the belief that a player randomizes has the same deterrent effect, as an actual stochastic choice, like Schelling suggested. While this means Schelling’s idea can be saved, it is still problematic how we should view contributions of bounded rationality in relation to current deterrence theory. The article suggests that separating the purpose of a model in conjunction with allowing other scientific ideals than model-theory coherence permits a broader and philosophically sounder approach. (shrink)

It is extraordinary, when one thinks about it, how little attention has been paid by theorists of the nature and justification of punishment to the idea that punishment is essentially a matter of self-defense. H. L. A. Hart, for example, in his famous “Prolegomenon to the Principles of Punishment,” is clearly committed to the view that, at bottom, there are just three directions in which a plausible theory of punishment can go: we can try to justify punishment on purely (...) consequentialist grounds, which for Hart, I think, would be to try to construct a purely utilitarian justification of punishment; we can try to justify punishment on purely retributive grounds; or we can try to justify punishment on grounds that are some sort of shrewd combination of consequentialist and retributive considerations. Entirely absent from Hart's discussion is any consideration of the possibility that punishment might be neither a matter of maximizing the good, nor of exacting retribution for a wrongful act, nor of some imaginative combination of these things, but, rather, of something altogether different from either of them: namely, the exercise of a fundamental right of self-protection. Similarly, but much more recently, R. A. Duff, despite the fact that he himself introduces and defends an extremely interesting fourth possibility, begins his discussion by writing as though, apart from his contribution, there are available to us essentially just the options previously sketched by Hart. Again, there is no mention here, any more than in Hart's or any number of other recent discussions, of the possibility that we might be able to justify the institution of punishment on grounds that are indeed forward-looking, to use Hart's famous term, but that are not at all consequentialist in any ordinary sense of the word. (shrink)

Theories of cyber deterrence are developing rapidly. However, the literature is missing an important ingredient—warfighting for deterrence. This controversial idea, most commonly associated with nuclear strategy during the later stages of the Cold War, affords a number of advantages. It provides enhanced credibility for deterrence, offers means to deal with deterrence failure, improves compliance with the requirements of just war and ultimately ensures that strategy continues to function in the post-deterrence environment. This paper assesses whether (...) a warfighting for deterrence approach is suitable for the cyber domain. In doing so, it challenges the notion that warfighting concepts are unsuitable for operations in cyberspace. To do this, the work constructs a conceptual framework that is then applied to cyber deterrence. It is found that all of the advantages of taking a warfighting stance apply to cyber operations. The paper concludes by constructing a warfighting model for cyber deterrence. This model includes passive and active defences and cross-domain offensive capabilities. The central message of the paper is that a theory of victory must guide the development of cyber deterrence. (shrink)

It is often argued that Kantian and consequentialist approaches to the philosophy of punishment differ on the question of whether using punishment to achieve deterrence is morally acceptable. I show that this is false: both theories judge it to be acceptable. Showing this requires attention to what the Formula of Humanity in Kant requires agents to do. If we use the correct interpretation of this formula we can also see that an anti-consequentialist moral principle used by Victor Tadros to (...) criticize consequentialism is implausible. I go on to examine the version of John Rawls' theory that is used by Sharon Dolovich to develop a Kantian theory of legal punishment. This makes clear why punishment to achieve deterrence in the 'circumstances of justice' is morally acceptable. However, in at least one respect consequentialism gives us a more convincing understanding of the limits on the pursuit of deterrence than the Kantian theory does. (shrink)

There were five kinds of cyber deterrence presented at the workshop on Landscaping strategic cyber deterrence, hosted at the Oxford Internet Institute. They were the well-studied areas of deterrence by ‘punishment’ and ‘denial’, and the novel concepts of deterrence by ‘association’, ‘norms and taboos’, and finally, ‘entanglement’. In the following workshop commentary, I present these five kinds of deterrence and explain them in light of recent developments in the academy and industry. I argue for analytical (...) congruence between all three novel concepts, since they aim to alter the behaviour of actors by adding a social cost in response to breaking norms and conventions. Throughout, I argue that we are beginning to understand how cyber deterrence works, both in theory and practice, and when all concepts are taken together, they become more than the sum of their parts. Finally, I point out an omission of the workshop, where computational modelling and simulation could be added to the landscape of strategic cyber deterrence. (shrink)

There were five kinds of cyber deterrence presented at the workshop on Landscaping strategic cyber deterrence, hosted at the Oxford Internet Institute. They were the well-studied areas of deterrence by ‘punishment’ and ‘denial’, and the novel concepts of deterrence by ‘association’, ‘norms and taboos’, and finally, ‘entanglement’. In the following workshop commentary, I present these five kinds of deterrence and explain them in light of recent developments in the academy and industry. I argue for analytical (...) congruence between all three novel concepts, since they aim to alter the behaviour of actors by adding a social cost in response to breaking norms and conventions. Throughout, I argue that we are beginning to understand how cyber deterrence works, both in theory and practice, and when all concepts are taken together, they become more than the sum of their parts. Finally, I point out an omission of the workshop, where computational modelling and simulation could be added to the landscape of strategic cyber deterrence. (shrink)

In Introduction Bentham considers a difficulty. If the immediate aim of punishment is to deter agents considering breaking the law, then the severity of the threat of punishment must increase if they are strongly tempted to offend. But it seems intuitively that some people who were strongly tempted to offend should be punished leniently. Bentham argues in response that all potential offenders capable of being deterred must be deterred. He makes three mistakes. It is possible that it would produce the (...) most happiness at t2 to punish an offender who could have been deterred at t1, but was not. The Principle of Utility might condemn the threats that would be needed to deter all potential offenders who can be deterred. Given the dispositions to reoffend of some strongly tempted offenders, their punishments should be relatively lenient. There is more room for leniency in Bentham's theory than he realized. (shrink)

The aim of this article is to set out a theory for treatment of criminals that rejects retributive justification for punishment; does not fall afoul of a plausible prohibition on using people merely as means; and actually works in the real world. The theory can be motivated by free will skepticism. But it can also be supported without reference to the free will issue, since retributivism faces ethical challenges in its own right. In past versions of the account (...) I’ve emphasized the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration. Here I pay special attention to the permissibility and the limits of general deterrence. (shrink)

In this chapter, I consider contemporary consequentialist theories of punishment. Consequentialist theories of punishment look to the consequences of punishment to justify the institution of punishment. Two types of theories fall into this category—teleology and aggregationism. I argue that teleology is implausible as it is based on a problematic assumption about the fundamental value of criminal punishment, and that aggregationism provides a more reasonable alternative. Aggregationism holds that punishment is morally justified because it is an institution that helps society to (...) aggregate important moral values. Several theories fall into this category, including general deterrence theories, specific deterrence theories, and preventionism. I critically evaluate these theories and argue that only one specific deterrence theory, namely, my rights-protection theory, provides the most reasonable consequentialist account of punishment. (shrink)

Bicchieri (The grammar of society: The nature and dynamics of norms, 2006, xi) presents a formal analysis of norms that answers the questions of "when, how, and to what degree" norms affect human behavior in the play of games. The purpose of this paper is to apply a variation of the Bicchieri norms analysis to generate a model of norms-based play of the traditional deterrence game (Zagare and Kilgour, Int Stud Q 37: 1-27, 1993; Morrow, Game theory for (...) political scientists, 1994), the paradigmatic model of conflict initiation in International Relations. The deterrence game is modeled here as a sequential decision problem. As such, our analysis is an adaptation of Bicchieri's game-theoretic formalization of norms to what we will call the norms account of the game. We find that the standard account of the traditional deterrence game is a special case of the norms account of the game. We also show that the adaptation of Bicchieri's analysis of social norms yields new and interesting claims regarding when, how, and to what degree norms operate as a constraint on risk-related behavior in the traditional deterrence game. Moreover, we discuss how the results of the model provide testable propositions of relevance to the role of norms in international interactions. (shrink)

Kant is often regarded as an extreme retributivist, but recently commentators emphasize the importance of deterrence in Kant's basic justification of punishment. Kant's combination of deterrence and retributive elements, however, must be distinguished from others that are less plausible. To interpret Kant as merely adding retributive side-constraints to a basic deterrence aim fails to capture fully the retributive strain in Kant's thought. The basic questions are: who should be punished, how much, in what manner, and why? Kant (...) held that all and only the legally guilty ought to be punished, the legally guilty being also morally guilty, except when the legal requirement was to do something "immoral in itself." This case aside, violations of law also transgress an ethical duty to obey the law. Criminal punishments should be designed to match victims' empirically discernable losses in degree and kind, except when this would be impossible or degrading; courts cannot measure the ultimate moral desert of criminals, which depends on their inner "will." "Punishment" is not a mere disincentive in a "price" system of social control; it has an inherent expressive function, conveying a public message of moral disapproval of the criminal conduct in question. Understanding this together with Kant's basic theory of justice may help to explain his acceptance of ius talionis and condemnation of making exceptions for pragmatic reasons. It also accounts for the retributive "tone" of Kant's remarks, despite his insistence that public courts deal only with "external actions," not overall moral worth and character assessment. Kant wird oft als Vertreter einer extremen Vergeltungstheorie gesehen. Auf der anderen Seite betonen verschiedene Autoren in der letzten Zeit die Abschreckung als grundlegendes Element in Kants Rechtfertigung der Strafe. Ihnen gegenüber muß Kants Verknüpfung von Vergeltung und Abschreckung von anderen ähnlichen Verknüpfungen unterschieden werden, die weniger plausibel sind. Kant so zu interpretieren, als füge er zum Hauptziel der Abschreckung nur einige nebensächliche Elemente der Vergeltung hinzu, verfehlt den Vergeltungsaspekt in Kants Straftheorie. Die grundlegenden Fragen sind: Wer soll bestraft werden, wie schwer, in welcher Weise und warum? Kant war der Ansicht, daß alle, aber auch nur diejenigen bestraft werden sollen, die sich vor dem juridischen Gesetz schuldig gemacht haben. Wer sich vor dem juridischen Gesetz schuldig gemacht hat, hat sich auch moralisch schuldig gemacht, es sei denn, das vom Recht Geforderte sei etwas "an sich selbst Unmoralisches". Sieht man von diesem letzteren Fall einmal ab, dann enthält jede Übertretung des juridischen Gesetzes immer auch eine Verletzung der ethischen Pflicht, dem juridischen Gesetz zu gehorchen. Strafe sollte darauf angelegt sein, den empirisch erkennbaren Verlusten des Opfers nach Art und Ausmaß zu entsprechen, außer, wenn dies unmöglich oder erniedrigend wäre; Gerichte können die tatsächliche moralische Schuld von Verbrechern, die von ihrem inneren "Willen" abhängt, nicht messen. "Strafe" ist kein bloßes Abschreckungsmittel in einem "Preis"-System sozialer Kontrolle. Statt dessen hat sie die ganz wesentliche und ausdrückliche Funktion, die moralische Mißbilligung des jeweiligen verbrecherischen Verhaltens öffentlich zum Ausdruck zu bringen. Diese Interpretation, zusammen mit Kants grundlegender Theorie der Gerechtigkeit, kann helfen zu verstehen, warum Kant das ius talionis akzeptiert hat und warum er Ausnahmen, die aus pragmatischen Gründen gemacht werden, mißbilligt. Sie erklärt auch den "Tonfall" in Kants Äußerungen, der mir seiner Vergeltungstheorie zusammenhängt, auch wenn Kant darauf beharrt, daß staatliche Gerichte sich immer nur mit "äußeren" Handlungen befassen, nicht mit dem moralischen Wert insgesamt oder mit einer Beurteilung des Charakters einer Person. (shrink)

Gauthier claims: (1) a non-maximizing action is rational if it maximized to intend it. If one intended to retaliate in order to deter an attack, (2) retaliation is rational, for it maximized to intend it. I argue that even on sympathetic theories of intentions, actions and choices, (1) is incoherent. But I defend (2) by arguing that an action is rational if it maximizes on preferences it maximized to adopt given one's antecedent preferences. (2) is true because it maximized to (...) adopt preferences on which it maximizes to retaliate. I thus save the theory that rational actions must maximize, and extend it into the rational criticism of preferences. (shrink)

This chapter has two goals. First, I will present an interpretation of Kant’s mature account of punishment, which includes a strong commitment to retributivism. Second, I will sketch a non-retributive, “ideal abolitionist” alternative, which appeals to a version of original position deliberation in which we choose the principles of punishment on the assumption that we are as likely to end up among the punished as we are to end up among those protected by the institution of punishment. This is radical (...) relative to Kant’s mature theory of punishment, but arguably it conforms better to the spirit of Kant’s first Critique remarks on imputation and punishment than his mature theory does. (shrink)

In recent years, scholars have documented the racial disparities of mass incarceration. In this paper we argue that, although retributivism and deterrence theory appear to be race-neutral, in the contemporary U.S. context these seemingly contrary theories function jointly to rationalize racial inequities in the criminal justice system. When people of color are culturally associated with criminality, they are perceived as both irresponsible and hyperresponsible, a paradox that reflects their status as what Charles Mills calls subpersons. Following from this (...) paradox, criminality is understood as an atemporal characteristic of people of color, such that they are conceived as pre-criminals, criminals, or post-criminals. In Frantz Fanon’s account, overdetermination expresses this exclusion of people of color from full agency by capturing them within a rigid, immutable essence, which then controls the social meaning of their actions. The backward-looking quality of retribution and the forward-looking quality of deterrence then treat people of color as more deserving of punishment (and more severe punishment) and as threats to the social order who have to be restrained. We should read the racialization of mass incarceration as a symptom of how precariously people of color participate in the social contract and as reflections of how theories of punishment have been racially deployed. (shrink)