Punishment -- Culpable mind -- Culpable action -- Responsibility for harm -- Liability for public welfare offences -- Justification -- Excuse -- Detention after acquittal -- The unity of the penal law.

Capital punishment—the legally authorized killing of a criminal offender by an agent of the state for the commission of a crime—stands in special need of moral justification. This is because execution is a particularly severe punishment. Execution is different in kind from monetary and custodial penalties in an obvious way: execution causes the death of an offender. While fines and incarceration set back some of one’s interests, death eliminates the possibility of setting and pursuing ends. While fines and (...) incarceration narrow one’s routes to happiness, death eliminates its possibility. Not surprisingly, there is much debate about the moral permissibility of capital punishment. This entry maps the terrain of this debate. The first section discusses justifications of the death penalty as they appear in major theories of punishment. The second section surveys moral objections to execution that apply to most justifications. The third addresses procedural criticisms, which do not target the morality of execution so much as the justice of its implementation. (shrink)

The essays in this collection explore, from philosophical and religious perspectives, a variety of moral emotions and their relationship to punishment and condemnation or to decisions to lessen punishment or condemnation.

The question "What can justify criminal punishment ?" becomes especially insistent at times, like our own, of penal crisis, when serious doubts are raised not only about the justice or efficacy of particular modes of punishment, but about the very legitimacy of the whole penal system. Recent theorizing about punishment offers a variety of answers to that question-answers that try to make plausible sense of the idea that punishment is justified as being deserved for past crimes; (...) answers that try to identify some beneficial consequences in terms of which punishment might be justified; as well as abolitionist answers telling us that we should seek to abolish, rather than to justify, criminal punishment. This book begins with a critical survey of recent trends in penal theory, but goes on to develop an original account (based on Duff's earlier Trials and Punishments) of criminal punishment as a mode of moral communication, aimed at inducing repentance, reform, and reconciliation through reparation-an account that undercuts the traditional controversies between consequentialist and retributivist penal theories, and that shows how abolitionist concerns can properly be met by a system of communicative punishments. In developing this account, Duff articulates the "liberal communitarian" conception of political society (and of the role of the criminal law) on which it depends; he discusses the meaning and role of different modes of punishment, showing how they can constitute appropriate modes of moral communication between political community and its citizens; and he identifies the essential preconditions for the justice of punishment as thus conceived-preconditions whose non-satisfaction makes our own system of criminal punishment morally problematic. Punishment, Communication, and Community offers no easy answers, but provides a rich and ambitious ideal of what criminal punishment could be-an ideal of what criminal punishment cold be-and ideal that challenges existing penal theories as well as our existing penal theories as well as our existing penal practices. (shrink)

This classic collection of essays, first published in 1968, represents H.L.A. Hart's landmark contribution to the philosophy of criminal responsibility and punishment. Unavailable for ten years, this new edition reproduces the original text, adding a new critical introduction by John Gardner, a leading contemporary criminal law theorist.

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)

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)

Unlike other treatments of legal punishment, this book takes both an external approach, asking why we punish at all, and an internal approach, considering issues faced by those 'inside' the practice: For what actions should we punish? Should we allow plea-bargaining? the insanity defense? How should sentencing be determined? The two approaches are connected: To decide whether to punish someone who is 'insane', or who cops a plea, we need to ask whether doing so is consistent with our theory (...) of why we punish at all. In connecting theory and practice, I draw on a broad range of thought: radical criticisms of punishment (Nietzsche, Foucault, Marxists), sociological theories (Durkheim, Girard), various philosophical traditions (utilitarian, German Idealism, modern liberalism), and the 'law and economics' movement. Against radical critics who argue we shouldn't punish at all, but who then leave us without an alternative for dealing with crime, I defend the practice, offering a version of retribution (which I distinguish from revenge and non-consequential theories) that holds we punish not to deter, reform, or otherwise augment social utility, but to mete out just deserts, vindicate right, and express society's condemnation of actions it deems blameworthy. I argue that this theory best accounts for how we do punish, and then use this theory to provide immanent criticism of certain features of our actual practice that don't accord with the retributive principle. (shrink)

Retributive theories of punishment argue that punishing a criminal for a crime she committed is sufficient reason for a justified and morally permissible punishment. But what about when the state gets lucky in its decision to punish? I argue that retributive theories of punishment are subject to “Gettier” style cases from epistemology. Such cases demonstrate that the state needs more than to just get lucky, and as these retributive theories of punishment stand, there is no anti-luck (...) condition. I’ll argue that Gettier-style cases demonstrate an impermissible instance of punishment, even though they meet the conditions of retributive theories of punishment. Retributive theories are, therefore, too weak. The safety condition from epistemology provides the anti-luck condition needed for permissible punishment. I argue that two forms of retributivism, rights-forfeiture and what I call standard retributivism, are both subject to Gettier-style cases. Unlike the literature on standards of proof, this paper argues that safety is a condition on punishment itself, i.e., in all nearby possible worlds, the accuser must correctly accuse the convicted for the crime they actually committed. (shrink)

Much has been written about recidivist punishments, particularly within the area of criminology. However there is a notorious lack of penal philosophical reflection on this issue. This book attempts to fill that gap by presenting the philosopher’s view on this matter as a way of furthering the debate on recidivist punishments.

Female genital alteration is any cutting, removal or destruction of any part of the external female genitalia. Various FGA practices are common throughout the world. While most frequent in Africa and Asia, transglobal migration has brought ritual FGA to Western nations. All forms of FGA are generally considered undesirable for medical and ethical reasons when performed on minors. One ritual FGA procedure is the vulvar nick. This is a small laceration to the vulva that does not cause morphological changes. Besides (...) being performed as a primary ritual procedure it has been proposed as a substitute for more extensive forms of FGA. Measures advocated or taken to reduce the burden of FGA can be punitive or non-punitive. Even if it is unethical to perform VN, we argue that it also is unethical to attempt to suppress it through punishment. First, punishment of VN is likely to cause more harm than good overall, even to those ostensibly being protected. Second, punishment is likely to exceed legitimate retributive ends. We do not argue in favor of performing VN. Rather, we argue that non-punitive strategies such as education and harm reduction should be employed. (shrink)

Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.

In this paper we explore the relationship between forgiving and punishment. We set out a number of arguments for the claim that if one forgives a wrongdoer, one should not punish her. We then argue that none of these arguments is persuasive. We conclude by reflecting on the possibility of institutional forgiveness in the criminal justice setting and on the differences between forgiveness and acts of mercy.

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)

Both proponents and opponents of capital punishment largely agree that death is the most severe punishment that societies should consider imposing on offenders. This chapter considers how (if at all) this ‘Ultimate Thesis’ can be vindicated. Appeals to the irrevocability of death, the badness of being executed, the badness of death, or the harsh condemnation societies express by sentencing offenders to death do not succeed in vindicating this Thesis, and in particular, fail to show that capital punishment (...) is more severe than the most likely alternative punishment offenders would suffer, namely, lifelong incarceration. The most plausible vindication of the Ultimate Thesis instead resides in how being condemned to death alters a person’s psychological relation to death. Our ordinary tendencies toward “death denial” diminish the terror that our awareness of death can otherwise induce in us, thereby enabling us to pursue worthwhile lives despite knowing of death’s inevitability. But condemned individuals are continually compelled to confront both the reality and specific circumstances of their own deaths and so do not enjoy the protective psychic shield that death denial provides us. This ‘relational’ rationale does not obviously succeed in proving the Ultimate Thesis, but if the Thesis is true, this rationale is essential to its justification. (shrink)

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)

Nathan Hanna has recently addressed a claim central to my 2013 article ‘Must Punishment Be Intended to Cause Suffering’ and to the second chapter of my 2016 book An Expressive Theory of Punishment: namely, that punishment need not involve an intention to cause suffering. -/- Hanna defends what he calls the ‘Aim To Harm Requirement’ (AHR), which he formulates as follows. AHR: ‘an agent punishes a subject only if the agent intends to harm the subject’ (Hanna 2017 (...) p969). I’ll try to show in this note that Hanna’s latest attempts to defend AHR fail. I’ll start by setting out my own view, drawing attention to one significant, but perhaps understandable, misstatement of Hanna’s. I’ll then discuss two alleged counter-examples that Hanna presents to my view, and show that they both fail in their own terms. I’ll also argue that, given assumptions that Hanna is willing to make a scenario closely related to one that Hanna presents counts against AHR. I’ll then discuss how significant it would be if these counter-examples were successful. My view is that it wouldn’t matter much, and that anyone attracted to abolitionism should agree. I’ll conclude with a brief discussion of Hart, which may be of interest to enthusiasts and Hart scholars. (shrink)

Focusing democratic theory on the pressing issue of punishment, Punishment, Participatory Democracy, and the Jury argues for participatory institutional designs as antidotes to the American penal state. Citizen action in institutions like the jury and restorative justice programs can foster the attunement, reflectiveness, and full-bodied communication needed as foundations for widespread civic responsibility for criminal justice.

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the (...) world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations. (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)

Proponents of punishing states often claim that such punishment would not distribute to members of the state, and so it would not subject innocent citizens – those who did not participate in the crimes, or dissented, or even were among the victims – to guilt by association. This essay examines three features of state punishment that might be said not to distribute to citizens: it is burdensome, it is intentionally so, and it expresses social condemnation. Ultimately, I contend (...) that when a state is punished, the burdens do distribute to citizens as intended, condemning burdens – that is, as punishment. Thus the nondistribution of punishment thesis fails as a response to the guilt-by-association objection. (shrink)

Many philosophers have claimed that the folk endorse moral universalism. Some have taken the folk view to support moral universalism; others have taken the folk view to reflect a deep confusion. And while some empirical evidence supports the claim that the folk endorse moral universalism, this work has uncovered intra-domain differences in folk judgments of moral universalism. In light of all this, our question is: why do the folk endorse moral universalism? Our hypothesis is that folk judgments of moral universalism (...) are generated in part by a desire to punish. We present evidence supporting this across three studies. On the basis of this, we argue for a debunking explanation of folk judgments of moral universalism. Our results not only further our understanding of the psychological processes underpinning folk judgments of moral universalism. They also bear on philosophical discussions of folk meta-ethics. (shrink)

How should we punish criminal offenders? One prima facie attractive punishment is administering a mandatory neurointervention—interventions that exert a physical, chemical or biological effect on the brain in order to diminish the likelihood of some forms of criminal offending. While testosterone-lowering drugs have long been used in European and US jurisdictions on sex offenders, it has been suggested that advances in neuroscience raise the possibility of treating a broader range of offenders in the future. Neurointerventions could be a cheaper, (...) and more effective method of punishment. They could also be more humane. Nevertheless, in this paper we provide an argument against the use of mandatory neurointerventions on offenders. We argue that neurointerventions inflict a significant harm on an offender that render them a morally objectionable form of punishment in a respect that incarceration is not. Namely, it constitutes an objectionable interference with the offender’s mental states. However, it might be thought that incarceration also involves an equally objectionable interference with the offender’s mental states. We show that even if it were the case that the offender is harmed to the same extent in the same respect, it does not follow that the harms are morally equivalent. We argue that if one holds that intended harm is more difficult to justify than harm that is unintended but merely foreseen, this means neurointerventions could be morally objectionable in a significant respect that incarceration is not. (shrink)

This book addresses the retributive and "orthodox subjectivist" theories that dominate criminal justice theory alongside recent "revisionist" and "postmodern" approaches. Norrie argues that all these approaches, together with their faults and contradictions, stem from their orientation to themes in Kantian moral philosophy. He explores an alternative relational or dialectical approach; examines the work of Ashworth, Duff, Fletcher, Moore, Smith, and Williams; and considers key doctrinal issues.

This philosophical work on punishment includes coverage of retributivisms, moral education and reform, consequentialism and rights, sentencing and how to make the punishment fit the crime, abolitionism and sociological perspectives.

Punishment is a persvasive feature of social life. Individuals who break laws in our societies may be imprisoned or, in some contexts, put to death. But why should individuals be punished? Are there good reasons for punishment? Or does the practice of punishment merely gratify feelings of revenge? If we regard punishment as a deterrent, are we committed to victimizing the innocent in order to deter? In this classic and recently enlarged book, Ted Honderich offers a (...) wide-ranging analysis of the nature of punishment and scrutinizes the arguments for and against it. Already established as the principal introductory text to the philosophy of punishment, the republication of this book in paperback will be welcomed by students and scholars in moral and political philosophy, jurisprudence and criminology. (shrink)

Can an agent's intelligence level be negative? We extend the Legg-Hutter agent-environment framework to include punishments and argue for an affirmative answer to that question. We show that if the background encodings and Universal Turing Machine (UTM) admit certain Kolmogorov complexity symmetries, then the resulting Legg-Hutter intelligence measure is symmetric about the origin. In particular, this implies reward-ignoring agents have Legg-Hutter intelligence 0 according to such UTMs.

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.” This Article seeks to explore cases like that—cases of “natural punishment.” Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her. The Article proposes that U.S. courts follow their peers and (...) recognize natural punishment as genuine punishment for legal, specifically constitutional, purposes. Were U.S. courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction if a natural punishment has occurred or foreseeably will occur. A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States. The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment by distinguishing it from nearby notions and dispelling any association with supernatural ideas; second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings. -/- As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served. The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial. The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence. Seeing the time in detention as an instance of natural punishment resolves the Mystery. (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)

In Punishment and the History of Political Philosophy, Arthur Shuster offers an insightful study of punishment in the works of Plato, Hobbes, Montesquieu, Beccaria, Kant, and Foucault.

An exploration of RA Duff's 'communicative theory of punishment' in contexts of deep legal and cultural pluralism.

Understanding cooperation and punishment in small-scale societies is crucial for explaining the origins of human cooperation. We studied warfare among the Turkana, a politically uncentralized, egalitarian, nomadic pastoral society in East Africa. Based on a representative sample of 88 recent raids, we show that the Turkana sustain costly cooperation in combat at a remarkably large scale, at least in part, through punishment of free-riders. Raiding parties comprised several hundred warriors and participants are not kin or day-to-day interactants. Warriors (...) incur substantial risk of death and produce collective benefits. Cowardice and desertions occur. (shrink)

Much has been written about recidivist punishments, particularly within the area of criminology. However there is a notorious lack of penal philosophical reflection on this issue. This book attempts to fill that gap by presenting the philosopher’s view on this matter as a way of furthering the debate on recidivist punishments.

Why is the Catholic Church against the death penalty? This second edition of Brugger’s classic work _Capital Punishment and Roman Catholic Moral Tradition_ traces the doctrinal path the Church has taken over the centuries to its present position as the world’s largest and most outspoken opponent of capital punishment. The pontificate of John Paul II marked a watershed in Catholic thinking. The pope taught that the death penalty is and can only be rightly assessed as a form of (...) self-defense. But what does this mean? What are its implications for the Church’s traditional retribution-based model of lethal punishment? How does it square with what the Church has historically taught? Brugger argues that the implications of this historic turn have yet to be fully understood. In his new preface, Brugger examines the contribution of the great Polish pope’s closest collaborator and successor in the Chair of Peter, Pope Benedict XVI, to Catholic thinking on the death penalty. He argues that Pope Benedict maintained the doctrinal status quo of his predecessor’s teaching on capital punishment as self-defense, with detectable points of reluctance to draw attention to nontraditional implications of that teaching. (shrink)

The age-old debate about what constitutes just punishment has become deadlocked. Retributivists continue to privilege desert over all else, and consequentialists continue to privilege punishment's expected positive consequences, such as deterrence or rehabilitation, over all else. In this important intervention into the debate, Leo Zaibert argues that despite some obvious differences, these traditional positions are structurally very similar, and that the deadlock between them stems from the fact they both oversimplify the problem of punishment. Proponents of these (...) positions pay insufficient attention to the conflicts of values that punishment, even when justified, generates. Mobilizing recent developments in moral philosophy, Zaibert offers a properly pluralistic justification of punishment that is necessarily more complex than its traditional counterparts. An understanding of this complexity should promote a more cautious approach to inflicting punishment on individual wrongdoers and to developing punitive policies and institutions. (shrink)

The purpose of this paper is to provide a justification of punishment which can be endorsed by free will skeptics, and which can also be defended against the "using persons as mere means" objection. Free will skeptics must reject retributivism, that is, the view that punishment is just because criminals deserve to suffer based on their actions. Retributivists often claim that theirs is the only justification on which punishment is constrained by desert, and suppose that non-retributive justifications (...) must therefore endorse treating the people punished as mere means to social ends. Retributivists typically presuppose a monolithic conception of desert: they assume that action-based desert is the only kind of desert. But there are also personhood-based desert claims, that is, desert claims which depend not on facts about our actions, but instead on the more abstract fact that we are persons. Since personhood-based desert claims do not depend on facts about our actions, they do not depend on moral responsibility, so free will skeptics can appeal to them just as well as retributivists. What people deserve based on the mere fact of their personhood is to be treated as they would rationally consent to be treated if all they had in view was the mere fact of their personhood. We can work out the implications of this view for punishment by developing a hypothetical consent justification in which we select principles of punishment in the Rawlsian original position, so long as we are careful not to smuggle in the retributivist assumption that it is under our control whether we end up as criminals or as law-abiding citizens once we raise the veil of ignorance. (shrink)

Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.

It has recently been suggested that the fact that punishment involves an intention to cause suffering undermines expressive justifications of punishment. I argue that while punishment must involve harsh treatment, harsh treatment need not involve an intention to cause suffering. Expressivists should adopt this conception of harsh treatment.

Punishment and Shame: A Philosophical Study reveals the economic and religious underpinnings to modern notions of crime and punishment. Contra Michel Foucault's claim that modern penal practices witness a revolution in Western moral sensibilities, awakened by Enlightenment ideals, Hamblet shows that punishment practices in the West grew out of Protestant moralizations, capitalist greed, and the need for a cheap labor pool.

Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of punishment must pay (...) close attention to the unintentional burdens of punishment. In two very important contexts — punishment measurement and justification — we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete. -/- [This paper has been published under a Creative Commons Attribution-NonCommercial-ShareAlike license.]. (shrink)

People convicted of crimes are subject to a criminal sentence, but they also face a host of other restrictive legal measures: Some are denied access to jobs, housing, welfare, the vote, or other goods. Some may be deported, may be subjected to continued detention, or may have their criminal records made publicly accessible. These measures are often more burdensome than the formal sentence itself. -/- In Beyond Punishment?, Zachary Hoskins offers a philosophical examination of these burdensome legal measures, called (...) collateral legal consequences. Drawing on resources in moral, legal, and political philosophy, Hoskins analyzes the various kinds of collateral consequences imposed in different legal systems and the important moral challenges they raise. Can collateral legal consequences ever be justified as forms of criminal punishment or as civil measures? Hoskins contends that, considered as forms of punishment, such restrictions should be constrained by considerations of proportionality and offender reform. He also argues that they may in a limited range of cases be permissible as risk-reductive civil measures. Whether considered as criminal punishment or civil measures, however, collateral legal consequences are justifiable in a far narrower range of cases than we find in current legal practice. -/- Considering just how pervasive collateral legal consequences have become and their dramatic effects on offenders' lives, Beyond Punishment? sheds valuable light on whether these restrictive measures are ever morally justified. (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)

In this paper, I discuss a distinctively non-paradigmatic instance of punishment: the punishment of non-citizens. I shall argue that the punishment of non-citizens presents considerable difficulties for one currently popular account of criminal punishment: Antony Duff’s communicative expressive theory of punishment. Duff presents his theory explicitly as an account of the punishment of citizens - and as I shall argue, this is not merely an incidental feature of his account. However, it is plausible that (...) a general account of the criminal law of the kind of idealized state that Duff focusses on will need to say something about how that law deals with non-citizens. In particular, I claim, it will need to provide a justification for punishing them. Because Duff's account says nothing about the punishment of non-citizens, it cannot do so. Furthermore, although Duff's more recent suggestion that non-citizens should be thought of as being guests in the state on whose territory they are present may provide for an account of their criminalization, it cannot easily be extended into an account that provides a justification for their punishment. (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)

It is well documented that the effects of legal punishment tend to drift to the family members, friends, and larger communities of convicted offenders. Instead of conceiving of punishment drift as incidental to legal punishment, or as merely foreseen but not intended by state authorities and thus permissible, I argue that efforts ought to be undertaken to limit or ameliorate it. Failure to confine punishment drift comes perilously close to punishment of the innocent and is (...) at odds with other legal doctrines and broader penal practices that hold offenders, and offenders alone, responsible for their crimes. Numerous arguments urging tolerance of punishment drift, or more assertively defending it, are examined and found wanting. (shrink)

This volume collects essays by leading criminal law theorists to explore the principal themes in his work.

As recorded in the Analects, Kongzi (Confucius) held that using punishment to influence ordinary citizens will do little to develop a sense of shame (chi 恥) in them. This term is usually taken to refer to a sense of shame described here as “ autonomous,” understood as a predisposition to feel ashamed when one does something wrong because it seems wrong to oneself, and not because others regard it as wrong or shameful. Historically, Confucian philosophers have thought a great (...) deal about the habits and character traits necessary for someone to have a sense of shame that is truly autonomous. The article looks at their views on this matter and shows how they help to articulate the hypothesis that coercive punishments undermine or work at cross-purposes with the cultivation of an autonomous sense of shame. It then uses this analysis to explicate the proposal that governing people by cultivating a sense of shame is to be preferred to governing by threat of punishment. It concludes by weighing its merits as a view about effective governance, observing that its strength and plausibility depends on whether we take the threat of punishment to be direct or indirect. (shrink)