Search Results

Punishments require clear and convincing justification—by definition, they impose unpleasant and usually harmful consequences on offenders, and they also consume scarce public resources. Moreover, purposes of punishment often conflict in particular cases. Hybrid (or “mixed”) punishment theories seek to reconcile these conflicts while recognizing multiple punishment justifications. This chapter summarizes and critiques hybrid theories proposed by other writers, as well as nonhybrid theories (pure retributivism or utilitarianism). Particular attention is given to the more developed hybrid models proposed by Norval Morris, Paul Robinson, and Andrew von Hirsch. The chapter concludes that limiting retributivism—with the modifications and additions embodied in this book’s proposed model—is superior to other hybrid and nonhybrid models, all of which have major flaws both in theory and in practice. But there is a substantial degree of consensus on many points, and most of the proposed model’s sentencing principles have been endorsed by previous writers.

This chapter speculates that contemporary understandings of retribution have come to see it either as a good, or as a deontological side constraint on action, rather than as an affirmative deontological duty, as earlier versions saw it (or purported to see it). Yet if retribution is formulated as a good or a constraint, it loses its centrality as a basis for punishment: under such a view, retribution may be one consideration, among others, favoring (or opposing) punishment, but it cannot justify punishment except in a very narrow sense. Accordingly, characterizing retributivism as a “theory of punishment,” which was never entirely apt, now seems untenable. As an alternative, the chapter favors an overtly pluralistic scheme in which various principled and practical considerations, including retributivist considerations, may inform punishment policy at both the systemic and the individual level.

Amongst contemporary theorists, the most widespread interpretation of Hegel's theory of punishment is that it is a retributivist theory of annulment, where punishments cancel the performance of crimes. The theory is retributivist because it holds both that (a) criminals can be punished only if punishment is deserved; and (b) the value of punishment must be proportional to the nature of its corresponding crime, rather than to any consequentialist considerations. This chapter begins with an examination of ‘abstract right’ and the role of punishment in this section of the Philosophy of Right, and then considers how the role of punishment changes later in the Philosophy of Right. It argues that Hegel's later treatment of punishment may endorse different punishments whose function may not always be retributivist, and explores how this view coheres with Hegel's earlier treatment. Thus, the chapter rejects the view both that Hegel's most substantive treatment of punishment is contained in ‘abstract right’ and that his full treatment has only a retributivist function and is not open to additional functions, such as deterrence and rehabilitation.

Many jurisdictions punish attempts less than completed crimes. Deniers of “moral luck” especially have thought this unfair. Under a plausible expressivist theory of punishment there is “sanction luck”, even if there is no “censure luck”. Even with no difference in exercises of control, different sanctions can be deserved, even if different degrees of censure are not, since the same degree of censure can be expressed by different sanctions: other expressive functions can be served by sanction, such as expression of the value of the victim's loss. So, there need be no unfairness in giving a lesser sentence to an attempt. This view is developed through rejecting the claim that it is unfair to sentence last act attempters and completers differently since they have done the same thing. It can be fair, it is argued, but it is often unfair to sentence last act attempters and non-last act attempters differently.

This chapter shows how drug court seems, in some respects, a more communicatively appropriate response to drug offenses than the conventional penal alternatives (simple incarceration and straight probation). It also identifies aspects of a drug court that seem quite communicatively problematic. The chapter is organized as follows. Section I summarizes key elements of Duff's communicative theory of punishment. Section II lays out some common design features of drug courts. Section III considers whether and to what extent drug courts respond to crime in a communicatively attractive fashion. Initially it is assumed that the crime put forward is one of simple drug possession. Then the suitability of the drug court for drug-trafficking offenders and drug-dependent nondrug offenders is considered. To the extent that drug courts are communicatively richer than conventional dispositions, they may be seen as part of a broader trend in criminal justice connected to restorative justice and other increasingly popular innovations. The chapter concludes with a brief discussion of whether the apparent public interest in communicatively richer punishment may bode well for diminished reliance on incarceration, which seems a communicatively impoverished and inappropriate response to most crime.

This chapter begins with an analysis of decision-makers' frames: how they make sense of the problems they encounter, what they define as relevant, and how they reason about them. Framing is a prerequisite to deciding whether, how, and why to act. There is discussion of enforcement officials' theorizing about why people comply with or violate the law. The ‘theories’ of rule breaking ‘explain’ non-compliance and suggest what form of enforcement or sanction may be appropriate. Enforcers believe compliance generally either to be principled, a matter of instrumental calculation, of self-interest, or the result of customary behaviour. Non-compliance is regarded as a result of self-interested calculation, organizational mismanagement, or occupational culture. In creating these theories, enforcers rely on a conception of business character influenced by firm size, type of business, enforcement history, or the character of the business contact.

Dual Penal State is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet the continuing challenge of legitimating state penal power: the violent violation of the autonomy of the very persons upon whose autonomy the legitimacy of state power supposedly rests in a state under the rule of law (Rechtsstaat). Part I focuses primarily on German criminal law, and German criminal law science, with regular comparative glances beyond the German penal system. Chapter 2 highlights several key rhetorical strategies in modern criminal law doctrine that divert attention from the troubling—and possibly irresolvable—paradox of state punishment in a modern liberal democracy.

In criminal law theorizing, a theory of criminalization has played only a marginal role compared to many other issues, such as the theory of punishment. Why is this the case? Do we need a specific theory of criminalization and if so, for what purpose? And on what premises should such a theory stand? This chapter argues that if we understand the theory of criminalization in a broad sense, more progress has already been made than might be thought. Continental criminal law theorizing has significant resources for thinking about what and how to criminalize. Criminal law theorizing, for two centuries now, has been informed by philosophical points of view, but equally important have been the practice of codification, the practice of law reform, and constitutional debates concerning the proper scope of the criminal law. The distinction between genuine criminal law and police law as well as administrative law has received significant attention. All of this has left its traces in our understanding of the principles guiding criminalization.

Philosophers tend to think of the problem of punishment as being the problem of demonstrating that it is or can be justified. Settling the question of whether punishment is justified as a practice, however, does not answer the practical questions of when and how punishment is justified in particular cases, nor does it tell us whether some other response to lawbreaking is preferable or complementary to punishment. There are, in fact, a variety of problems associated with punishment, and I attend to four of them in this chapter in order to demonstrate the reach and power of fair-play theory. Two of them—the problems of excessive incarceration and of voting rights for felons—are much-discussed matters in recent years. The other two—the problems of assessing punishment for recidivists and of what role restitution should play in the sentencing of offenders—are also matters of both practical and philosophical interest.

This chapter explores The question of whether prison inmates suffering from attention-deficit/hyperactivity disorder (ADHD) should be administered a psychopharmacological intervention (methylphenidate) for their condition. The theoretical starting point for the discussion is the communicative theory of punishment, which understands criminal punishment as a form of secular penance. Viewed through the lens of the communicative theory, the provision of pharmacological treatment to offenders with ADHD need not necessarily be conceived of as an alternative to punishment, but as an aid to achieving the penological ends of secular penance. The criminal justice system punishes offenders who commit offences prohibited under the criminal law, and the hope is that this will lead them to become repentant, to start reforming themselves, and to reconcile with those whom they wronged. However, the neurophysiological obstacles associated with severe ADHD present serious obstacles to achieving repentance and self-reform. As a remedy, the chapter proposes that to achieve those aims, criminal offenders diagnosed with ADHD should be offered the option to undergo pharmacological treatment. This proposal is defended from the objection that secular penance made possible by methylphenidate is less authentic.

This chapter examines normative theories of punishment. The two familiar approaches, utilitarian and retributive, seem incompatible, but actually address different questions. Utilitarianism addresses the question of why and when the state should afflict offenders with suffering: because suffering can be outweighed by greater suffering prevented. Deterrence justifies swift, certain, and moderate sanctions, and does not justify the very severe sanctions now inflicted. Retributivism, concerned with equalizing dignity, addresses the question of why and when the state should denounce offenders as blameworthy. Any persuasive retributive theory views punishment as just one means of equalizing dignity. Retribution cannot justify punishment in an unequal society. The Supreme Court’s application of theories of punishment to the Eighth Amendment has often been contradictory. For example, it justifies capital punishment on the basis of deterrence and desert, but is unwilling to see it applied regularly enough to deter or fairly enough to be deserved.

The central characteristic of responsibility as developed by Duff is the ‘triadic relational concept’ consisting of a relation between an agent A who is responsible for something X to somebody S and in virtue of being a member of a unit of responsibility, e.g., a neighbourhood or a state. This chapter rejects several justifications for Duff's theory of responsibility and justifies the triadic relational structure of responsibility in terms of self governance. Under this justification, individuals conduct their lives in different spheres. Each sphere is governed by a community that engages in an enterprise consisting of a thick set of norms and practices. It is important that it is primarily members of the community who ultimately determine the content of these norms and practices. By conforming to the dictates of the triadic relational structure one guards the rights of members (of the unit of responsibility) to govern themselves.

Despite its considerable fame and influence, Hart’s Punishment and Responsibility is not an especially innovative work. Still, it played a crucial role in the development of criminal law theory by integrating the received wisdom of the bien pensant utilitarian intelligentsia of mid-century Oxford into a coherent framework for future work. For several decades, much of criminal law theory worked in the shadow of Hart’s influence. But in recent years, a revival of retributivism and legal moralism has eclipsed Hart’s account. And even more recently, criminal law theory is starting to move even further away from Hart’s position, turning to questions of political theory and constitutional theory at the foundations of the state’s legitimate role as guardian of criminal justice.

PJA Feuerbach is still considered a founding father of modern criminal law science. His Textbook on penal law is a classic. One of his lasting contributions is the insistence on a strictly rational justification of criminal punishment. He proposed a deterrence-based theory that shifts the focus from the conviction of offenders and the execution of sanctions towards the statutory threat. Discussing the criticism of Feuerbach’s punishment theory, the chapter concludes that punishment cannot be justified by referring to just one notion such as deterrence. The chapter analyzes Feuerbach’s elaboration of the principle of nulla poena sine lege, distinguishing the prohibition of retroactive criminal laws and Feuerbach’s insistence on the existence of statutory laws. A third achievement of the Textbook is the introduction of a framework for criminalization. Feuerbach defines in a general way what kind of conduct can be called a crime: a crime consists in the violation of another person’s rights...

This chapter examines letter writing as a formal, internally produced limit to the erosion of prisoners’ First Amendment right to expression. It details how mass incarceration and its administration of various types of civil death, runs up against an epistolary expressivity that is neither extinguished nor sheltered by law, but is the material ground of desire at work in reading the law both to the letter and for its letters. The chapter argues that the fantasy of colorblindness in this context is a territorializing practice of reducing these plural forms of the letter in the law to a mass scene of writing. The chapter concludes with a reading of the agency of a prisoner’s letter in Cheryl Dunye’s film, Stranger Inside.

The idea that the severity of punishments ought to be proportionate to the seriousness of crimes is an established and central feature of much of the literature on the justification of punishment of the last several decades. Yet in practice, sentencing is an inexact science, and the project of developing metrics of both penal severity and crime seriousness is burdened by substantial theoretical difficulties. The focus on an individualistic, moralized account of criminal law exacerbates these issues both by making proportionality more central than it needs to be in penal theory and by making the metrics harder to determine. An alternative account can be premised on a view of criminal law and punishment as an institution of public policy addressed to the need to sustain the fragile achievement of the modern liberal democratic state. The questions of metrics and of proportionality appear somewhat differently in such a political theory and in ways that allow us to overcome some of the difficulties that afflict current theorizing about punishment.

Penal severity in the modern state is best understood in terms of right abridgment, which must be kept parsimonious, proportionate, and nondegrading if sanctions are to remain consistent with respect for the basic moral rights of individuals that is required of everyone, including state officials. Although there is disagreement about which basic moral rights individuals possess, there is enough overlap among the competing views to yield a consensus account of penal severity. For the most part, the state need not and should not be concerned with the ways in which penal sanctions are subjectively experienced by offenders. The modern state is supposed to keep its distance from the internal lives of individuals, instead securing for them the rights that make it possible for them to carve out and live lives of their own choosing. As long as individuals have fair notice of the defensible penal sanctions that await them if they violate the criminal law, they should be understood to have risked the aversive experiences that await them upon criminal conviction.