Bennett’s Expressive Justification of Punishment

In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to establish the following claims: (1) punishment is the only symbolically adequate response to a wrongdoing; and (2) punishment is permissible if it is the only symbolically adequate response to a wrongdoing.     

Intergenerational Transmission of Parental Corporal Punishment in China: The Moderating Role of Spouse’s Corporal Punishment

Intergenerational patterns in the transmission of parental corporal punishment and the moderating effects of the spouses’ use of discipline on these patterns in China were examined. A total of 761 father-mother dyads reported on their experience of corporal punishment in childhood and their current use of discipline toward children. Results indicated that corporal punishment was transmitted across generations in China, and the strength of transmission was stronger for mild corporal punishment than for severe corporal punishment. Moreover, fathers’ corporal punishment moderated the transmission of the mothers’ discipline, but the moderating impact of mothers on the fathers’ discipline was absent. These findings suggest that the intergenerational transmission of corporal punishment differs according to severity and is moderated by the spouses’ discipline.     

Is Deterrence Effective? Results of a Meta-Analysis of Punishment

It is supposed that threats of punishment deter potential criminals from committing crimes. The correctness of this theory is, however, questionable. Numerous empirical investigations have come to different results. In this article a meta-analysis is described which tries to find out the reasons for the different findings. First evaluations indicate that the methods of research have an influence on the results and that a possible deterring effect of the penal law can only be covered reasonably with a very differentiating model. Not all criminal acts can be influenced by deterrence. It appears that the most significant deterrent effects can be achieved in cases of minor crime, administrative offences and infringements of informal social norms. In cases of homicide, on the other hand, the meta-analysis does not indicate that the death penalty has a deterrent effect. According to the results, the validity of the deterrence hypothesis must be looked at in a differenciated manner.     

Punishment or therapy? The ethics of sexual offending treatment

Abstract

The claim that sex offender treatment is a form of punishment and as such cannot be covered by traditional ethical codes is a controversial one. It challenges the ethical basis of current practice and compels clinicians to rethink the work they do with sex offenders. In this paper I comment on Bill Glaser's defence of that idea in a challenging and timely paper and David Prescott and Jill Leveson's rejection of his claims. First, I consider briefly the nature of both punishment and treatment and outline Glaser's argument and Prescott and Levenson's rejoinder. I then investigate what a comprehensive argument for either position should look like and finish with a few comments on each paper.     

Mothers’ Attitudes Toward Corporal Punishment of Children in Qazvin-Iran

The aim of this study was to assess mothers’ attitudes toward Corporal Punishment (CP) of children in Iran. A qualitative study was carried out using focus group discussions. Five sessions were held among 42 participants (30 mothers and 12 caregivers). Results indicated that 80% of participants used CP to bring up their children; 70 % did not know the meaning, predisposing factors, and manifestations of child abuse, and more than 50 % did not know the complications resulting from CP and the ways of preventing. Their attitude toward CP was that the use of CP was sometimes necessary to bring up their children while their information about predisposing factors and complications of child abuse might be minimal. The findings have been used in providing an educational package with the topics of parenting skills in order to decrease child abuse that has been resulted by parents.     

Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action—in particular, about how to treat individuals. If this is correct, it seems that they should not overlook one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as ‘proof beyond a reasonable doubt’ is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a many-valued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn’t trials work as ‘ex post facto bets,’ whereby the response that the state is willing to ‘wager’ correlates with the fact finder’s confidence in the defendant’s guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment (consequentialist, retributive, and communicative) necessarily deliver a binary system of verdicts. The work is part of a long-term research project on the comparison between the binary and the many-valued models of the system of criminal verdicts.     

Deserved Delayed Release? The Communicative Theory of Punishment and Indeterminate Prison Sentences

Indeterminate sentencing is a sentencing practice where offenders are sentenced to a range of potential imprisonment terms and where the actual release date is determined later, typically by a parole board. Although indeterminate sentencing is often considered morally problematic from a retributivist perspective, Michael O’Hear has provided an interesting attempt to reconcile indeterminate sentencing with the communicative version of retributivism developed by Antony Duff. O’Hear’s core argument is that delayed release, within the parameters of the indeterminate sentence, can be seen as an appropriate retributivist response to the violations of prison rules. This article highlights several problems in O’Hear’s proposal and argues that the communicative theory is not easily reconciled with his proposed model for indeterminate sentencing. In conclusion, it is argued that proponents of the communicative version of retributivism should resist indeterminate prison sentences.     

A Human Right not to be Punished? Punishment as Derogation of Rights

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law.     

Outlining the Shadow of the Axe—On Restorative Justice and the Use of Trial and Punishment

Most proponents of restorative justice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorative justice processes. Concrete answers have, however, been wanting more often than not. John Braithwaite is arguably the one who has come the closest, and here I systematically reconstruct and critically discuss the rules or principles suggested by him for referring cases back and forth between restorative justice and traditional trial and punishment. I show that we should be sceptical about at least some of the answers provided by Braithwaite, and, thus, that the necessary use of traditional punishment continues to pose a serious challenge to restorative justice, even at its current theoretical best.

Victor’s Justice: The Next Best Moral Theory of Criminal Punishment?

In this essay, I address one methodological aspect of Victor Tadros’s The Ends of Harm – namely, the moral character of the theory of criminal punishment it defends. First, I offer a brief reconstruction of this dimension of the argument, highlighting some of its distinctive strengths while drawing attention to particular inconsistencies. I then argue that Tadros ought to refrain from developing this approach in terms of an overly narrow understanding of the morality of harming as fully unified and reconciled under the lone heading of justice. In a final and most critical section, I offer arguments for why this reconciliatory commitment, further constrained by a misplaced emphasis on corrective justice, generates major problems for his general deterrence account of the core justification of criminal punishment.     

Did Drug Courts Lead to Increased Arrest and Punishment of Minor Drug Offenses?

Drug courts were implemented nationwide during the 1990s to expand alternatives to incarceration for individuals with substance use disorders that were charged with nonviolent felonies or misdemeanors. Although these courts were publicized as a facilitator of treatment and alternative to incarceration, researchers and advocates have suggested that this approach may have unintentionally intensified law enforcement focus on casual drug users and individuals with minor substance dependency. The primary objective of this study was to determine whether there is evidence that drug courts systemically increased the arrest and punishment of misdemeanor drug use and possession by conducting a series of panel data analyses among more than 8,000 city and county jurisdictions while controlling for economic, demographic, and nationwide law enforcement trends. Analyses in this study provide evidence that local police increased their attention toward minor drug offenses in jurisdictions where drug courts were implemented across the nation.     

Arguing Against the Expressive Function of Punishment: Is the Standard Account that Insufficient?

Law and Philosophy - This paper critically appraises the arguments that have been offered for what can be called ‘the expressive function of punishment’. According to this view, what...     

What Do Panel Studies Tell Us About a Deterrent Effect of Capital Punishment? A Critique of the Literature

Objectives

We provide a critical review of empirical research on the deterrent effect of capital punishment that makes use of state and, in some instances, county-level, panel data.

Methods

We present the underlying behavioral model that presumably informs the specification of panel data regressions, outline the typical model specification employed, discuss current norms regarding “best-practice” in the analysis of panel data, and engage in a critical review.

Results

The connection between the theoretical reasoning underlying general deterrence and the regression models typically specified in this literature is tenuous. Many of the papers purporting to find strong effects of the death penalty on state-level murder rates suffer from basic methodological problems: weak instruments, questionable exclusion restrictions, failure to control for obvious factors, and incorrect calculation of standard errors which in turn has led to faulty statistical inference. The lack of variation in the key underlying explanatory variables and the heavy influence exerted by a few observations in state panel data regressions is a fundamental problem for all panel data studies of this question, leading to overwhelming model uncertainty.

Conclusions

We find the recent panel literature on whether there is a deterrent effect of the death penalty to be inconclusive as a whole, and in many cases uninformative. Moreover, we do not see additional methodological tools that are likely to overcome the multiple challenges that face researchers in this domain, including the weak informativeness of the data, a lack of theory on the mechanisms involved, and the likely presence of unobserved confounders.     

A Review of Sex Disparities in the “Key Players” of the Capital Punishment Process: From Defendants to Jurors

Extralegal disparities between defendants sentenced to the death penalty and those who receive life without parole disturb even the most resolute advocates of capital punishment. Extensive bodies of research document extralegal factors influencing death penalty outcomes. Although studies largely focus on race and ethnicity, a growing body of research considers the impact of sex on the capital sentencing process. This paper reviews the extant research on the impact of the sex of the victim, defendant, attorney, juror, and judge on capital case outcomes. Women’s scarcity on death row and a previously documented “female victim effect” condemning male defendants who kill female victims, particularly for those committing crimes of sexual degradation, suggests that death row policies and their implementation chivalrously protect female defendants and victims. Conversely, a limited amount of research documents a “domestic discount,” or greater leniency for death-eligible crimes commonly victimizing women than for those victimizing acquaintances or strangers. Although opinion polls document greater support for the death penalty among men than women, juror sex inconsistently predicts sentencing outcomes in the literature. Minimal research on judge and attorney sex finds female judges more liberal in death penalty sentencing than male judges and inconclusive relationships between attorney sex and adjudication. Findings in the research on sex and death penalty outcomes support the existence of a “sex effect” and inform recommendations for future research to expand the body of literature.     

When Public Protection Becomes Punishment? The UK Use of Civil Measures to Contain the Sex Offender

In keeping with many countries the UK has moved the problem of sexual offending up the political agenda. On the criminal justice side sentences have been increased and supervision periods extended. On the civil side a raft of new measures have been put in place to regulate the behaviour of sex offenders in the interest of community safety and child protection; this paper examines these measures and, in particular takes the sex offender ‘register’ as a case study to show how political imperatives have been brought to bear with little reference to the research or professional views of practitioners in this area. It is contended that under these political pressures, what starts life as a preventive, regulatory measure can easily become a more punitive measure in its own right; as such it may be liable to challenge by those subject to it for failing to fulfil its primary purpose and for straying across a line between the civil and criminal aspects of intervention.     

‘Punishment’ in Non-custodial Sentences: A Critical Analysis

This paper reviews various uses of the concept of ‘punishment’ in relation to non-custodial sentences, including the frequently-made comparison between ‘punishment’ and ‘rehabilitation’. It concludes that ‘punishment’ has no stable meaning in respect of such sentences and, when utilised, often results in non-custodial penalties being found wanting by comparison with imprisonment. It is suggested that all sentences should be regarded as ‘punishments’, and that the creative development of community penalties will best be achieved by working with a threefold conceptualisation of reparation, rehabilitation and incapacitation, set within appropriate boundaries of proportionality.     

Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York's 1995 Reinstatement of Capital Punishment

This article investigates whether the death penalty encouragesdefendants charged with potentially capital crimes to pleadguilty in exchange for lesser sentences. I exploit a naturalexperiment in New York State: the 1995 reinstatement of capitalpunishment, coupled with the public refusal of some prosecutorsto pursue death sentences (N.Y. Penal Law 125.25 [McKinney1975]). Using individual-level data on all felony arrests inthe state between 1985 and 1998, I find the death penalty leadsdefendants to accept plea bargains with harsher terms, but doesnot increase defendants’ overall propensity to plead guilty.A differences-in-differences analysis of a national cross-sectionof homicide defendants confirms these results.     

Kentuckian’s Attitudes on Capital Punishment, 1989–2016

Citizens’ attitudes toward the death penalty have been effected by the availability of life without parole (LWOP). Our analysis focuses upon data from a representative sample of Kentuckians on death penalty attitudes. The factors influencing and related to death penalty support and compared to support for LWOP are considered along with a review of Kentucky survey findings from 1989–2016. The results reveal consistent support for LWOP over the death penalty. Male Kentucky residents with a college education were most likely to support life without parole over capital punishment while male conservatives did not.     

Speaking the City: Punishment,Performance and the Perception of London’s Public Space 1780--1840

The paper contends that in order to understand the role of punishment within the Georgian city we must challenge our own perceptions of space. A key difference I suggest between the Georgian and the modern city was that in the former most of the city space had yet to become functionally specialised. The competing demands placed upon it had not yet been, in the main, resolved by municipal authorities; since they were not, as yet, inclined to think in terms of functional efficiency. Consequently, punishment existed as but one activity, embedded within a general culture of public performance. Execution in particular, depended for its efficacy upon the creation of intense nodes of experience within the realm of the ordinary and found its place within a wider system of communication between the orders based upon the notional equality of violence. It was then, owned by the public in a way that was soon to be repudiated. That repudiation was, I suggest, inextricably connected with a reformation of urban space, which was in part motivated by the challenge to public order posed by popular radicalism and which was substantially driven by the application of principles of subjugation and manipulation derived from liturgy and religious practice. It was, I suggest, the subjugation of public space and the suppression of popular performance that in turn necessitated the re-conceptualisation of one of its elements, that is to say, punishment. Punishment was re-conceptualised by disenfranchising those who had formerly owned it in return for the offer of a new, but largely fictitious, form of social ownership of public space.