Should We Aim for a Unified and Coherent Theory of Punishment?

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict.     

A Retributive Argument Against Punishment

This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to be an argument only against retributive justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments.     

Innocence Lost: A Problem for Punishment as Duty

Constrained instrumentalist theories of punishment – those that seek to justify punishment by its good effects, but limit its scope – are an attractive alternative to pure retributivism or utilitarianism. One way in which we may be able to limit the scope of instrumental punishment is by justifying punishment through the concept of duty. This strategy is most clearly pursued in Victor Tadros’ influential ‘Duty View’ of punishment. In this paper, I show that the Duty View as it stands cannot find any moral distinction between the permissible punishment of the guilty and the permissible punishment of the innocent in extreme circumstances, therefore undermining one the key pillars of its intuitive appeal. I canvass several ways to respond to this problem, arguing that a rights (or claims) forfeiture theory which employs the distinction between rights forfeiture and rights infringement (or claims forfeiture and infringement) is the best solution.     

The justification of punishment and the justification of political authority

Philosophical accounts of punishment are primarily concerned with punishment by the (or: a) state. More specifically, they attempt to explain why the (a) state may justifiably penalize those who are judged to violate its laws and the conditions under which it is entitled to do so. But any full account of these matters must surely be grounded in an account of the nature and purpose of the state and the justification of state authority. Because they are not so grounded, deterrence and retributive theories are incomplete as they are typically formulated. The intuitions behind these theories can be satisfied in a variety of complete theories, i.e., theories that understand the justification of punishment in relation to the justification of state authority. A consequence of this is that at least some of the intuitions underlying deterrence and retributive theories can be satisfied at the same time by a given theory.     

Penal Disenfranchisement

This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners (or serious offenders) is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the voting ban is essential part of the justified punishment of serious offenders. These arguments have in common the feature that they attempt to articulate the sense in which rights imply responsibilities, particularly that voting rights should be conditional on one’s having met one’s civic responsibilities. I argue that the only interpretation of this view that could justify prisoner disenfranchisement is that which thinks of disenfranchisement as fair and deserved retributive punishment for crime. Against widespread opposition to, and confusion about, the importance of retributive punishment, I offer a brief defence. However, I conclude that even if legitimate retributive purposes could in principle justify prisoner disenfranchisement, the significance of disenfranchisement is such that it should be reserved for the most serious crimes.     

Rethinking the restorative–retributive dichotomy: is reconciliation possible?

While the use of restorative justice within Western criminal justice systems continues to grow, its philosophical foundations remain uncertain. This inconclusiveness impacts directly upon the theoretical discussion of restorative justice and its relationship with existing paradigms of punishment, precipitating debate regarding its ability to integrate within justice systems governed by retributive paradigms. Specifically, this ambiguity of definition renders debate regarding the extent to which restorative justice philosophy exists as an alternative punishment or an alternative to punishment, and its existence as complementary or axiomatic to retributive justice unresolved. The philosophy of restorative justice, identifying its central features and addressing those previous attempts of contrasting restorative justice with the prevailing paradigm of retribution is explored here. However, it is suggested that aspirations of reconciling restorative justice philosophy with the retributive paradigm will be ultimately unsuccessful, due to the persistent latent ambiguity regarding the central foundation upon which restorative justice philosophy is built. Such concerns are also present when seeking to affirm the continued opposition of retributive and restorative justice.     

Responding to retributivists: a restorative justice rejoinder to the big three Desert theories

Retributive theories of legal punishment fail to justify the imprisonment of convicted offenders. There are three prominent retributive theories that attempt this: Fair Play theory, Moral Communication theory, and Intuitive Desert theory. Fair Play retributivists seek to imprison offenders in order to re-balance the distribution of benefits and burdens, which is upset by criminal offences. Moral Communication retributivists seek to imprison offenders as a means of communicating society’s condemnation of criminality. Intuitive Desert retributivists seek to imprison offenders because it is a deserved response to wrongdoing (the supporting evidence is our intuitive reactions to criminality). These theories are critiqued and attention is drawn to the superiority of certain restorative justice values and practices.     

慎行缓起诉制度

基于对传统报应刑罚观的反思,现代刑事政策发生了某些转向。在“两极化刑事政策”、社区矫正、保护被害人、“除罪化”等刑事理念的影响下,现代国家对于轻罪案件中被指控人的处遇问题作了重新审视。缓起诉制度时被指控人虽有“去犯罪标签”之功能,但其适用不当可能侵蚀法官保留原则、滋生检察官权力滥用,进而有损刑事司法的谦抑性。我国未来如果引入缓起诉制度,应当严格限定其适用条件,并设置必要的救济程序。     

Sentence of life without parole: Proposal for the revision of Chinese criminal law in the context of the elimination of death penalty

Death penalty has no alternative. Life without parole (LWOP) has been put forward to nullify the death penalty in China. Practically speaking, LWOP can satisfy the emotional demand of the public so as to nullify the death penalty. LWOP has strong rationales from both retributive and preventive perspectives. Actually, the relation between death penalty and LWOP is just a question, which should be at the top level punishment. Compared with death penalty, LWOP has other advantages such as lower cost burden and more practicability.     

Retributive Whisper: Communicative Elements in Parole

The aims of retributive or nonutilitarian sentencing are said to conflict with parole as part of a determinate sentencing framework. In this article, we claim that a nonutilitarian approach to punishment does not necessarily conflict with parole. In particular, by adopting core elements of Duff's framework of communicative sentencing, we argue that parole inherently holds a communicative meaning in the form of retributive whisper and can thus be reconciled with a nonutilitarian approach to punishment. In addition, we explore a way to enhance the communicative potential in the parole process and suggest that by recognizing and further incorporating the inherent communicative message in parole we can increase or maximize the board's communicative potential. Finally, we discuss some benefits that can emerge from adapting a communicative sentencing framework to the parole process.     

Punishment and rehabilitation

Conclusion Despite partial amendments to criminal legislation the existing Czech criminal system is marked by its punitive character. Despite a slight change in attitudes towards punishment after 1990, the nature of penalties has not been adapted to the new goals. The punishment which fulfils the retributive, i.e. deterrent objective will not automatically become a means of re-education and rehabilitation merely because we change its objective in law. The new purpose of punishment requires changes in contents of punishment, i.e. searching for effective ways of handling offenders both outside and inside prisons. We have to renounce the idea that rehabilitation of offenders can be achieved by coercion. We have to respond to offending by imposing an adequate punishment which must be executed paying full respect to human rights and dignity. In this context, any offender must be able to exercise his or her right to request conditions and means for social reintegration (training, improvement of skills, medical treatment etcetera), if the offender is really interested in rehabilitation. We can only create conditions, we cannot reintegrate anybody by force. Rehabilitation in the Czech Republic continues to be more a good intention than a reality.     

Can Self-Defense Justify Punishment?

This piece is a review essay on Victor Tadros’s The Ends of Harm. Tadros rejects retributive desert but believes punishment can be justified instrumentally without succumbing to the problems of thoroughgoing consequentialism and endorsing using people as means. He believes he can achieve these results through extension of the right of self-defense. I argue that Tadros fails in this endeavor: he has a defective account of the means principle; his rejection of desert leads to gross mismatches of punishment and culpability; and he cannot account for punishment of inchoate crimes.     

Political Neutrality and Punishment

This paper is concerned with the tensions that arise when one juxtaposes one important liberal understanding of the nature and use of state power in circumstances of pluralism and (broadly) retributive accounts of punishment. The argument is that there are aspects of the liberal theory that seem to be in tension with aspects of retributive punishment, and that these tensions are difficult to avoid because of the attractiveness of precisely those features of each account. However, a proper understanding of both liberalism and retributive punishment allows us to dissolve some of the tensions whilst also bringing each position into sharper relief. The paper begins by introducing the liberal position and outlining the apparent tensions that may arise with retributive punishment. In so doing, there is also a brief discussion of how this debate relates to the more familiar dispute between legal moralists and their opponents. The paper then proceeds by considering each of the areas of tension in turn.     

Retributivism: The Right and the Good

Victor Tadros claims that punishment must be justified either instrumentally or on the grounds that deserved punishment is intrinisically good. However, if we have deontic reasons to punish wrongdoers then these reasons could justify punishment non-instrumentally. Morever, even if the punishment of wrongdoers is intrinsically good this fact cannot contribute to the justication of punishment because goodness is not a reason-giving property. It follows that retributivism is both true and important only if we have deontic reasons to punish. Tadros also claims that the constitutive aim of punishment is to inflict harm or suffering on offenders. On the contrary, the constitutive aim of retributive punishment is to inflict (justified) wrongs on offenders that are proportionate to the (unjustified) wrongs they commit. Indeed, punishment should involve the least harmful wrong that is proportionate to the wrongfulness of the offense, adequate to facilitate recognition, and (perhaps) conducive to deterrence.     

Kant's theory of punishment: Deterrence in its threat,retribution in its execution

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.     

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.     

The Theory of the Offender's Forfeited Right

In justifying punishment we sometimes appeal to the idea that the punished offender has, by his criminal action against others, forfeited his moral right (and therefore his legal right) against hard treatment by the state. The imposition of suffering, or deprivation of liberty, loses its prima facie morally objectionable character, and becomes morally permissible.

Philosophers interrogating the forfeited right theory generally focus on whether the forfeiting of the right constitutes a necessary or a sufficient condition for punishment to be permissible; rarely do they ask whether the idea of a right that can be forfeited is itself morally illuminating. The article examines and criticizes various versions of this theory. It concludes that the forfeited right arguments add little other than rhetorical dignity to the existing repertoire of justifications for punishment. They can be most usefully understood as communicating the thought that the offender cannot reasonably complain about the violation of rights he himself has violated. But the incapacitation of the offender's reasonable complaint does not entail that we are justified in punishing him.     

Retributivism and the inadvertent punishment of the innocent

Retributivism is generally thought to forbid the punishment of the innocent, even if such punishment would produce otherwise good results, such as deterrence. It has recently been argued that because capital punishment always entails the risk of executing an innocent person, instituting capital punishment is tantamount to intentionally taking innocent lives and therefore cannot be justified on retributive grounds. I argue that there are several versions of retributivism, only one of which might categorically forbid risking punishing innocent persons. I also argue that our moral practices reveal either that we do not hold this particular version of retributivism, or that we reject equating risking punishing the innocent with intentionally doing so. *** DIRECT SUPPORT *** A9102008 00005     

Theories of Criminalization

In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived.     

The triumph of vengeance over retribution: the United States Supreme Court and the death penalty

In this article the author uses a review of Welsh S. White'sThe Death Penalty in the Nineties as a framework for analyzing recent trends in the United States Supreme Court's death penalty jurisprudence. Since 1976 the Supreme Court has upheld the constitutionality of capital punishment at least in part on the notion that the death penalty serves the useful social purpose of retribution. This article, however, contends that it is imperative to distinguish between retribution and vengeance as rationales for criminal punishment. Modern retributive theory calls for punishments to be guided by considerations of proportionality, fairness, and equality. Vengeance-based punishments, on the other hand, are aimed at satisfying the victim's and society's desire for retaliation and are not limited by the retributive principle that punishment must be proportionate to the severity of the crime and the moral blameworthiness of the offender. The article analyzes recent Supreme Court decisions that are not examined inThe Death Penalty in the Nineties-decisions that allow the introduction of victim-impact evidence into capital sentencing proceedings and permit the death penalty to be imposed on 16-year-old offenders, mentally retarded defendants, and those who neither kill nor intend to kill. These decisions, it is argued, demonstrate that the contemporary Court has bestowed judicial approval on vengeance as an acceptable justification for capital punishment.