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Punishment in Criminal Law

Edited by Gustavo Beade (Universidad de Buenos Aires (UBA), Christian-Albrechts-Universität zu Kiel)
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  1. Larry Alexander (2011). Culpability. In John Deigh & David Dolinko (eds.), The Oxford Handbook of the Philosophy of the Criminal Law. Oxford University Press.
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  2. Larry Alexander (2009). Crime and Culpability: A Theory of Criminal Law. Cambridge University Press.
    This book presents a comprehensive overview of what the criminal law would look like if organized around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they ...
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  3. Larry Alexander (1991). Self-Defense, Punishment, and Proportionality. Law and Philosophy 10 (3):323 - 328.
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  4. Larry Alexander (1986). Consent, Punishment, and Proportionality. Philosophy and Public Affairs 15 (2):178-182.
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  5. Larry Alexander (1983). Retributivism and the Inadvertent Punishment of the Innocent. Law and Philosophy 2 (2):233 - 246.
    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 (...)
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  6. Larry Alexander & Kimberly Kessler Ferzan (2010). Response to Critics. Law and Philosophy 29 (4):483-504.
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  7. David Alm (2013). Self-Defense, Punishment and Forfeiture. Criminal Justice Ethics 32 (2):91-107.
    According to the self-defense view, the moral justification of punishment is derived from the moral justification of an earlier threat of punishment for an offense. According to the forfeiture view, criminals can justly be punished because they have forfeited certain rights in virtue of their crimes. The paper defends three theses about these two views. (1) The self-defense view is false because the right to threaten retaliation is not independent of the right to carry out that threat. (2) A more (...)
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  8. Jami L. Anderson, Comprehending the Distinctively Sexual Nature of the Conduct. Sex, Drugs and Rock and Roll.
    Since the 1970s, sexual assault laws have evolved to include prohibitions of sexual acts with cognitively impaired individuals. The argument justifying this prohibition is typically as follows: A sex act that is forced (without the legally valid consent of) someone is sexual assault. Cognitively impaired individuals, because they lack certain intellectual abilities, cannot give legally valid consent. Therefore, cognitively impaired individuals cannot consent to sex. Therefore, sex acts with cognitively impaired individuals is sexual assault. The prohibition of sex with such (...)
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  9. Jami L. Anderson (2009). Bodily Privacy, Toilets, and Sex Discrimination: The Problem of "Manhood" in a Women's Prison. In Olga Gershenson Barbara Penner (ed.), Ladies and Gents.
    Unjustifiable assumptions about sex and gender roles, the untamable potency of maleness, and gynophobic notions about women's bodies inform and influence a broad range of policy-making institutions in this society. In December 2004, the U.S. Court of Appeals for the Sixth Circuit continued this ignoble cultural pastime when they decided Everson v. Michigan Department of Corrections. In this decision, the Everson Court accepted the Michigan Department of Correction's claim that “the very manhood” of male prison guards both threatens the safety (...)
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  10. Jami L. Anderson (1999). A Hegelian Theory of Punishment. Legal Theory 5 (4):363-388.
    Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of (...)
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  11. Jami L. Anderson (1998). Understanding Punishment as Annulment. Social Philosophy Today 13:215-226.
    Hegel claims that punishment is justified because it annuls crimes thereby revealing the criminal act for what it is, a will “null and void.” In this paper I analyze the complex notion of annulment, arguing that Hegel is claiming that punishment does not change the past, but alters the status of the criminal will so as to reveal that will for what it is, a violation of a victim’s rights. In short, punishment invalidates the criminal's will and validates the victim's (...)
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  12. Richard Arneson (2005). Joel Feinberg and the Justification of Hard Paternalism. Legal Theory 11 (3):259-284.
    Joel Feinberg was a brilliant philosopher whose work in social and moral philosophy is a legacy of excellent, even stunning achievement. Perhaps his most memorable achievement is his four-volume treatise on The Moral Limits of the Criminal Law, and perhaps the most striking jewel in this crowning achievement is his passionate and deeply insightful treatment of paternalism.1 Feinberg opposes Legal Paternalism, the doctrine that “it is always a good reason in support of a [criminal law] prohibition that it is necessary (...)
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  13. Andrew Ashworth (2011). Attempts. In John Deigh & David Dolinko (eds.), The Oxford Handbook of the Philosophy of the Criminal Law. Oxford University Press.
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  14. Andrew Ashworth & Lucia Zedner (2008). Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions. Criminal Law and Philosophy 2 (1):21-51.
    Recent years have seen mounting challenge to the model of the criminal trial on the grounds it is not cost-effective, not preventive, not necessary, not appropriate, or not effective. These challenges have led to changes in the scope of the criminal law, in criminal procedure, and in the nature and use of criminal trials. These changes include greater use of diversion, of fixed penalties, of summary trials, of hybrid civil–criminal processes, of strict liability, of incentives to plead guilty, and of (...)
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  15. Mirko Bagaric (2000). Double Punishment and Punishing Character: The Unfairness of Prior Convictions. Criminal Justice Ethics 19 (1):10-28.
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  16. Wen Bao & Yuhua Li (eds.) (2006). 21 Shi Ji Xing Fa Jia Zhi Qu Xiang Yan Jiu. Zhi Shi Chan Quan Chu Ban She.
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  17. Shima Baradaran (2014). The Presumption of Punishment. Criminal Law and Philosophy 8 (2):391-406.
    The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed, historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due process, as developed throughout English and US. Colonial history leading up to the formation of (...)
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  18. Constance A. Barnicoat (1904). The Government Prison Settlement at Waiotapu, New Zealand. International Journal of Ethics 14 (4):436-444.
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  19. Matthew L. Baum (2013). The Monoamine Oxidase A (MAOA) Genetic Predisposition to Impulsive Violence: Is It Relevant to Criminal Trials? Neuroethics 6 (2):287-306.
    In Italy, a judge reduced the sentence of a defendant by 1 year in response to evidence for a genetic predisposition to violence. The best characterized of these genetic differences, those in the monoamine oxidase A (MAOA), were cited as especially relevant. Several months previously in the USA, MAOA data contributed to a jury reducing charges from 1st degree murder (a capital offence) to voluntary manslaughter. Is there a rational basis for this type of use of MAOA evidence in criminal (...)
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  20. Michael D. Bayles (1982). Character, Purpose, and Criminal Responsibility. Law and Philosophy 1 (1):5 - 20.
    This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and the Humean (...)
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  21. Lawrence C. Becker (1987). Book Review:Causation in the Law. H. L. A. Hart, Tony Honore. [REVIEW] Ethics 97 (3):664-.
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  22. Endre Begby (2009). Defending Humanity: When Force is Justified and Why - by George P. Fletcher and Jens David Ohlin. Ethics and International Affairs 23 (2):213-216.
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  23. Christopher Bennett (2009). L. Zaibert, Punishment and Retribution. Criminal Law and Philosophy 4 (1):105-107.
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  24. Christopher Bennett, Edgar Maraguat, J. M. Pérez Bermejo, Antony Duff, J. L. Martí, Sergi Rosell & Constantine Sandis (2012). Symposium. The Apology Ritual. Teorema 31 (2).
    Symposium on Christopher Bennet's The Apology Ritual. A Philosophical Theory of Punishment [Cambridge University Press, 2008].
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  25. Jeremy Bentham (2010). Of the Limits of the Penal Branch of Jurisprudence. Clarendon Press.
    The work emerged from Bentham's attempt to distinguish between civil and penal law, which led him into an exposition of the nature and scope of an individual ...
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  26. Jeremy Bentham (2009). The Rationale of Punishment. Prometheus Books.
    Definitions and distinctions -- Classification -- Of the ends of punishment -- Cases unmeet for punishment -- Expense of punishment -- Measure of punishment -- Of the properties to be given to a lot of punishment -- Of analogy between crimes and punishment -- Of retaliation -- Popularity -- Simple afflictive punishments -- Of complex afflictive punishments -- Of restrictive punishments--territorial confinement -- Imprisonment -- Imprisonment--fees -- Imprisonment examined -- General scheme of imprisonment -- Of other species of territorial confinement--quasi-imprisonment--relegation--banishment (...)
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  27. Thomas Bittner (2008). Punishment for Criminal Attempts: A Legal Perspective on the Problem of Moral Luck. Canadian Journal of Philosophy 38 (1):pp. 51-83.
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  28. Michael E. Bratman (2006). What is the Accordion Effect? Journal of Ethics 10 (1-2):5 - 19.
    In "Action and Responsibility,'' Joel Feinberg pointed to an important idea to which he gave the label "the accordion effect.'' Feinberg's discussion of this idea is of interest on its own, but it is also of interest because of its interaction with his critique, in his "Causing Voluntary Actions,'' of a much discussed view of H. L. A. Hart and A. M. Honoré that Feinberg labels the "voluntary intervention principle.'' In this essay I reflect on what the accordion effect is (...)
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  29. Corey Brettschneider (2011). Rights Within the Social Contract : Rousseau on Punishment. In Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey (eds.), Law as Punishment/Law as Regulation. Stanford Law Books.
  30. Corey Brettschneider (2007). The Rights of the Guilty: Punishment and Political Legitimacy. Political Theory 35 (2):175-199.
    In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state's relationship to its citizens. Central to my account is Rawls's “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to criminals qua citizens. (...)
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  31. Thom Brooks (2012). Punishment. Routledge.
    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, (...)
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  32. Thom Brooks (2010). Punishment. Oxford Bibliographies Online.
    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, (...)
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  33. Thom Brooks (2008). Shame on You, Shame on Me? Nussbaum on Shame Punishment. Journal of Applied Philosophy 25 (4):322-334.
    abstract Shame punishments have become an increasingly popular alternative to traditional punishments, often taking the form of convicted criminals holding signs or sweeping streets with a toothbrush. In her Hiding from Humanity, Martha Nussbaum argues against the use of shame punishments because they contribute to an offender's loss of dignity. However, these concerns are shared already by the courts which also have concerns about the possibility that shaming might damage an offender's dignity. This situation has not led the courts to (...)
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  34. Kimberley Brownlee (2012). Conscience and Conviction: The Case for Civil Disobedience. Oxford University Press.
    This book shows that civil disobedience is generally more defensible than private conscientious objection. -/- Part I explores the morality of conviction and conscience. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument begins with the communicative principle of conscientiousness. According to this principle, having a conscientious moral conviction means not just acting consistently with our beliefs and judging ourselves and others by a common moral standard. It also means not seeking to evade the consequences (...)
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  35. Kimberley Brownlee (2008). Justifying Punishment: A Response to Douglas Husak. [REVIEW] Criminal Law and Philosophy 2 (2):123-129.
    In ‘Why Criminal Law: A Question of Content?’, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification for the imposition of punishment, namely, individuals (...)
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  36. Alan Brudner (2009). Punishment and Freedom: A Liberal Theory of Penal Justice. Oxford University Press.
    Punishment -- Culpable mind -- Culpable action -- Responsibility for harm -- Liability for public welfare offences -- Justification -- Excuse -- Detention after acquittal -- The unity of the penal law.
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  37. Paul Butler (2011). Stop and Frisk : Sex, Torture, Control. In Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey (eds.), Law as Punishment/Law as Regulation. Stanford Law Books.
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  38. Guilherme Costa Câmara (2008). Programa de Política Criminal: Orientado Para a Vítima de Crime. Coimbra Editora.
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  39. Alejandro Chehtman (2010). The Philosophical Foundations of Extraterritorial Punishment. Oxford University Press.
    This book provides the first full account, explanation, and critique of extraterritorial punishment in international law.
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  40. Michael Cholbi (2010). Compulsory Victim Restitution is Punishment: A Reply to Boonin. Public Reason 2 (1):85-93.
    David Boonin has recently argued that although no existing theory of legal punishment provides adequate moral justification for the practice of punishing criminal wrongdoing, compulsory victim restitution (CVR) is a morally justified response to such wrongdoing. Here I argue that Boonin’s thesis is false because CVR is a form of punishment. I first support this claim with an argument that Boonin’s denial that CVR is a form of punishment requires a groundless distinction between a state’s response to a criminal offense (...)
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  41. Michael Cholbi (2005). Cruelty, Competency, and Contemporary Abolitionism. In A. Sarat (ed.), Studies in Law, Politics, and Society. 123-140.
    After establishing that the requirement that those criminals who stand for execution be mentally competent can be given a recognizably retributivist rationale, I suggest that not only it is difficult to show that executing the incompetent is more cruel than executing the competent, but that opposing the execution of the incompetent fits ill with the recent abolitionist efforts on procedural concerns. I then propose two avenues by which abolitionists could incorporate such opposition into their efforts.
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  42. Michael Cholbi (2002). A Felon's Right to Vote. Law and Philosophy 21 (4/5):543-564.
    Legal statutes prohibiting felons from voting result in nearly 4 million Americans, disproportionately African-American and male, being unable to vote. These felony disenfranchisement (FD) statutes have a long history and apparently enjoy broad public support. Here I argue that despite the popularity and extensive history of these laws, denying felons the right to vote is an unjust form of punishment in a democratic state. FD serves none of the recognized purposes of punishment and may even exacerbate crime. My strategy is (...)
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  43. C. M. V. Clarkson (2008). Why Criminal Law? The Role of Utilitarianism: A Response to Husak. [REVIEW] Criminal Law and Philosophy 2 (2):131-135.
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  44. Jules L. Coleman (ed.) (1994). Crimes and Punishments. Garland Pub..
    Meeting of the Aristotelian Society at 21, Bedford Square, London, WCI, on 29/A October,, at 7.30 pm PAPERS READ BEFORE THE ...
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  45. J. Angelo Corlett (2006). The Philosophy of Joel Feinberg. Journal of Ethics 10 (1-2):131 - 2.
    This paper is offered as a tribute to Joel Feinberg. The first section of the paper applies Feinberg’s analysis of freedom of expression to a contemporary case of academic freedom. The second section engages Feinberg’s work on rights and punishment. The paper ends with numerous quotations from Feinberg’s vast array of writings, words that express his ideas on a number of important problems that occupied his mind throughout his fruitful and influential career.
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  46. Michael Corrado (1992). How to Do Things on Purpose: R. A. Duff'sintention, Agency, and Criminal Liability. [REVIEW] Law and Philosophy 11 (3):265 - 281.
    There is a lot of material in this book, and Duff handles most of it very well. It is unfortunate that he felt the need to tie his discussion of serious philosophical questions in the criminal law to larger overarching questions of philosophy. It is possible that current conceptions of intentional action implicate dualism (or Dualism), I suppose, but that would be a book-length discussion all of its own. It would begin with a careful discussion of just what dualism is, (...)
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  47. Wesley Cragg (1992). The Practice of Punishment: Towards a Theory of Restorative Justice. Routledge.
    In the latter half of the twentieth century, there has been a sharp decline in confidence in sentencing principles, due to a questioning of the efficacy of punishment. It has been very difficult to develop consistent, fair, and humane criteria for evaluating legislative, judicial and correctional advancements. The Practice of Punishment offers a comprehensive study of punishment that identifies the principles of sentencing and corrections on which modern correctional systems should be built. The theory of punishment that emerges is built (...)
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  48. Rowan Cruft, Matthew H. Kramer & Mark R. Reiff (eds.) (2011). Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff. Oxford University Press.
    This volume collects essays by leading criminal law theorists to explore the principal themes in his work.
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  49. John Danaher (2013). Kramer's Purgative Rationale for Capital Punishment: A Critique. [REVIEW] Criminal Law and Philosophy:1-20.
    Matthew Kramer has recently defended a novel justification for the death penalty, something he calls the purgative rationale. According to this rationale, the death penalty can be justifiably implemented if it is necessary in order to purge defilingly evil offenders from a moral community. Kramer claims that this rationale overcomes the problems associated with traditional rationales for the death penalty. Although Kramer is to be commended for carving out a novel niche in a well-worn dialectical space, I argue that his (...)
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  50. Annette de Sousa Costa (ed.) (2010). Entre Droit Et Morale: La Finalité de la Peine: Journée d'Études du 13 Novembre 2007, Université Paris Ouest Nanterre la Défense. [REVIEW] P. Lang.
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