Online research in philosophy

Proponents and opponents of the death penalty both typically assume that punishment, in some form or other, is justified, somehow or other, and that just punishment must in some sense be proportionate to the crime. These shared assumptions turn out to embarrass both parties. Proponents have to explain why certain prima facie proportionate punishments, such as torture, are off the table, while death remains, so to speak, on it. Opponents have to explain why their favored alternatives to capital punishment, such as life without parole, are both proportionate to the worst crimes and not as bad as death. The commitment to proportionality makes trouble for both sides of the issue, and its resolution is unlikely until there is a satisfactory general account of proportionality in punishing. Such an account is nowhere in sight.

The Eighth Amendment of the United States Constitution dictates that “Excessive bail shall not be required, excessive fines imposed, nor cruel and unusual punishments inflicted.”[i] I have often wondered, and perhaps the reader has as well: just what purpose is served by the addition of the word “unusual” to the constitutional clause prohibiting cruel punishments? When a legislature enacts or a judge levies a punishment that is much harsher than what the norm is for such an offense, this unusual punishment is often taken to be unconstitutional. But while it is certainly unusual to bestow a life sentence without parole upon a petty thief, is not this excessive punishment cruel and thus wouldn’t a ban of just cruel punishments suffice? If “cruel” in a constitutional sense means something like “unjustifiably harsh,” why would a punishment need to have any other property to be unconstitutional? Of course, there are punishments that are unjust but not cruel. One such case would occur when a judge gives a guilty friend an unusually light sentence. But the word “unusual” could not have been added to render such lenient sentences unconstitutional for the crucial phrase of the Eighth Amendment is a conjunction and not a disjunction. It does not prohibit cruel or unusual punishments but cruel and unusual punishments.

George Fletcher emerges in his writing, as in his life, as a colorful and highly individual figure. The last thing one expects of him is the surrender of individual identity to an anonymous submersion in the collective. Yet doctrinally he is a collectivist. In his recent writings, he has been seeking to collectivize just about everything: action, responsibility, guilt, liability, self-defense, criminal punishment, international criminal law, action in war, war crimes, and so on.

Although the view that punishment is to be justified on utilitarian grounds has obvious appeal, an examination of utilitarianism reveals that, consistently and accurately interpreted, it dictates unjust punishments which are unacceptable to the common moral consciousness. In this rule?utilitarianism is no more satisfactory than is act?utilitarianism. Although the production of the greatest good, or the greatest happiness, of the greatest number is obviously a relevant consideration when determining which punishments may properly be inflicted, the question as to which punishment is just is a distinct and more basic question and one which must be answered before we can determine which punishments are morally permissible. That a retributivist theory, which is a particular application of a general principle of justice, can account more satisfactorily for our notion of justice in punishment is a positive reason in its support.

Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences. I make two central claims: First, a successful justification of punishment must take account of offenders' subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now. I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.

This work provides, for the first time, a unified account of the theory of action presupposed by both British and American criminal law and its underlying morality. It defends the view that human actions are volitionally caused body movements. This theory illuminates three major problems in drafting and implementing criminal law--what the voluntary act requirement does and should require, what complex descriptions of actions prohibited by criminal codes both do and should require, and when the two actions are the "same" for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book contributes to the development of a coherent theory of action in philosophy. It provides a grounding in three of the most basic elements of criminal liability for legislators, judges, and the lawyers who argue to them.

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.

Meeting of the Aristotelian Society at 21, Bedford Square, London, WCI, on 29/A October,, at 7.30 pm PAPERS READ BEFORE THE ...

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 -- Of simply restrictive punishments -- Of active or laborious punishment -- Capital punishment -- Capital punishment examined -- Punishment analyzed -- Of the punishments belonging to the moral sanction -- Forfeiture of reputation -- Of pecuniary forfeitures -- Forfeiture of condition -- Forfeiture of the protection of the law -- Naturally extravasting punishment--rules concerning it -- Punishment apparently, but not really, mis-seated--civil responsibility -- Mis-seated punishment, varieties of -- Vicarious punishment -- Transitive punishment -- Disadvantages of this mode of punishment -- Collective punishment -- Random punishment -- Cause of the frequency of mis-seated punishment -- Inconveniences of complex punishments -- Of transportation -- Panopticon penitentiary -- Felony -- Of præmunire -- Outlawry -- Excommunication -- Choice of punishment--latitude to be allowed to the judges -- Of subsidiary punishments -- Of surety for good conduct -- Defeazance of punishment.