Individuals convicted of crimes are often subject to numerous restrictions — on housing, employment, the vote, public assistance, and other goods — well after they have completed their sentences, and in some cases permanently. The question of whether — and if so, when — ex-offender restrictions are morally permissible has received surprisingly little philosophical scrutiny. This article first examines the significance of completing punishment, of paying one's debt to society, and contends that when offenders' debts are paid, they should (...) be restored to full standing as citizens. Thus all ex-offender restrictions are presumptively unjustified. Nonconsequentialist defences of these restrictions are ultimately unsuccessful in defeating the presumption against them. In a limited range of cases, consequentialist considerations — namely, of risk reduction — may be sufficient to override the presumptive case against these restrictions. The article concludes by suggesting a number of criteria for assessing whether particular restrictive measures are permissible on grounds of risk reduction. (shrink)

In this article I analyse two complaints of white vilification, which are increasingly occurring in Australia. I argue that, though the complainants (and white people generally) are not harmed by such racialized speech, the complainants in fact harm Australians of colour through these utterances. These complaints can both cause and constitute at least two forms of epistemic injustice (willful hermeneutical ignorance and comparative credibility excess). Further, I argue that the complaints are grounded in a dual misrecognition: the complainants misrecognize themselves (...) in their own privileged racial specificity, and they misrecognize others in their own marginal racial specificity. Such misrecognition preserves the cultural imperialism of Australia’s dominant social imaginary—a means of oppression that perpetuates epistemic insensitivity.Bringing this dual misrecognition to light best captures the indignity that is suffered by the victims of the aforementioned epistemic injustices. I argue that it is only when we truly recognize difference in its own terms, shifting the dominant social imaginary, that “mainstream Australians”can do their part in bringing about a just society. (shrink)

A prominent view of psychopathic moral reasoning suggests that psychopathic individuals cannot properly distinguish between moral wrongs and other types of wrongs. The present study evaluated this view by examining the extent to which 109 incarcerated offenders with varying degrees of psychopathy could distinguish between moral and conventional transgressions relative to each other and to nonincarcerated healthy controls. Using a modified version of the classic Moral/Conventional Transgressions task that uses a forced-choice format to minimize strategic responding, the present study found (...) that total psychopathy score did not predict performance on the task. Task performance was explained by some individual subfacets of psychopathy and by other variables unrelated to psychopathy, such as IQ. The authors conclude that, contrary to earlier claims, insufficient data exist to infer that psychopathic individuals cannot know what is morally wrong. (shrink)

Some environmental views characterise the human abuse of nature as an offence against nature itself. What conception of nature would best fit that characterisation? To focus upon such a conception, aesthetic offences against nature are examined and distinguished at the outset from moral offences. Aesthetic offences are divided into those internal to our cultural outlook and external to it. The external outlook, conceiving nature as a thing wholly apart from us, is shown to be necessary to any view of nature (...) being offended against. Central to the external outlook is a conception of nature as the victim of offence without ever being itself an offending agent. Best fitting this is the notion of nature as primordially innocent. Given this metaphorical extension, the awkward consequence arises that any human use of nature constitutes thereby an abuse of it from the external standpoint. (shrink)

The aim of the paper is to investigate how retributivists should respond to the apparent tension between moral desert and proportionality in punishment. I argue that rather than attempting to show that the term ‘proportionate punishment’ refers to whatever penal treatment the offender morally deserves, retributivists should maintain two things: first, that a punishment is proportionate when it is commensurate to the seriousness of the crime; second, that offenders morally deserve proportionate punishments. This view requires adopting a local theory (...) of desert as opposed to a holistic one. In the second part of the paper, I argue that there are indeed good reasons to adopt a local theory of desert. Once retributivism is seen through the lens of local desert, there is no obvious mistake in saying that offenders morally deserve punishments that are proportionate to the seriousness of their crimes. (shrink)

This commentary continues an exchange on eugenics in Monash Bioethics Review between Anomaly (2018), Wilson (2019), and Veit, Anomaly, Agar, Singer, Fleischman, and Minerva (2021). The eponymous question, “Can ‘Eugenics’ be Defended?”, is multiply ambiguous and does not receive a clear answer from Veit et al.. Despite their stated desire to move beyond mere semantics to matters of substance, Veit et al. concentrate on several uses of the term “eugenics” that pull in opposite directions. I argue, first, that Veit et (...) al. (2021) makes much the same error as does Anomaly (2018) in characterizing eugenics; second, that the paper misunderstands the relationship between eugenics and enhancement; and third, that it distorts the views expressed in my “Eugenics Undefended”. (shrink)

This essay asks whether restorative justice practices in criminal legal systems are consistent with the aims of a liberal state.

1. Anderson and Lepore (2013) argue that the offensiveness of slur terms can’t consist (merely?) in their having derogatory meanings because even quotation marks fail to prevent offence being cause...

In the UK and USA ‘Hate crime’ has become a topic of public controversy and social mobilization around issues of violence and harassment. This has largely but not exclusively addressed racism, homophobia and gender based violence. This article has three objectives. First, to situate hate crime legislation within a broad theory of modernity;secondly to examine the politics of its emergence as a public issue; thirdly to use data from the authors' recent research in Greater Manchester to illuminate the complexity of (...) the concept of ‘hate crime’. The centrality of ‘hate crime’ to current debates derives from the importance of rights-based regulation of complex societies and the juridical management of emotional life. Hatred and violence have become problematic behaviour thrown into relief by a long term civilizing process. Hate crimes have thus acquired powerful rhetorical focus for mobilization of victim and identity politics. With reference to racist violence in Oldham and elsewhere in Greater Manchester, we argue that in its application and construction, however, ‘hate crime’ is a complex phenomenon that might dramatize rather than regulate the problems it seeks to address. (shrink)

With the growing prominence of restorative justice interventions, criminal justice is being reconceptualized in terms of a new paradigm of justice. The central concept of this new paradigm is victim-offender empowerment. The paper articulates the meaning and application of this idea in restorative justice philosophy and practice.

Written by a multi-disciplinary group of leading practitioners, _Sexual Offending Against Children_ provides an account of the practice, policy and management issues involved in the assessment and treatment of adult and adolescent sexual offenders against children. Written for practitioners from all disciplines concerned with this area of work, it is underpinned by a strong theoretical base, giving a practical and detailed description of the management of sexual offenders, as well as the potential impact on service providers.

Punishment is a grave intrusion into individual liberty, yet in most liberal criminal justice systems, including England and Wales, those punished are rarely directly engaged in determining their sentence. Consequently, the offender’s agency in respect of sentence—i.e. the offender’s capacity to play an active part in the sentencing process—is limited. Drawing on existing theories of punishment, the article argues that there may be justifications and scope for allowing offenders to exercise agency in a state-centred sentencing process, even though (...) this scope is inevitably limited. It aims to develop a conceptual account of an ‘agentic’ sentencing system, arguing this should be based on the paradigm of a dialogue between the judge and offender. To preserve the state’s fundamental role in sentencing, constraints should be placed on the exercise of agency. The proposed model embodies a conception of sentencing as a decision-making process to be done _with_ offenders, rather than _to_ offenders. Nonetheless, while some objections can be rebutted, others demonstrate the gap between the theoretical ideal of respecting the offender’s agency at sentencing and how an agentic sentencing system might function in practice. (shrink)

There is a great deal of research on the structure of narrative and its mode, and on the narrative positioning and counter positioning of the actor in legal and social contexts. In offender narratives, personal experiences are embedded for observation and analysis of particular realities that contextualize a disposition of the perpetrator being ‘an undergoer’ rather than an ‘effector’ of actions. This is evaluated in the shift from a narrated action to a speaker utterance in prospection and also in (...) anticipation of the criminal act. Using ‘grammatical logic’, it is also possible to demonstrate how the crucial event is not a cause, but an effect of a personal theme that encapsulates pattern of circumstances when the narrative outcome in criminal narrative becomes the product of its discursive practices. This is the ‘story of intentionality’ in crime narratives, characteristically embedded within the 1st the story of crime, the 2nd is the story of investigation [14, 20]. Using techniques from functional grammar and critical stylistics for discourse analysis, I intend to show an effective approach for the search of offender theme that underlies an act of crime. These disciplines provide the analyst with the linguistic material to analyse intersentential cohesion in a chain of semantically linked sentences that explore the ways in which things are ‘made to look’ in the structure and functions of the English language. As a case study, I am using an offender narrative from Tony Parker’s book Life After Life: Interviews with Twelve Murderers showing an effective approach for the search of personal themes underlying the act of crime. Offender theme analyses are also valuable for evaluating the changing nature or development of offender characteristics pre or post crime. (shrink)

Rehabilitation programmes are widely offered to offenders in custodial and community settings around the world. Despite the existence of a large evidence base that identifies features of effective practice, levels of programme integrity remain low and are widely believed to undermine successful rehabilitation. In this paper it is suggested that conceptualising rehabilitation as a moral activity which involves assisting offenders to make better ethical decisions is one way to address some of the difficulties in the delivery of rehabilitation programmes that (...) potentially lead to low levels of integrity, thereby increasing effectiveness. (shrink)

Is it morally acceptable to instigate criminal offenders to participate in rehabilitative treatment by offering treatment in return for early release from prison? Some theorists have supported such treatment schemes by pointing to the beneficial consequences that follow from the treatment. Others have suggested that the schemes are unacceptably coercive, which implies that consent becomes an illusion. This paper argues that the discussion—with clear parallels to debates of other healthcare treatment offers in medical ethics—has adopted a too narrow focus. By (...) failing to consider the question as a penal theoretical problem, the arguments—both by proponents and critics of coercive treatment—become premature. (shrink)

Kant gives what appear to be consequentialist and retributivist reasons for his claim that the state must punish criminal offenders. I argue that Kant’s justification is retributivist and not consequentialist. In particular, I argue that Kant’s justification is found in his argument that we must attribute to an offender’s reason the judgment that she must be punished. I argue that other retributivist interpretations as well as interpretations that prioritize consequentialist reasons have little textual support. I also reconstruct an argument (...) that Kant implies for his claim that ius talionis is the proper criterion for determining the quality and quantity of punishment. (shrink)

A central thinker on the question of the animal in continental thought, Élisabeth de Fontenay moves in this volume from Jacques Derrida’s uneasily intimate writing on animals to a passionate frontal engagement with political and ethical theory as it has been applied to animals—along with a stinging critique of the work of Peter Singer and Paola Cavalieri as well as with other “utilitarian” philosophers of animal–human relations.Humans and animals are different from one another. To conflate them is to be intellectually (...) sentimental. And yet, from our position of dominance, do we not owe them more than we often acknowledge? In the searching first chapter on Derrida, she sets out “three levels of deconstruction” that are “testimony to the radicalization and shift of that philosopher’s argument: a strategy through the animal, exposition to an animal or to this animal, and compassion toward animals.” For Fontenay, Derrida’s writing is particularly far-reaching when it comes to thinking about animals, and she suggests many other possible philosophical resources including Adorno, Leibniz, and Merleau-Ponty.Fontenay is at her most compelling in describing philosophy’s ongoing indifference to animal life—shading into savagery, underpinned by denial—and how attempts to exclude the animal from ethical systems have in fact demeaned humanity. But Fontenay’s essays carry more than philosophical significance. Without Offending Humans reveals a careful and emotionally sensitive thinker who explores the unfolding of humans’ assessments of their relationship to animals—and the consequences of these assessments for how we define ourselves. (shrink)

A central thinker on the question of the animal in continental thought, Élisabeth de Fontenay moves in this volume from Jacques Derrida’s uneasily intimate writing on animals to a passionate frontal engagement with political and ethical theory as it has been applied to animals—along with a stinging critique of the work of Peter Singer and Paola Cavalieri as well as with other “utilitarian” philosophers of animal–human relations. Humans and animals are different from one another. To conflate them is to be (...) intellectually sentimental. And yet, from our position of dominance, do we not owe them more than we often acknowledge? In the searching first chapter on Derrida, she sets out “three levels of deconstruction” that are “testimony to the radicalization and shift of that philosopher’s argument: a strategy _through_ the animal, exposition to an animal or to this animal, and compassion _toward_ animals.” For Fontenay, Derrida’s writing is particularly far-reaching when it comes to thinking about animals, and she suggests many other possible philosophical resources including Adorno, Leibniz, and Merleau-Ponty. Fontenay is at her most compelling in describing philosophy’s ongoing indifference to animal life—shading into savagery, underpinned by denial—and how attempts to exclude the animal from ethical systems have in fact demeaned humanity. But Fontenay’s essays carry more than philosophical significance. _Without Offending Humans_ reveals a careful and emotionally sensitive thinker who explores the unfolding of humans’ assessments of their relationship to animals—and the consequences of these assessments for how we define ourselves. (shrink)

In Les Blank's documentary Werner Herzog Eats His Shoe , director Werner Herzog eats pieces of his own sturdy looking footwear in order to settle a bet that he made with the filmmaker Errol Morris. While dining on his shoe, which he has cooked in garlic and duck fat, Herzog responds to the question, “What is the value of films for society?” Initially, he answers the question with a question: “Whose society?” . It appears that he has finished responding and (...) is returning to the business of eating, but Herzog is hardly known for keeping his answers…. (shrink)

Retention of offender DNA samples serves an important quality assurance role for forensic DNA laboratories. Consistent with the principles of confidentiality underlying the establishment of the state and national DNA databases, safeguards are in place to protect the DNA samples from unauthorized use.

Managing the violent behaviour of mentally disordered offenders is challenging in all jurisdictions. We describe the ethical framework and practical management of MDOs in England and Wales in the context of the move to equivalence of healthcare between hospital and prison. We consider the similarities and differences between prison and hospital management of the violent and challenging behaviours of MDOs. We argue that both types of institution can learn from each other and that equivalence of care should extend to equivalence (...) of criminal proceedings in court and prisons for MDOs. We argue that any adjudication process in prison for MDOs is enhanced by the relevant involvement of mental health professionals and the articulation of the ethical principles underpinning health and criminal justice practices. (shrink)

In response to the racial disparities that plague the American criminal justice system, the Movement for Black Lives calls for an end to policing and punishment “as we know it.” But refusing to punish violent offenses leaves unprotected those most vulnerable to crime, and outright abolition thus appears to undermine black rights and liberties. I call this the decarceration dilemma. After discussing Tommie Shelby and Christopher Lewis’s attempts to resolve the dilemma, I offer my own, which employs a procedural rather (...) than a substantive solution. I lean on the principle of expanded asymmetry (EA), which holds that it is better to underpunish than overpunish. After defending EA, I note that it obtains only under conditions of uncertainty. I then show that because virtually all trials of black offenders meet the uncertainty condition, sentencing authorities are obliged to treat black offenders leniently. I conclude by noting the advantages of my proceduralist approach. (shrink)

DURING THE PAST THIRTY YEARS, A GROWING CONVERSATION ABOUT THE "restorative" dimensions of justice in contrast to its "retributive" dimensions in addressing crime, wrongdoing, and cultural conflict has emerged around the world. In New Zealand, an initiative known as Family Group Conferencing has virtually replaced the conventional juvenile justice that preceded it. This initiative has inspired many people around the world to adapt that restorative approach in many different settings.

Fish has always been adept at revising his position to incorporate what he’s learned from his critics while repaying the favor by assigning them a position they never took. The latter practice naturally helps conceal the borrowings, but as Fish’s position evolves it becomes progressively difficult to determine who is the author of his essays. I am, of course, gratified to see how much Fish has learned from me. It is salutary to find that Fish is finally just a humble (...) historian working with others at “recovering a system of thought and feeling” that will enable us to establish the historical context of Milton’s most probable intentions and realizing, as many historians of literature don’t, that we can only do so by bringing concepts provided by literary theory—form, function, artistic purpose, and so forth—to bear on the mass of historical materials at our disposal.3 It is also gratifying to see that Fish has discovered the law of context and now realizes that there are no local matters. Had he discovered that earlier, we’d have been spared Aunt Tilly and the discussion of Mr. Collins—as well as the general notion extrapolated from those examples that anything a sizable group decides to do will fly since nothing else constraints interpretation. We’d also have been spared the concepts of reading and affective criticism presented in Fish’s early work and the unchecked linguistic hijinks used to sustain those readings. I derive my deepest pleasure, however, from finding that Fish has finally discovered the conflict of interpretations proper and its primacy—“the resistance offered by one interpretively produced shape to the production of another” —though I must sadly abridge this progress report by noting that he finds himself powerless to do anything with this recognition. That is as it must be, for the most interesting thing about Fish’s borrowings is where he stops—and why he has to. Having let me write the first 5 ½ pages of his reply, he suddenly stops taking dictation so that he can simply reassert, in all its abstract glory, his tried-and-true resolution of all interpretive controversy by community interest. Had he read further, he would have discovered that a good deal more emerges if one attempts to preserve and deal with the conflict of interpretations rather than to do away with it. He would even have discovered my epistemology and would have learned the main lesson—that his position is not an alternative to mine but an early moment it contains and sublates in a larger context.Have taught Fish so much, I found myself, instead, poorly repaid by the position he foists upon me. Constantly caught up in an effort to reiterate the dichotomy on which his entire theorizing depends, Fish’s fixed need is to rework all disputes into an opposition between the party of independent fact-disinterested reason and the party of interest so that he might triumphantly resolve all difficulties by once again discovering the simple fact of interests. Lest this strategy hide behind a common misconception, our debate is not a case where distinct frameworks are simply misreading one another, as they must, but one where one framework must deliberately and seriously misread others since it has no other way to sustain itself. If the account Fish gives of my argument is the way things must look from his framework, all that this fact signifies is the paucity of his framework and its inability to achieve even minimal descriptive adequacy. 3. But even here things are a good deal more complex than Fish imagines. For a good statement of the logic and problems of historical interpretation, see Robert Marsh, “Historical Interpretation and the History of Criticism,” in Literary Criticism and Historical Understanding, ed. Philip Damon , pp. 1-24. (shrink)

Many criminal offenders come from disadvantaged backgrounds, which punishment entrenches. Criminal culpability explains some disadvantageous treatment in state-offender interactions; yet offenders remain people, and ‘some mother’s child’, in Eva Kittay’s terms. Offending behaviour neither erases needs, nor fully excuses our responsibility for offenders’ needs. Caring is demanded in principle, recognising the offender’s personhood. Supporting offenders may amplify welfare resources: equipping offenders to provide self-care; to meet caring responsibilities; and enabling offenders’ contribution to shared social life, by providing support (...) and furthering the choices of others seeking to engage with them. The desistance paradigm (viewing desistance from offending as a process, following from an offender’s active choice in the context of stabilising social structures and personal circumstances), implies that a supportive environment may facilitate reduced recidivism. While decisions about criminal culpability need justice, we may use state resources most effectively by also including care ethics in our thinking about punishment. (shrink)

The paper aims to assess the theory of mind of sexual offenders. We administered to 21 sexual offenders and to 21 nonoffenders two classical first- and second-order ToM tasks, a selection of six Strange Stories, and a semi-structured interview, the Theory of Mind Assessment Scale , which provides a multi-dimensional evaluation of ToM, investigating first- vs. third-person and egocentric vs. allocentric perspectives. Results show that sexual offenders performed worse than controls on second-order ToM tasks, on Strange Stories and on each (...) of the Th.o.m.a.s dimensions, whereas they did as well as the control group on first-order ToM tasks. A detailed analysis of participants’ performance on Th.o.m.a.s. showed that sex offenders performed worse on the third-person than on the first-person ToM scale, and worse on the allocentric than on the egocentric perspective; these findings did not apply to the controls. Implications for future research and treatment are discussed. (shrink)

The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name of (...) all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis : circumstances in which a moral community can no longer be plausibly said to exist. (shrink)

This paper makes the counterintuitive argument that apologetic offenders in both criminal and noncriminal contexts deserve reductions in punishment even according to retributive theories of justice. I argue here that accounting for post-offense apologetic meanings can make retributivism more fair and consistent much in the same way that considering pre-offense behavior such as culpable mental states like premeditation provide a more holistic and accurate view of the badness of the offense at issue. On my view, retributivists should endorse the general (...) principle that categorically apologetic offenders deserve less punishment because certain kinds of contrition can revise the very nature of the offense and thereby make it less bad and deserving of less punishment. This claim is symmetrical with the popular view that unapologetic or remorseless offenders deserve more punishment. (shrink)

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders and demonstrate that the law (...) leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime. (shrink)

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders and demonstrate that the law (...) leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime. (shrink)

Soon it may be possible to promote the rehabilitation of criminal offenders through _neurointerventions_ (interventions which exert direct physical, chemical or biological effects on the brain). Some jurisdictions already utilise neurointerventions to diminish the risk of sexual or drug-related reoffending. And investigation is underway into several other neurointerventions that might also have rehabilitative applications within criminal justice—for example, pharmacotherapy to reduce aggression or impulsivity. Ethical debate on the use of neurointerventions to facilitate rehabilitation—henceforth ‘neurorehabilitation’—has proceeded on two assumptions: that we (...) have instrumental reasons for employing neurorehabilitation (e.g. because it helps protect the public from crime); and that its permissibility depends upon whether its use unjustifiably infringes offenders’ rights. This paper defends a different, hitherto neglected thought. I argue we have rights-based reasons to offer neurorehabilitation to offenders—in other words, that offenders have a _moral right_ to neurorehabilitation. I identify three considerations which support a moral right to conventional rehabilitative interventions—(1) as a countermeasure to the debilitating side-effects of punishment; (2) as a derivative right of the right to hope for renewed liberty; and (3) as compensation for structural injustice. I argue these considerations extend to support a moral right to neurorehabilitation in the following instance: when neurorehabilitation would be part of the _most effective_ package for facilitating rehabilitation, and can be carried out at reasonable cost. I then defend my argument against potential objections, including the objection that neurorehabilitation is a bad option for offenders to have and the charge of over-medicalisation. (shrink)

This article addresses the question of how multiple offenders – that is, offenders who have committed more than one crime before they are apprehended – should be punished from a retributivist point of view. Two theories are evaluated, both defending the view that there should be a bulk discount for multiple offending. According to the first theory, a bulk discount follows from the idea of a punishment ceiling for types of crimes and the principle of parsimony in punishing. According to (...) the second, the discount follows from a certain view on mercy. However, it is argued that both theories suffer from theoretical flaws and that they are also insufficient in practical terms. That is, they fail to provide a basis for the making of decisions about how multiple -offence cases should be dealt with by the criminal justice system. (shrink)

Journal of Political Philosophy, EarlyView.

Repeat offenders receive longer sentences than first offenders in virtually every modern jurisdiction. Such prior-record enhancements are politically popular. Scholars are more divided, especially regarding severe enhancements. Retributivists have long disagreed about which enhancements, if any, are morally justifiable and on what basis. This article advances the debate, offering lessons for retributivists on all sides. I address an intuitive argument that justifies enhancements in terms of character. This argument has been caricatured and dismissed, with defenders of enhancements preferring character-independent arguments. (...) I reconstruct an argument for enhancements that assumes recidivism constitutes evidence of culpability-aggravating character traits. The argument seems at least coherent, inferentially valid, and intuitively plausible. I then raise what I see as the real threats to the argument, which are neither conceptual nor normative, but empirical. I identify some formal features that the character argument requires of culpability-aggravating traits. To support enhancements, such traits must also correlate properly with criminal records. One place to look for characterizations of such traits, and evidence of correlation, is criminology, in theories of criminogenesis and criminality. I conclude that character arguments for prior-record enhancements cannot be dismissed, although their thorough evaluation awaits answers to complex empirical questions. (shrink)

In his thought-provoking article, John McMillan argues that the moral acceptability of offering surgical castration to imprisoned sex offenders depends partly on the state's intentions when making the offer.1 McMillan considers the situation where the prisoner will be detained for public protection for as long as he is considered dangerous and where the state and the offender both know that he may become non-dangerous sooner and qualify for early release if he accepts the offer of castration. Does the state, (...) when presenting the offender with the option of castration, intend him to choose this alternative? Does the state intend that the possibility of being released earlier from prison will induce him to accept castration? For McMillan, it seems that if the answer to either of these questions is ‘yes’ then the offer is morally unacceptable. However, McMillan maintains that ‘the state need not intend that sex offenders are castrated’, and need not intend offenders to accept castration because of the prospect of early release .1 He concludes that castration may be ethically defensible provided other conditions are also met .1While I am sympathetic to McMillan's claim that the state's intentions are morally significant, I believe that this claim requires more justification than he provides. McMillan argues that …. (shrink)