This paper is published as part of special issue on the theme of ‘justice without retribution’. Any attempt to consider how justice may be achieved without retribution has to begin with a consideration of what we mean by justice. The most powerful pleas for justice usually come from those who feel that they have been harmed by the wrongful acts of others. This paper will explore this intuition about justice and will argue that it arises from the central importance of (...) reciprocity, in the form of equity, balance and fairness, in human relationships. This is expressed in our image of justice, one of whose core symbols is a set of scales. I will use a clinical case to illustrate what can happen when criminal harm is not followed by any form of restitution. In this case, the punitive impulse was internalised in the victim and turned against herself in the form of deliberate self harm and, ultimately, death by suicide. I will argue that human relationships largely consist of reciprocal acts of good or harm and that we constantly strive for a balanced reciprocity in our relationships with others. This theme has been played out throughout human history in personal relationships, social customs, legal systems, religion and culture. It is also seen in higher primates. When someone is a victim of wrongful harm, there is a need to take measures to restore the balance which has been lost. I will attempt to draw a distinction between retributivism as the term is usually understood and the application of the principle of reciprocity in criminal justice. This distinction is one that has found expression in what has become known as ‘restorative justice’ as opposed to conventional justice. There are two cardinal features of restorative justice in this context. The first is that it brings offender and victim into a relationship with the aim of repairing the harm that has been caused. The second is that it gives the offender the opportunity to give something back to his victim. I will conclude that our responses to criminal wrong-doing should be based on restorative principles and that punishment can sometimes be part of the process by which moral harm is made good. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

A considerable body of evidence now documents, beyond reasonable doubt, biological and health risk factors for crime and violence. Nevertheless, intervention and prevention efforts with offenders have avoided biological interventions, in part due to past misuses of biological research and the challenges that biological predispositions to crime raise. This article reviews the empirical literature on two biological intervention approaches, omega-3 supplementation and transcranial direct current stimulation. Emerging research on these relatively benign interventions suggests that increased omega-3 intake through dietary intervention (...) and prefrontal upregulation using non-invasive brain stimulation may show some initial promise in reducing antisocial behavior. The ethical issues related to mandated and offered biological interventions within the criminal justice system are discussed. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible (...) to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

The aim of this article is to set out a theory for treatment of criminals that rejects retributive justification for punishment; does not fall afoul of a plausible prohibition on using people merely as means; and actually works in the real world. The theory can be motivated by free will skepticism. But it can also be supported without reference to the free will issue, since retributivism faces ethical challenges in its own right. In past versions of the account I’ve emphasized (...) the quarantine analogy for incapacitation together with the value of rehabilitation and reintegration. Here I pay special attention to the permissibility and the limits of general deterrence. (shrink)

In this article, we will identify two issues that deserve greater attention from those researching lay people’s attitudes to moral responsibility and determinism. The first issue concerns whether people interpret the term “moral responsibility” in a retributive way and whether they are motivated to hold offenders responsible for pre-determined behaviour by considerations other than retributivism, e.g. the desires to condemn the action and to protect society. The second issue concerns whether explicitly rejecting moral responsibility and retributivism, after reading about determinism, (...) would have any impact on “implicit” retributivism when recommending a sentence for a hypothetical offender. We will report the results of an exploratory study that investigated these questions. Our preliminary findings raise the possibility that a significant proportion of participants either i) may not interpret “moral responsibility” in the basic, retributive sense of the term, which is at issue in the determinism debate, or ii) may be unconsciously motivated by non-retributive considerations to judge that the offender is morally responsible, in the basic, retributive sense. If this is confirmed by future research, a wider implication would be that theorists’ arguments against retributivism are more likely to affect public attitudes to punishment when non-retributive ways of achieving important punishment goals are emphasised. Our preliminary findings also suggested that explicit retributivism did not correlate with implicit retributivism. If this is confirmed in future research, it would imply that free will theorists who wish to affect public attitudes toward punishment should, when communicating their research to the public, give detailed consideration to the implications for sentencing. (shrink)

In the context of debates on psychiatry issues pertaining to moral dimensions of psychiatric health care are frequently discussed. These debates invite reflection on the question whether forensic practitioners have a role in stimulating patients’ moral development and moral growth in the context of forensic psychiatric and psychological treatment and care. We conducted a qualitative study to examine to what extent forensic practitioners consider moral development and moral growth to be a part of their current professional practices and to what (...) extent they think that stimulating moral development is a legitimate objective in the context of forensic psychiatric treatment. In addition, we asked how forensic practitioners balance pubic safety and risk management concerns with the interests and wellbeing of the individual patient. We conclude that: elements of moral development and moral growth in forensic psychiatric care practices are to a certain extent inevitable and not necessarily questionable or undesirable; yet, as in similar debates these elements need to be made explicit in order to discuss the accompanying ethical challenges and boundaries. An open academic, professional and public debate on aspects of stimulating moral betterment within current practices is therefore desirable. (shrink)

Moving beyond the retributive system requires clearing away some of the basic assumptions that form the foundation of that system: most importantly, the assumption of moral responsibility, which is held in place by deep and destructive belief in a just world. Efforts to justify moral responsibility typically appeal to some version of self-making, and that appeal is only plausible through limits on inquiry. Eliminating moral responsibility removes a major impediment to deeper inquiry and understanding of the biological, social, and environmental (...) causes of both vicious and virtuous behavior. The resources for moving beyond the moral responsibility are already being developed in social democratic corporatist cultures as well as in workplace management models that nurture commitment and reject blame and shame. Without moral responsibility we must face the unpleasant fact that although punishment is sometimes unavoidable it is always unjust. That unpleasant fact motivates difficult but beneficial changes that minimize both the extent and the severity of punitive measures. (shrink)

Biomedical interventions, such as pharmacological and neurological interventions, are increasingly being offered or considered for offer to offenders in the criminal justice system as a means of reducing recidivism and achieving offender rehabilitation through treatment. An offender’s consent to treatment may affect decisions about diversion from the criminal justice system, sentence or parole, and so hope for a preferable treatment in the criminal justice system may influence the offender’s consent. This thematic analysis of three focus group interviews conducted in Canada (...) with members of the public investigates how the public views the use of biomedical treatments within the criminal justice system, and the practice of encouraging offender consent to biomedical treatment through the hope of a reduced criminal sentence. The public focus group discussions followed a semi-structured interview guide, and were based on two hypothetical case examples involving individuals choosing whether to consent to a range of cocaine addiction or anti-libidinal treatments respectively in the hope of receiving a more lenient sentence. The discussions covered a wide range of themes, and here we present the participants’ evaluations of this type of biomedical treatment offer in light of three key theoretical sentencing objectives: the promotion of public safety, the infliction of retributive punishment, and the rehabilitation of offenders. We conclude that public safety was the predominant concern of the participants when evaluating biomedical treatment offered at the time of sentencing to offenders who had committed serious crimes. Another important observation was that the public tended to reframe and evaluate biomedical interventions in terms of retribution and punishment, rather than rehabilitation and reform. (shrink)