Over the past ten years or so, there has been a renewed interest in the moral education theory of punishment. The attractions of the theory are numerous, not least of which is that it offers hopes for a breakthrough in the apparently intractable debate between deterrence theorists and retributivists. Nevertheless, I believe there are severe problems with recent formulations of the theory. First, contemporary educationists all place great emphasis on autonomy, yet fail to show how continued respect for autonomy is (...) compatible with achievement of their stated punitive goals. Second, educationists have, and possibly must, take incarceration as the best available punitive sanction. Yet it is unclear how morally educative such a punishment will be. Third, contemporary educationists view punishment as a benefit to be conferred on an offender. But educationists have not succeeded in arguing that society is obligated to confer such benefits, nor have they adequately defended the Platonic moral psychology necessary to show that moral education is always a benefit to justly punished offenders. Fourth, contemporary educationists are hopeful that an indeterminate sentencing policy can be avoided, but I argue that such a policy is an ineliminable component of an educationist justification of punishment. Finally, I raise some doubts about the scope that educationist goals ought to have in any comprehensive theory of punishment. (shrink)

Negative retributivism is the view that though the primary justifying aim of legal punishment is the reduction of crime, the state's efforts to do so are subject to side-constraints that forbid punishment of the innocent and disproportionate punishment of the guilty. I contend that insufficient attention has been paid to what the side-constraints commit us to in constructing a theory of legal punishment, even one primarily oriented toward reducing crime. Specifically, I argue that the side-constraints limit the kinds of actions (...) that are appropriately criminalised, the kinds of beings who are appropriately liable to legal punishment, and the absolute and comparative severity of sanctions. I also argue that a third retributive constraint is needed, one which I term a ‘non-degradation constraint’. According to this third constraint, in our efforts to reduce crime, we must avoid treating offenders as non-moral beings and ensure that punishment does not atrophy or erode the complex capacity for moral responsibility. When this third constraint is combined with the persuasive instrumental case for promoting the moral responsiveness of offenders, the result is an approach to crime reduction that is quite different from ones which emphasise general deterrence and incapacitation. In the closing section, I broach the question whether negative retributivism has been appropriately characterised in the literature on legal punishment. (shrink)

This paper develops a retributivist argument for leniency in punishment. It argues that even retributivists who defend desert-based punishment have a reason, internal to their view, to prefer more lenient over more severe punishments when there are doubts concerning how much punishment an offender deserves. This is because retributivists should take an asymmetrical view to underpunishment and overpunishment, and because the likelihood of overpunishment goes up with the severity of punishment. The radicalness of the ensuing leniency depends on the strength (...) of the asymmetry in value between underpunishment and overpunishment. (shrink)

I defend a form of preventive detention through the creation of an offence of ‘being a persistent violent dangerous offender’. This differs from alternative proposals and actual habitual offender laws that impose extra periods of incarceration on offenders after they have completed the sentence for their most recent crime or as a result of a certain number of prior convictions. I, instead, would make ‘being a persistent violent dangerous offender’ an offence itself. Persons to be preventively detained would be tried (...) and convicted of this offence. My approach would then have one significant advantage: provided the elements of being a PVDO could be rendered sufficiently determinate, punishing persons under such an offence would comport with central rule of law values, most importantly legality and fair notice, as well as principles of proportionality in sentencing. (shrink)

In the classic abolitionist text, Prison on Trial, Thomas Mathieson argues that imprisonment cannot be justified by appeal to any standard punitive aim: rehabilitation, deterrence, incapacitation, or retribution. The aim of this paper is to give prison an ‘appeal hearing’: to examine whether it can be justified by a set of punitive aims not considered by Mathieson. In particular, it asks whether imprisonment can be justified by the ‘communicative’ theory of punishment proposed by Antony Duff. Duff sees imprisonment as having (...) an important role in a properly ‘communicative’ system of criminal justice: to serve as the ultimate sanction for offenders who fail to comply with other forms of punishment; to shock offenders into repentance for their crimes; and to communicate to offenders in a symbolically appropriate way the seriousness of their offence. This paper argues that each of Duff’s rationales fails: using prison as an ultimate sanction violates the communicative principle of treating offenders as responsible moral agents; the evidence suggests that prison will impede rather than facilitate repentant understanding; and while prison might be able to express censure, it is not rationally connected to enabling a meaningful moral dialogue. As such, it concludes that this particular appeal hearing for imprisonment fails. (shrink)

This paper discusses whether the collateral harm of imprisonment to the close family members and children of prison inmates may give rise to special moral obligations towards them. Several collateral harms, including decreased psychological wellbeing, financial costs, loss of economic opportunities, and intrusion and control over their private lives, are identified. Two competing perspectives in moral philosophy are then applied in order to assess whether the harms are permissible. The first is consequentialist and the second is deontological. It is argued (...) that both of them fails and therefore it is hard to defend the position that allowing for these harms would be morally permissible, even for the sake of the overall aims of incarceration. Instead, it is argued that these harms imply that imprisonment should only be used as a last resort. Where it is necessary, it should give rise to special moral obligations. Using the notion of residual obligation, these obligations are defended, categorized and clarified. (shrink)