In the 1970s and 1980s, a handful of legal theorists addressed the problem of criminal justice for offenders who faced criminogenic social disadvantages. Their discussions were provocative but alternatively unpersuasive and underdeveloped. More recently, in the wake of mass incarceration in America, philosophers have put forth new analyses that make important headway but remain scattered, partial, and in need of a systematic and integrated review. In this article, I reconstruct and critique the most prominent and well-developed explanations yet offered of (...) the distinctive moral problems that offenders’ criminogenic social disadvantages may pose for criminal justice. I conclude that some views are misguided, others are unduly limited, and one – based on the ideals of fair opportunity to avoid crime and punishment – is particularly promising but as yet underdeveloped. (shrink)

Retributivism is often portrayed as a rights-respecting alternative to consequentialist justifications of punishment. However, I argue that the political legitimacy of retribution is doubtful precisely because retribution privileges a controversial conception of the good over citizens’ rights and more widely shared, publicly accessible interests. First, even if retribution is valuable, the best accounts of its value fail to show that it can override or partially nullify offenders’ rights to the fundamental forms of liberty of which criminal punishment paradigmatically deprives them. (...) Second, the importance of publicly justifying basic forms of coercion on the basis of broadly shared values is a good reason to think that the state should not punish for retribution even those citizens whose actions have created a state interest in punishing them that overrides or partially nullifies their presumptive rights. (shrink)

Equally conversant in the tradition of black American thought and contemporary Anglo-American political philosophy, Tommie Shelby is one of those rare scholars.

It is often thought that an agent is blameworthy only for wrongdoing she had a fair opportunity to avoid. However, in this article, I defend the thesis that there is a form of culpability for wrongdoing—exemplified by criminal guilt—that it is possible to accrue even for wrongdoing one lacked a fair opportunity to avoid. If I am right that criminal guilt, properly conceived, is not something everyone necessarily has a fair opportunity to avoid, an offender’s lack of fair opportunity to (...) avoid her guilt would appear to be an important potential ground for mitigation at sentencing. Hence, the thesis of this article may point the way toward a novel explanation of a moral intuition that a coterie of moral, political, and legal theorists has for decades sought but struggled to vindicate: the intuition that offenders who have suffered from various social disadvantages should receive less punishment for their crimes, even when those crimes are not morally justified or excused. (shrink)

Mitigating factors may seem either to be partially exculpatory factors considered at sentencing or else disparate reasons of public policy other than a defendant’s diminished culpability why he should be punished less harshly. I argue, however, that there is a set of factors at the core of mitigation that are distinct from partially exculpatory factors, yet do not encompass just any non-exculpatory factor relevant to sentencing. Mitigating factors of this undertheorized kind do not diminish a defendant’s culpability. But they are (...) more than mere reasons to mitigate his punishment. They are factors that strengthen his complaint against punishment, thereby giving him a claim to mitigation—even if not a moral or legal right to it. Hence, there are three types of mitigating factors: partially exculpatory mitigating factors, mere public policy reasons for mitigation, and defendant claims to mitigation without exculpation. (shrink)

It is a testament to the progress of empirical inquiry into mass incarceration that it has already yielded and transcended a “standard story.” By contrast, mass incarceration is only just beginning to emerge as a particular problem for the philosophy of punishment. In this chapter, Ewing offers a critical review of recent work by criminal law theorists, arguing that traditional justifications of punishment are ill-equipped to explain the distinctive injustice of mass incarceration. He then argues that the problem of mass (...) incarceration should force us to reconsider neglected distributive dimensions of criminal justice. And he begins to reflect on what appears unjust about mass incarceration when criminal justice is reconceived as the problem of how to produce and fairly allocate security against crime and punishment. (shrink)