Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.

Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.

I propose a theory of punishment that is unfamiliar in the West, according to which the state normally ought to have offenders reform their characters and compensate their victims in ways the offenders find burdensome, thereby disavowing the crime and tending to foster improved relationships between offenders, their victims, and the broader society. I begin by indicating how this theory draws on under-appreciated ideas about reconciliation from the Global South, and especially sub-Saharan Africa, and is distinct from the (...) protection and retribution theories that have dominated the Western philosophy of punishment for about 250 years. Then I argue that it neatly avoids objections to them and is prima facie plausible in its own right. I conclude that this reconciliation theory of state punishment should be taken seriously by philosophers of law and policy makers. (shrink)

From Public Law to State Punishment: A Review of Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law.

Modern, liberal democratic states and civilized, squeamish moderns would rather avoid the sights, sounds, and smells of the body in pain. So we eliminate them where that is possible and we hide them behind the scenes when it is not. The body thus creates a problem for modern liberal state punishment, especially in the United States, where nonphysical penalties, such as fines, restitution, or compensation, are notably underdeveloped and where mass imprisonment and capital punishment dominate the penal (...) scene. The problem is that the human body is the unavoidable object of state punishment even when it is avowedly not punishment's target. It is this problem of the body, and the state's handling of it, that I would like to explore. (shrink)

Linda Radzick's new book, _The Ethics of Social Punishment_, contains an important discussion of punishment outside the context of the state. By way of celebrating this fine and welcome book, I try to probe some analytical contours concerning punishment seen from the general perspective on which Radzick and I agree. I suggest altogether abandoning the idea that (non-state) punishment needs to be inflicted by an authority. Furthermore, I insist on an account of retributivism that resists (...) the usual accusations of barbarism and bloodthirstiness. (shrink)

Hobbes believed that the state of nature would be a war of all against all. Locke denied this, but acknowledged that in the absence of government, peace is insecure. In this paper, I analyse both accounts of the state of nature through the lens of classical and experimental game theory, drawing especially on evidence concerning the effects of punishment in public goods games. My analysis suggests that we need government not to keep wicked or relentlessly self-interested individuals (...) in line, but rather to maintain peace among those who disagree about morality. (shrink)

Proponents of punishing states often claim that such punishment would not distribute to members of the state, and so it would not subject innocent citizens – those who did not participate in the crimes, or dissented, or even were among the victims – to guilt by association. This essay examines three features of state punishment that might be said not to distribute to citizens: it is burdensome, it is intentionally so, and it expresses social condemnation. Ultimately, (...) I contend that when a state is punished, the burdens do distribute to citizens as intended, condemning burdens – that is, as punishment. Thus the nondistribution of punishment thesis fails as a response to the guilt-by-association objection. (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)

Hobbes believed that the state of nature would be a war of all against all. Locke denied this, but acknowledged that in the absence of government, peace is insecure. In this paper, I analyse both accounts of the state of nature through the lens of classical and experimental game theory, drawing especially on evidence concerning the effects of punishment in public goods games. My analysis suggests that we need government not to keep wicked or relentlessly self-interested individuals (...) in line, but rather to maintain peace among those who disagree about morality. (shrink)

Despite its growing use over past decades, there has been relatively little public or scholarly discussion of life sentences that deny the possibility of parole. This essay outlines the labyrinthine legal and political developments that have rendered life imprisonment difficult to address—including the intertwined histories of the death penalty and civil death—and draws upon the life writing of those serving life to theorize a more distinct understanding of this punishment. Witnesses reveal how the possibility of life despite the impossibility (...) of parole punishes by subverting the goals of human growth and development. The potentiality of what can be done in the present grinds up against the futility of what could have been done and what could be done were release an option. Considered alongside the laws and court opinions and claims that characterize its convoluted development, these testimonies reveal this punishment’s role in the American imagination. Life without the possibility of parole reinforces and relies upon a vision that not simply some people are unable to change, but that anyone in a democracy—no matter their position—is some steps away from irretrievable exclusion. Permanent confinement denies a restorative vision of democracy: any effort to abolish or amend it must include the voices of those imprisoned. (shrink)

In this paper we assume the contours of the libertarian philosophy, its view toward the unjustified state, and, also, the punishment theory of this perspective. We address the narrow question of what punishment is justified for partaking in statist activities.

This book brings together scholarship on three different forms of state violence, examining each for what it can tell us about the conditions under which states use violence and the significance of violence to our understanding of states. This book calls into question the legitimacy of state uses of violence and mounts a sustained effort at interpretation, sense making, and critique. It suggests that condemning the state's decisions to use lethal force is not a simple matter of (...) abolishing the death penalty or – to take another exemplary example of the killing state – demanding that the state engage only in just wars, pointing out that even such overt instances of lethal force are more elusive as targets of critique than one might think. Indeed, altering such decisions may do little to change the essential relationship of the state to violence. (shrink)

"This book argues for a mixed view of punishment that balances consequentialism and retributivism. He has published extensively on philosophy and applied ethics. A central question in the philosophy of law is why the state's punishment of its own citizens is justified. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. According to consequentialism, punishment is justified when it maximizes positive outcomes. According to retributivism, criminals should be punished because they deserve it. (...) This book defends a mixed view that recognizes the strength of both of these intuitions. By this account, the legislature should develop institutional policies and statutory penalties that maintain the social order, that is, consequentialism. It establishes punishment policies to deter criminal activity. By contrast, the criminal judiciary should give individual defendants what they deserve, that is, retributivism and thus expressing the community's appropriate sense of resentment at being wronged. The book justifies the two-tiered model by showing how it accords with our moral intuitions, our assumptions about how what we know affects our moral obligations, and a commonly held theory of freedom. This approach is developed by engaging classic and contemporary work in the philosophy of law, and shows its advantages over competing approaches from contemporary retributivists and other mixed theorists. The work also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. It draws on cutting-edge criminological research to show how punishment theory can help us to address some of our most pressing social issues, including the death penalty, drug laws, and mass incarceration. The book will also be of interest to legal philosophers, social scientists, especially criminologists, sociologists, economists, and political scientists"--. (shrink)

The problem of global poverty has reached terrifying proportions. Since the end of the Cold War, ordinary deaths from starvation and preventable diseases amount to approximately 250 million people, most of them children. Thomas Pogge argues that wealthy states have a responsibility to help those in severe poverty. This responsibility arises from the foreseeable and avoidable harm the current global institutional order has perpetrated on poor states. Pogge demands that wealthy states eradicate global poverty not merely because they have the (...) resources, but because they share responsibility for its continuation. For Pogge, global poverty is more than a wrong imposed on the poor: it is a violation of human rights and a crime. In this paper, I critically examine Pogge's claim that global poverty is a crime. My aim is to demonstrate that Pogge's conclusions do not follow from his arguments. That is, if affluent states have a negative duty to assist those in severe poverty, their duty is not absolute because they are not fully responsible for this poverty. Moreover, if global poverty is one of the greatest crimes against humanity, then it seems inappropriate at best to champion proposals, pace Pogge, that lets the guilty parties walk free. (shrink)

If individual moral agents do wrong they usually deserve and are liable to some kind of punishment. But how can states be punished for failing to comply with moral duties without therewith also punishing their citizens who are not necessarily deserving of any punishment?

Retributive theories of punishment argue that punishing a criminal for a crime she committed is sufficient reason for a justified and morally permissible punishment. But what about when the state gets lucky in its decision to punish? I argue that retributive theories of punishment are subject to “Gettier” style cases from epistemology. Such cases demonstrate that the state needs more than to just get lucky, and as these retributive theories of punishment stand, there is (...) no anti-luck condition. I’ll argue that Gettier-style cases demonstrate an impermissible instance of punishment, even though they meet the conditions of retributive theories of punishment. Retributive theories are, therefore, too weak. The safety condition from epistemology provides the anti-luck condition needed for permissible punishment. I argue that two forms of retributivism, rights-forfeiture and what I call standard retributivism, are both subject to Gettier-style cases. Unlike the literature on standards of proof, this paper argues that safety is a condition on punishment itself, i.e., in all nearby possible worlds, the accuser must correctly accuse the convicted for the crime they actually committed. (shrink)

What remains anti-democratic in our criminal justice systems, and where does it come from? Geoffroy de Lagasnerie spent years sitting in on trials, watching as individuals were judged and sentenced for armed robbery, assault, rape, and murder. His experience led to this original reflection on the penal state, power, and violence that identifies a paradox in the way justice is exercised in liberal democracies. In order to pronounce a judgment, a trial must construct an individualizing story of actors and (...) their acts; but in order to punish, each act between individuals must be transformed into an aggression against society as a whole, against the state itself. The law is often presented as the reign of reason over passion. Instead, it leads to trauma, dispossession, and violence. Only by overturning our inherited legal fictions can we envision forms of truer justice. Combining narratives of real trials with theoretical analysis, Judge and Punish shows that juridical institutions are not merely a response to crime. The state claims to guarantee our security, yet from our birth, we also belong to it. The criminal trial, a magnifying mirror, reveals our true condition as political subjects. (shrink)

In a characteristically iconoclastic essay, “Does the State Have a Monopoly to Punish Crime?”, Douglas Husak argues that the state’s moral right to punish crime is all but self-evident while its supposed monopoly on punishment is a fiction. Husak draws this bracing conclusion from a modest, quasi-Lockean premise – that persons and other entities have a right to impose stigmatizing deprivations on those who wrong them. This premise evokes John Locke’s far stronger claim that everyone enjoys a (...) natural right to inflict potentially severe sanctions on any wrongdoer. The quasi-Lockean premise also evokes the familiar idea that all criminal wrongdoing is an attack on the broader community, and that law-breakers consequently owe a debt to society that they can repay through punishment. In this essay, I argue that the inferences Husak draws from the quasi-Lockean premise are unsound, but for reasons that reveal important lessons about the state’s right to punish crime and about the limits of what we can extract from the venerable idea that a central victim of criminal wrongdoing is the community as a whole. In Part II, I argue that the quasi-Lockean premise does not ground the state’s right to punish the kind of wrongs traditionally thought central to the criminal law, namely, wrongs perpetrated on individual human victims. In Part III, I answer Husak’s implicit challenge to describe a kind of stigmatizing deprivation – a kind of punishment – that the state alone has a right to inflict. I suggest that no entity but the state may inflict sanctions that constitute prima facie invasions of moral rights. (shrink)

Should the state punish its disadvantaged citizens who have committed crimes? Duff has recently argued that where disadvantage persists the state loses its authority to hold individuals to account and to punish for criminal wrongdoings. I here scrutinize Duff’s argument for the claim that social justice is a precondition for the legitimacy of state punishment. I sharpen an objection to Duff’s argument: with his framework, we seem unable to block the implausible conclusion that where disadvantage persists (...) the state lacks the authority to punish any citizen for any crime. I then set out an alternative line of argument in support of the claim that social deprivation can threaten the states legitimate punitive authority. I argue that a penal system must incorporate certain proportionality principles, and that these principles cannot both be met where citizens suffer from deprivation. (shrink)

The data were collected during 9.5 months of field work by Sarah Mathew from 2008– 2010. Participants were a representative sample of adult men reliant on nomadic pastoralism for their livelihood. We recruited them in a town close to the ethnic border frequented by nomadic Turkana who live in the surrounding 50 km radius. Recruitment was done with the help of trained local Turkana research assistants. The RA approached potential participants, briefly introduced them to the study, and then asked them (...) to participate. If they agreed, they were brought to the study site described below. We conducted the study in the town center because the risk of raids in the surrounding nomadic settlements was high. We did not recruit from the settled Turkana population in this town center as they are Turkana who have actively pursued schooling and professions outside the pastoral sector, or were forced out of subsistence pastoralism after droughts, epidemics or raids. Nomadic Turkana frequent the perimeter of the town center for a variety of reasons as it is an important trading center and is adjacent to dry season watering holes. Herders from surrounding nomadic settlements frequent the market to sell an animal and purchase tobacco, tea, sugar and flour. Turkana women come to sell milk and collect relief food. Nomadic Turkana periodically come to town to visit their settled relatives. A river runs along the perimeter of town. The wells dug in the dry bed of the river provide water for 1 surrounding nomadic settlements and so herdsmen frequently bring their livestock for watering to the perimeter of town from where we can recruit them.To ensure that our sample is representative of herders within the town perimeter on a given day, we aimed to recruit using the following procedure to the extent that circumstances allowed: First, we specified the age-group that the participant should belong to. Then the RA went to one of the locations where nomadic herders visiting town are found.. (shrink)

How should we punish criminal offenders? One prima facie attractive punishment is administering a mandatory neurointervention—interventions that exert a physical, chemical or biological effect on the brain in order to diminish the likelihood of some forms of criminal offending. While testosterone-lowering drugs have long been used in European and US jurisdictions on sex offenders, it has been suggested that advances in neuroscience raise the possibility of treating a broader range of offenders in the future. Neurointerventions could be a cheaper, (...) and more effective method of punishment. They could also be more humane. Nevertheless, in this paper we provide an argument against the use of mandatory neurointerventions on offenders. We argue that neurointerventions inflict a significant harm on an offender that render them a morally objectionable form of punishment in a respect that incarceration is not. Namely, it constitutes an objectionable interference with the offender’s mental states. However, it might be thought that incarceration also involves an equally objectionable interference with the offender’s mental states. We show that even if it were the case that the offender is harmed to the same extent in the same respect, it does not follow that the harms are morally equivalent. We argue that if one holds that intended harm is more difficult to justify than harm that is unintended but merely foreseen, this means neurointerventions could be morally objectionable in a significant respect that incarceration is not. (shrink)

Capital punishment—the legally authorized killing of a criminal offender by an agent of the state for the commission of a crime—stands in special need of moral justification. This is because execution is a particularly severe punishment. Execution is different in kind from monetary and custodial penalties in an obvious way: execution causes the death of an offender. While fines and incarceration set back some of one’s interests, death eliminates the possibility of setting and pursuing ends. While fines (...) and incarceration narrow one’s routes to happiness, death eliminates its possibility. Not surprisingly, there is much debate about the moral permissibility of capital punishment. This entry maps the terrain of this debate. The first section discusses justifications of the death penalty as they appear in major theories of punishment. The second section surveys moral objections to execution that apply to most justifications. The third addresses procedural criticisms, which do not target the morality of execution so much as the justice of its implementation. (shrink)

In this chapter I use virtue theory to critique certain contemporary punishment practices. From the perspective of virtue theory, respect for rational agency indicates a respect for choice-making as the process by which we form dispositions which in turn give rise to further choices and action. To be a moral agent one must be able to act such that his or her actions deserve praise or blame; virtue theory thus demands that moral agents engage in rational choice-making as a (...) means to develop and exercise the character traits from which culpable action issues. With respect to criminal offenders, virtue theory indicates the state is obligated to recognize offenders’ right to form their own moral character via rational choice-making, even while under state supervision. I will argue below that punishment practices should limit choice-making only to the extent necessary to achieve the functions of punishment : whenever possible, punishment should preserve opportunities for the rational exercise of character and development of virtue. This means that even within a prison setting incarcerated offenders should be able to make some choices about their daily lives. Offenders should also be offered opportunities to develop virtuous traits through rehabilitative programming such as drug addiction treatment, educational programming, and job training. I will also argue that two contemporary punishment practices unjustly undermine an offender’s moral agency. The first is the overuse of isolation sanctions, which very severely limits offender choice-making. The second is chemical castration, which results in limiting an offender’s capacity to develop his character within a specific realm of choice-making. I conclude that these two punishments violate offenders’ moral agency, and that this violation cannot be justified by appeal to the aims of incapacitation, deterrence, retribution, and rehabilitation. (shrink)