This chapter contains sections titled: Why We Punish How We Punish What We Punish Whom We Punish Bibliography.

Sometimes persons are legally responsible for reckless behavior that causes criminal harm. This is the case under the newly drafted provisions of the U.S. Model Penal Code (MPC), which holds persons responsible for “simple” rape (nonconsensual sex without proof of force or threats of force), where the offender recklessly disregards the risk that the victim does not consent. In this paper we offer an explanation and corrective critique of the handling of reckless rape cases, with a focus on the (...) U.S. criminal justice system, although our analysis is applicable more broadly. We argue that a wider group of reckless rapists are criminally responsible than is captured by the MPC and claim criminal punishment of reckless rapists must be justified by looking to both moral desert and instrumental aims achieved by criminal punishment. Part of the law’s job is to communicate and enforce society’s expectations regarding unacceptable behavior. In punishing reckless rape, we are not just giving people what they deserve, but also reinforcing and shaping norms regarding sexual behavior. (shrink)

In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or (...) she could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime. (shrink)

@FP=Punishment in the contemporary United States is a massive and costly enterprise. As of 2001, approximately 5.6 million living adult residents of the United States had served time in a federal or state prison. In that same year, federal, state, and local governments in the United States spent $57 billion punishing these individuals, which does not include $72 billion to provide police protections and $38 billion to maintain the court system. An American resident is more than eight times more likely (...) to be incarcerated than a German resident and nearly nineteen times more likely than a Japanese resident. Despite the fact that our incarceration rates are so disproportionately high when compared to rates of other wealthy democracies, we suffer far more violent crime per capita than similar nations. In 2001, the reported offense rate per 100,000 for homicide in the United States was 5.6 while in Germany the rate was 3.23. For rape, the numbers are more disproportionate, with 31.8 in the U.S. compared with 10.45 in Germany. The comparison with Japan is still more dramatic, with Japanese homicide rates at 1.10 and rape rates at 1.85 per 100,000. The United States invests more in punishment than any other nation–both in terms of financial expenditure and the loss of freedom for millions of convicts–yet this price does not appear to result in a safer society. Given this, we must ask fundamental questions regarding punishment: What justifies punishment? What are the objectives of punishment? How should we accomplish those objectives? How important are those objectives when compared with other objectives, such as personal liberty? Imagine, for example, that we retained all of our current laws but one punishment applied for violating any of them: regardless of whether you were convicted of murder or exceeding the speed limit, you would be executed. Surely we could all be more confident that such a threat would reduce criminal activity, but with this security would come the anxiety that you or a loved one would be killed for committing a minor offense.. (shrink)

As the crime rate rises and attempts to rehabilitate criminals prove unsuccessful, attacks upon recent reforms in our handling of crime increase. In this book van den Haag offers both a theory of punishment which supports traditional penal policies and factual data which show the failure of recent reforms. van den Haag claims that the main purpose of a legal system is to preserve order but that not every system that does this is acceptable. Along with preserving order, a legal (...) system should also be retributively just, i.e., punish those and only those who deserve it, because only such a system will gain public support. Although van den Haag does not present an original thesis on the moral justification of punishment, he covers many important issues in a lucid fashion, argues forcefully for his views, and presents some new arguments. In his discussion of our legal system’s exclusion of illegally obtained evidence, he argues that such evidence should be admissible in court since the misconduct of the police is irrelevant to the guilt or innocence of the accused. If the police obtain evidence illegally, then they should be punished rather than society harmed by allowing the guilty to go free. In defending the death penalty, van den Haag contends that it is the opponents of the penalty’s effectiveness as a deterrent who have the burden of proof. Since, other things being equal, increasing the severity of the penalty decreases the incidence of various crimes, it must be assumed that the incidence of any crime can be decreased by increasing the severity of the punishment. Thus, without clear evidence to the contrary, the death penalty would have to be deemed likely to have a deterrent effect. The factual data presented by van den Haag is interesting and one recent experiment he discusses has produced particularly surprising results. This experiment on student cheating showed that the threat of punishment was effective in producing the desired behavior, but that exhortations to be honest were counterproductive.—M.G. (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)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of (...) proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

This Article argues that just as the act of forcing sex upon a rapist is itself rape, the execution of a murderer is itself murder. Part I clears the way by defeating three simple, but common, arguments that capital punishment is not murder. Part II shows that despite moral theorists' best attempts to show otherwise, executions seem to instantiate all the morally relevant properties of murder. Part III notes a lacuna in the literature on capital punishment: Even if there (...) is a good moral reason to execute murderers, the distinction between capital punishment and murder requires a plausible account of the state's right to execute citizens. We have no such account. (shrink)

A new approach to sentencing Not Just Deserts inaugurates a radical shift in the research agenda of criminology. The authors attack currently fashionable retributivist theories of punishment, arguing that the criminal justice system is so integrated that sentencing policy has to be considered in the system-wide context. They offer a comprehensive theory of criminal justice which draws on a philosophical view of the good and the right, and which points the way to practical intervention in the real (...) world of incremental reform. They put the case for a criminal justice system which maximizes freedom in the old republican sense of the term, and which they call `dominion'. (shrink)

A new approach to sentencing Not Just Deserts inaugurates a radical shift in the research agenda of criminology. The authors attack currently fashionable retributivist theories of punishment, arguing that the criminal justice system is so integrated that sentencing policy has to be considered in the system-wide context. They offer a comprehensive theory of criminal justice which draws on a philosophical view of the good and the right, and which points the way to practical intervention in the real (...) world of incremental reform. They put the case for a criminal justice system which maximizes freedom in the old republican sense of the term, and which they call `dominion'. (shrink)

This article addresses the question what—if anything—we can and should expect from the practice of international criminal justice. It argues that neither retributive nor purely consequentialist, deterrence-based justifications give sufficient guidance as to what international criminal courts should aim to achieve. Instead, the legal theory of expressivism provides a more viable guide. Contrary to other expressivist views, this article argues for the importance of the trial, not just the punishment, as a form of expressivist messaging. Specifically, we (...) emphasize the communicative aspect of the judicial process. The final section, acknowledging the limited success of international criminal justice so far in terms of fulfilling its expressivist potential, diagnoses the main obstacles to, and opportunities for, expressivist messaging in the contemporary practice of international criminal justice. (shrink)

The paper criticizes criminal law scholarship for helping to construct and failing to expose analytic structures that falsely claim a higher level of rationality and coherence than current criminal law theory deserves. It offers illustrations of three such illusions of rationality. First, it is common in criminal law discourse for scholars and judges to cite any of the standard litany of "the purposes of punishment" -- just deserts, deterrence, incapacitation of the dangerous, rehabilitation, and sometimes other (...) purposes -- as a justification for one or another liability rule or sentencing practice. The cited "purpose" gives the rules an aura of rationality, but one that is, in large part, illusory. Without a principle defining the interrelation of the "purposes," nearly any rule can be justified by some "purpose of punishment." Thus, a decision maker can switch among distributive principles as needed to provide an apparent rationale for whichever rule the person prefers, even if that preference is not based on rational criteria. A second example is found in a central mechanism for determining an offenderâs blameworthiness: the use of an individualized objective standard. The widely used mechanism avoids the problems acknowledged to attend a strictly objective standard. A person's situation and capacities are central to an assessment of whether a person can be fairly blamed for a violation, and the individualized objective standard allows the decision maker to take these into account. At the same time, the mechanism avoids reversion to a completely subjective standard, which might exempt many blameworthy cases from liability. In reality, however, the mechanism only shifts the form of the problem. Codes that use the individualized objective standard fail to provide a principle by which one can determine those characteristics of an offender with which the objective standard ought to be individualized and those with which it ought not. Without a governing principle, the issue again is left to the discretion of decision makers, with no guidance as to how that discretion is to be exercised. A final illusion obscures whether the criminal justice system is, in fact, in the business of "doing justice." The "criminal justice" system imposes "punishment" and encourages moral condemnation of those found "guilty" of "crimes." But while the system cultivates its doing-justice image, it increasingly shifts to a system of essentially preventive detention, where a violator's sanction is derived more from what is needed to incapacitate him from committing future offenses than to punish him for a past offense. There are great advantages to the deception, but also serious costs and inefficiencies. The paper discusses why some illusions are more objectionable than others and what the existence of such illusions says about modern criminal law scholarship. (shrink)

This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until recently, both concepts were (...) considered to be more or less interchangeable. But there is a growing movement, which I refer to as "responsibility skepticism," which maintains that moral responsibility is either physically or metaphysically impossible. If the responsibility skeptics are right (that moral responsibility is impossible), then what are the implications for criminal responsibility and just criminal punishment? Should we abandon these as well? Or can they survive without moral responsibility? I try to answer these questions. -/- The third part addresses social causation. The criminal justice system tends to be "dispositionalist"; it tends, that is, to assume that criminal responsibility resides entirely within the defendant. Dispositionalism, however, overlooks the fact that who we are and what we do are significantly determined by environmental influences. I then try to show that this "situationist" alternative to dispositionalism should not radically alter our approach to criminal punishment. -/- The final part briefly discusses the difficulty in evaluating criminal responsibility when the defendant is both an offender and a victim - especially when the defendant is an offender *because* of his victimization. (shrink)

Background COVID-19 has greatly impacted the health of incarcerated individuals in the US. The goal of this study was to examine perspectives of recently incarcerated individuals on greater restrictions on liberty to mitigate COVID-19 transmission.Methods We conducted semi-structured phone interviews from August through October 2021 with 21 people who had been incarcerated in Bureau of Prisons (BOP) facilities during the pandemic. Transcripts were coded and analyzed, using a thematic analysis approach.Results Many facilities implemented universal “lockdowns,” with time out of the (...) cell often limited to one hour per day, with participants reporting not being able to meet all essential needs such as showers and calling loved ones. Several study participants reported that repurposed spaces and tents created for quarantine and isolation provided “unlivable conditions.” Participants reported receiving no medical attention while in isolation, and staff using spaces designated for disciplinary purposes (e.g., solitary housing units) for public health isolation purposes. This resulted in the conflation of isolation and discipline, which discouraged symptom reporting. Some participants felt guilty over potentially causing another lockdown by not reporting their symptoms. Programming was frequently stopped or curtailed and communication with the outside was limited. Some participants relayed that staff threatened to punish noncompliance with masking and testing. Liberty restrictions were purportedly rationalized by staff with the idea that incarcerated people should not expect freedoms, while those incarcerated blamed staff for bringing COVID-19 into the facility.Conclusions Our results highlighted how actions by staff and administrators decreased the legitimacy of the facilities’ COVID-19 response and were sometimes counterproductive. Legitimacy is key in building trust and obtaining cooperation with otherwise unpleasant but necessary restrictive measures. To prepare for future outbreaks facilities must consider the impact of liberty-restricting decisions on residents and build legitimacy for these decisions by communicating justifications to the extent possible. (shrink)

Criminal responsibility refers to a person’s ability to understand his action, behavior at the time a crime is committed, what a person is thinking when he commits a crime or the expected result when a crime is committed. Crime is defined in terms of an act or omission (actus reus) and a mental state (mens rea). In this paper, is presented the general concept of irresponsibility and essentially reduced responsibility as a reason to be exempted from the punishment (...) provided by the Criminal Code. Any perpetrator of a criminal offense who is capable of undertaking any action can be an active subject of a criminal offense, with the fact that regarding their sanctioning by the criminal system is concerned there are some restrictions related to age as well as dividing the perpetrators into responsible and non-responsible ones. For a person to be convicted of a crime, there must be evidence that proves his guilt, and that proves whether the perpetrator was in a regular state of mind or committed the criminal offense due to his irresponsibility. Another important element of this scientific paper is the historical aspects of how irresponsibility has been treated from the customary law to the present day, a huge focus gets also the treatment of the biological-psychological concept on one hand and the treatment of the legal concept on the other hand for this category of people. A criminal defendant who turns out to have been incapacitated at the time he committed a crime may be acquitted because of his incapacity, or he may be sentenced leniently because he was unable to understand the importance of his actions. Legally, the defendant must prove and convince the court that he was not able to understand his actions, or he is not able to distinguish right from wrong, or he must prove that he committed the act in uncontrolled impulses. (shrink)

Empirical research has distinguished moral judgments that focus on an act and the actor’s intention or mental states, and those that focus on results of an action and then seek a causal actor. Studies indicate these two types of judgments may result from a “dual-process system” of moral judgment (Cushman 2008, Kneer and Machery 2019). Results-oriented judgements may be subject to the problem of resultant moral luck because different results can arise from the same action and intention. While some argue (...) luck should not bear on persons’ culpability, Victor Kumar has argued that the tendency to hold unlucky agents responsible for harm is justified by consequentialist aims of punishment (Kumar 2019). In contrast, judgments that focus on acts and intentions may be primarily retributive. Kumar claims that judgments focused on results track external, public harm because this increases the reliability of punishment and better achieves instrumental aims, including deterrent effect. In this chapter I examine rape cases using Kumar’s theory of punishment. Rape involves outcomes that are not publicly available. If judgments of punishment depend on outcomes, then we would expect such judgments to be less stable for those instances of wrongdoing that lack public outcomes such as rape, because such judgments would rely instead on often biased and unreliable inferential processes to establish the presence of mental states, which are essentially private. In this way Kumar’s theory actually predicts the way in which we see criminal justice institutions fail with regard to arrest, prosecution, and punishment related to rape; and we might expect similar failures for other crimes that lack publicly available results. In sum, a fundamental problem with institutionalized punishment centered upon results may be that some crimes sit within a moral blindspot. (shrink)

How can a state be morally justified in punishing some of its citizens? In tackling this I shall set aside three important matters: we do not morally approve of all the laws of the land, so that sometimes there is a legal but not a moral case against an offender; we can do more things about crime than just punish the criminals, for example remedying the familial and social conditions that encourage it; and, thirdly, many actual penal institutions do (...) things to convicts that are indefensible by any decent standard. My topic may be humanly less important than any of those three; but I want to discuss it and not them. Like many others, I hold that the punishment is justified only to the extent that it does good, that is, leads to a better over-all state of affairs than would have obtained otherwise. Some versions of this view, however, assign to doing-good a role in which it swamps other considerations which most of us think are also essential to a defensible penal system. My aim in this paper will be remedy this defect - to reconcile a doing-good justification with the rest of what we think about punishment. The fear that this cannot be done has led some to question whether our having penal systems and procedures does any good. Jacobs may be right in stressing how hard it is to discover what the consequences are of any given system of punishment (1999: 540), but it would be lamentable if that led us to omit doing-good from our view of what justifies punishment. I shall return to this topic at the end of Section 7, offering to relieve Jacobs of his fears. I usually think of the good that punishment can do in terms of the deterrence of potential offenders - the punished person or others who learn about his punishment. In all the uncertainty about what our penal procedures achieve, it seems certain that they have a deterrent effect without which our society would be lost. There are other possible goods: making the convict a better person; placating victims and their kin; increasing our sense of the majesty and importance of the law; and so on.. (shrink)

Kant maintains that retribution is the only morally sound justification for criminal punishment. He claims that all just criminal punishment must conform to the “principle of equality,” an inflexible juridical rule which takes the form of a categorical imperative. Focusing on his further claim that the principle of equality establishes that capital punishment is the only suitable punishment for murder, I question Kant’s contention that the principle of equality is a categorical imperative. Following two lines of inquiry (...) drawing upon the nature of a categorical imperative, I suggest that the principle of equality is a principle conditioned by experience, a hypothetical imperative which Kant only shows to be consistent with, not necessarily mandated by, the idea of a just civil state. (shrink)

Suffering is a central component of our lives. Our bodies break and become diseased. Our feelings get hurt, loved ones die, our goals are frustrated, our expectations are not met. It is a commonplace to think that suffering is, all and everywhere, bad. But might suffering also be good? If so, in what ways might suffering have positive, as well as negative, value? The papers collected for the this volume are original works by experts in a variety of disciplines that (...) address questions about the nature and value of suffering, its relation to other mental states and capacities, and to vital questions in ethics, theology, and aesthetic. This chapter examines the nature and value of emotions suffering in criminal punishment: what is emotional suffering, and can it be justified as as a form of legal punishment? (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Mill on Capital Punishment-Retributive Overtones?Michael ClarkI.In his famous parliamentary speech of 18681 Mill defends the retention of capital punishment for the worst murderers on the Benthamite grounds of frugality and exemplarity.2 Punishment being an intrinsic "mischief," it should be no more severe than it needs to be to achieve its desired effect, principally that of deterring others from crime. That effect can be achieved more economically if the suffering (...) appears greater than it really is. Execution, Mill thinks, is less cruel than the alternative of life imprisonment with hard labour,3 for the offender would have died anyway sooner or later, probably in greater pain. It is also the most impressive way of punishing murder, since it closely resembles the offence. The more a penalty impresses itself upon people's minds the more likely it is to deter. And, as Bentham said, "exemplarity tends to increase the apparent, frugality to reduce the real [suffering]."4But the language Mill uses has seemed to import non-utilitarian, quasi-retributive elements into his thought. Thus Tom Sorrell says, "He brings in the appropriateness of execution to certain offences. The argument from appropriateness, if it is not retributivist, is at least consistent with retributivism, and has whatever intuitive appeal attaches to punishing purely on account of guilt."5 Is this perhaps another of those non-utilitarian elements in Mill's philosophy that many commentators have, rightly or wrongly, claimed to detect, like the supposed tension between the Principle of Utility and Mill's regard for the value of liberty? I shall argue, however, that it is a mistake to interpret Mill's remarks in a retributive way. [End Page 327]The critical passage is:[I]t appears to me that to deprive the criminal of the life of which he has proved himself unworthy—olemnly to blot him out from the fellowship of the living—is themost appropriate, as it is certainly the most impressive, mode in which society can attach to so great a crime the penal consequences which for the security of life it is indispensable to annex it.6The italicised phrases are those responsible for the retributive impression, particularly "the most appropriate." Is Mill here falling back on the idea that the criminal should receive a penalty which fits the crime because he has made himself worthy of it?Originally, Mill had opposed capital punishment, and, though he did allow that there might possibly be "atrocious crimes" against which it was the only effective deterrent, he doubted whether there were any such cases. "I have therefore always been favourable to the entire abolition of capital punishment, though I confess I do not attach much importance to it in the case of the worst criminals of all," he wrote in an 1841 letter to Robert Barclay Fox (CW XIII: 474). It is evident that he is making the usual assumption that the death penalty is more severe than life imprisonment. As a utilitarian, he could countenance the death penalty only if it were "the only effective deterrent" against aggravated murder.By the time of the Parliamentary Speech he had changed his mind about the relative severity of execution and life imprisonment. Execution was swift and generally less painful than the death the murderer would otherwise eventually face. The alternative was to immure "him in a living tomb, there to linger out what may be a long life in the hardest and most monotonous toil... cut off from all earthly hope" (CW XXVIII: 268). Life imprisonment seemed milder only because the suffering was at no time "of terrifying intensity."Indeed Bentham had made the same point about the exemplarity of capital punishment, which was "of all punishment, of the greatest apparent magnitude, the most impressive and the most exemplary" while being "less rigorous than it appears to be," and he noted that it was "often more gentle than natural death."72.Mill, of course, inherited his theory of punishment from Bentham, whom he regarded as leaving the theory nearly complete,8 and the consequentialist stance is clear from his early writings:The only right by which society is warranted in inflicting pain upon any... (shrink)

This paper is meant to show why the introduction of probation in the capital punishment act of the new Code of Criminal Law is a change we should appreciate. This change will expectedly lead Indonesia to be a nation that de facto no longer employs capital punishment. This is a desirable consequence given that, in my view, capital punishment cannot be ethically justified. In this paper, I will show why arguments in defense of capital punishment by appealing to the (...) deterrence effect, the risk of recidivism, the sense of justice, and the principle of retributive justice do not stand up to scrutiny. The irreversible nature of capital punishment further points to the unjustifiability of this form of punishment. Abstrak Tulisan ini hendak menunjukkan mengapa diintroduksikannya masa percobaan dalam pasal hukuman mati KUHP terbaru merupakan perubahan yang layak diapresiasi. Perubahan tersebut berpotensi mengantar Indonesia menjadi negara yang de facto tidak lagi menerapkan hukuman mati. Menurut penulis, konsekuensi semacam ini layak disambut baik lantaran hukuman mati itu sendiri secara etis tidak dapat dibenarkan. Dalam tulisan ini, penulis akan menunjukkan mengapa argumen-argumen yang ditujukan untuk menjustifikasi hukuman mati dengan merujuk pada efek jera, risiko residivis, rasa keadilan, dan prinsip keadilan retributif tidak dapat dipertahankan. Sifat hukuman mati yang tidak membuka ruang bagi koreksi yang berarti juga meneguhkan tidak dapat dibenarkannya bentuk hukuman tersebut. Kata-kata Kunci: hukuman mati, KUHP, efek jera, keadilan retributif, ruang koreksi. (shrink)

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly (...) criminally liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. -/- Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime. (shrink)

The age-old debate about what constitutes just punishment has become deadlocked. Retributivists continue to privilege desert over all else, and consequentialists continue to privilege punishment's expected positive consequences, such as deterrence or rehabilitation, over all else. In this important intervention into the debate, Leo Zaibert argues that despite some obvious differences, these traditional positions are structurally very similar, and that the deadlock between them stems from the fact they both oversimplify the problem of punishment. Proponents of these positions (...) pay insufficient attention to the conflicts of values that punishment, even when justified, generates. Mobilizing recent developments in moral philosophy, Zaibert offers a properly pluralistic justification of punishment that is necessarily more complex than its traditional counterparts. An understanding of this complexity should promote a more cautious approach to inflicting punishment on individual wrongdoers and to developing punitive policies and institutions. (shrink)

Drawing upon empirical studies of racial discrimination dating back to the 1940’s, the Movement for Black Lives platform calls for the abolition of capital punishment. Our purpose here is to defend the Movement’s call for death penalty abolition in terms congruent with its claim that the death penalty in the U.S. is a “racist practice” that “devalues Black lives.” We first sketch the jurisprudential history of race and capital punishment in the U.S., wherein courts have occasionally expressed worries about racial (...) injustice but have usually taken such evidence to warrant reform but not outright abolition. We argue that the racial discrimination at issue flows in significant part from implicit biases concerning race, criminality, and violence, which do not fit comfortably within the picture of racial bias advanced by the courts. The case for abolition, we contend, rests on Black Americans as a class (not merely those who interact with the criminal justice system as capital defendants or as murder victims) being subject to such bias and thereby not being accorded equal status under the law. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

A man, carrying a gun in his waistband, robs a food vendor. In making his escape, the gun discharges, critically injuring the robber. About such instances, it is common to think, “he got what he deserved.” This Article seeks to explore cases like that—cases of “natural punishment.” Natural punishment occurs when a wrongdoer faces serious harm that results from her wrongdoing and not from anyone seeking retribution against her. The Article proposes that U.S. courts follow their peers and recognize (...) natural punishment as genuine punishment for legal, specifically constitutional, purposes. Were U.S. courts to do so, they would need to reduce the amount of punishment they would otherwise bestow on wrongdoers upon conviction if a natural punishment has occurred or foreseeably will occur. A handful of foreign jurisdictions already accept something like this Article’s proposal, but natural punishment has no formal legal recognition in the United States. The goal of this Article is twofold: first, it offers a rigorous and defensible definition of natural punishment by distinguishing it from nearby notions and dispelling any association with supernatural ideas; second, it demonstrates that recognizing natural punishment as genuine punishment will not much disturb existing American legal institutions and understandings. -/- As an added bonus, the concept of natural punishment can be employed to solve a longstanding problem in criminal law theory, the Mystery of Credit for Time Served. The Mystery surrounds the common practice of giving prisoners credit toward their prison sentences for their time served in jail awaiting trial. The Mystery poses a dilemma about whether the detention time was punishment: If it was punishment, then the detainee was punished before trial in violation of Due Process; however, if the time was not punishment, there is no reason to discount the prison sentence. Seeing the time in detention as an instance of natural punishment resolves the Mystery. (shrink)

The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified (...) malum prohibitum the wrongness of which resides in its being a violation of a justified immigration regulation; according to the third, IM is a malum in se the wrongness of which resides in its harmful consequences for receiving states’ citizens. My thesis is that none of these arguments succeeds in providing us with sufficiently good reasons to justify the use of criminal punishment to enforce the closure of state borders. As regards the first, I argue that it relies on a misleading conception of what is entailed by states’ territorial sovereignty, and that therefore it is unsound as an argument for the state’s right to control immigration. With regard to the second, I argue that, be they legitimate or not, immigration regulations enacted by states cannot provide those would-be immigrants they aim to exclude with content-independent reasons to comply with them; and this is a necessary pre-condition to conclude that IM is a justified malum prohibitum. As regards harm-based approaches, I argue that the notions they rely on are completely unfit as criteria for criminalization. This leads me to the conclusion that, unless other more convincing arguments are provided for, IM should not be criminalized. (shrink)

Some jurisdictions acknowledge, as a matter of positive law, the relevance of evil to capital punishment. At one point, the state of Florida counted that the fact that a murderer’s crime was “especially wicked, evil, atrocious or cruel” as an aggravating factor for purposes of capital sentencing. I submit that Florida may be onto something. I consider a thesis about capital punishment that strikes me as plausible on its face: if capital punishment is ever morally permissible, it is permissible as (...) a response to evil. Call this the Punishment as a Response to Evil thesis, or PRE. If capital punishment is not morally permissible as a response to evil, then, according to PRE, it is not morally permissible, period. PRE admits of at least two different readings: on the first, if capital punishment is ever morally justified it is justified as a punishment for evil crimes; on the second, if capital punishment is ever morally justified it is justified as a punishment for evil people. While this first version of PRE has found advocates in both philosophy and forensic psychiatry, I argue against this first reading of PRE and for the second. To secure this conclusion I appeal to an account of evil and evil personhood that I have developed elsewhere. (shrink)

What is a crime? A common answer is that crimes are harms. One particular argument is that morality forms the connection between crimes and harms: crimes are not any kind of harm, but specifically a kind of immorality. This position is consistent with natural law jurisprudence which claims that law and morality are inseparably linked. It is also consistent with standard defences of retribution whereby punishment is justified where deserved and to the degree deserved. Retributivist desert is present for individuals (...) that possess some degree of moral responsibility for causing or attempting to cause evil. For example, the murderer deserves severe punishment because he is morally responsible for another person’s death and this act is sufficiently evil to warrant severe punishment. -/- The idea that crimes are harms to morals — and so their immorality informs their criminality and the corresponding severity of punishment — has also found favour with so-called ‘expressivist’ theories of punishment defended by Joel Feinberg, Antony Duff and others. These theories argue that punishment has an expressivist function of communication public disapproval to criminal offenders for their moral wrongdoings where punishment is proportionate to immorality. -/- The justification of crimes as harms to morals is part of a venerable tradition that has come to be increasingly seen as discredited. Most academics working in law (and even more practising lawyers) reject natural law jurisprudence and support some version of the separability thesis of legal positivism where law and morality are held to be separable, but not intrinsically and necessarily linked. Yet, curiously, retributivist theories, including expressivism, have been on the ascendency with a growing number of legal philosophers defending the idea of crimes as harms to morals and, therefore, moving in a contrary direction to most others working in law and academic law. -/- I believe this general position is deeply problematic and should be rejected. This chapter focuses specifically on expressivist theories as the increasingly more popular variant of retributivism in academic circles today. The next section provides an overview of expressivism. The following sections argue that it is not compelling both as a view about the criminal law, but also as a theory about punishment. I close the chapter with ideas about criminal harms might be better understood. I argue that crimes might be a kind of harm, but not the kinds of harm endorsed by retributivists and, more specifically, expressivists. (shrink)

This article analyses the concept of punishment. This concept can be analysed as a normative, retributive concept ; however, a justificatory neutral and formal analysis is also available . Analysing punishment is important, particularly because legislators around the world have shown a tendency to circumvent the criminal law regime simply by claiming that a certain imposition of harm does not constitute punishment. The imposition is said to be a measure or an order and as such there is no need (...) for it to be governed by the principles of the criminal law. This implies that the notions of 'punishment', 'measure', 'order' and so on are more than just labels in our debates on the criminal law. All too often they serve the function of argument. In response, I believe that one of the ways to judge whether a conception of punishment is fruitful is to determine how well it is equipped to expose any conceptual tricks. I argue in this article that the neutral conception is more fruitful in this respect than the normative conception. (shrink)

Adherents to reconciliation, restorative justice, and related approaches to dealing with social conflict are well known for seeking to minimize punishment, in favor of offenders hearing out victims, making an apology, and effecting compensation for wrongful harm as well as victims forgiving offenders and accepting their reintegration into society. In contrast, I maintain that social reconciliation and similar concepts in fact characteristically require punishment but do not require forgiveness. I argue that a reconciliatory response to crime that includes punitive disavowal (...) but not necessarily forgiveness is supported by an analogy with resolving two-person conflict and by relational facets of human dignity. I also specify a novel account of the type of penalty that is justified by reconciliation, namely, burdensome labor that is likely to foster moral reform on the part of wrongdoers and to compensate their victims, which would serve neither retributive nor deterrent functions. I illustrate this conception of punishment in contexts that include having cheated on an exam at a university, engaged in criminal behavior such as robbery, and committed atrocities during large-scale social conflict. (shrink)

Whether or not we call a love-like relationship with robots true love, some people may feel and claim that, for them, it is a sufficient substitute for love relationship. The love relationship between humans has a special place in our social life. On the grounds of both morality and law, our significant other can expect special treatment. It is understandable that, precisely because of this kind of relationship, we save our significant other instead of others or will not testify (...) against her/him. How as a society should we treat love-like relationships humans with robots? Based on the assumption that robots do not have an inner life and are not moral patients, I defend the thesis that this kind of relationship should be protected by criminal law. (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)

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer from (...) this conclusion that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. -/- Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral responsibility, does not require an agent be able to grasp and follow moral reasons; it requires only that the individual be able to grasp and follow criminal laws. Once this point is recognized, it becomes much easier to accept my thesis: while the subset of psychopaths who commit crimes are not morally responsible for their criminal behavior because they cannot understand moral reasons, they are still criminally responsible because they can understand what the consequences will be if they get caught. For this reason, even though I concede that psychopaths are not morally responsible for the crimes that they commit, our practice of punishing them for these crimes is still just. -/- Second, I argue that psychopathy is a mental illness and should be recognized as such. One reason that it should be recognized as a mental illness is simply because it is; it satisfies the main criteria for inclusion in the DSM-IV, the “bible” of mental disorders. The other reason is more practical than conceptual. It starts with two facts: the U.S. Supreme Court has decided that the preventive detention of any individual who is not a criminal suspect is not constitutional unless the individual is not only dangerous but also mentally ill; and psychopathy is not currently considered to be a mental illness. So, as things now stand, we cannot preventively commit dangerous psychopaths – that is, psychopaths who have clearly indicated that they will be committing serious crimes. Instead, we must wait for them to commit the crimes before we can lock them up. Unfortunately, this incarceration always comes too late for the victims. It would therefore be better if we could lock them up before they actually inflict any harm. Once again, then, I propose that the legal and psychological communities classify psychopathy as a mental illness. (shrink)

How can criminal punishment be morally justified? Zisman addresses this classical question in legal philosophy. He provides two maybe surprising answers to the question. First, as for a methodological claim, it argues that this question cannot be answered by philosophers and legal scholars alone. Rather, we need to take into account research from social psychology, economy, anthropology, and so on in order to properly analyze the arguments in defense of criminal punishment. Second, the book argues that when such (...) research is properly accounted for, none of the current attempts to justify criminal punishment succeed. But that does not imply that the state should do nothing about criminal wrongdoing. Rather, the arguments that were supposed to justify criminal punishment actually speak in favor of an alternative approach to criminal law: restitution to the victim and restorative justice. That is to say, the state should coerce offenders to provide restitution for the harm inflicted on victims, and whenever possible restorative approaches should be taken to address criminal wrongdoing. (shrink)

Milk, sand, plastic, uranium, wood, carbon, and oil are kinds of stuff. The sand in Hawaii, the uranium in North Korea, and the oil in Iraq are portions of stuff. Not everyone believes in portions of stuff.1 Those who do are likely to agree that, whatever their more specific natures, portions of stuff can at least be identified with mereological sums of their subportions.2 It seems after all trivial that a given portion of stuff (...) class='Hi'>just is all of its subportions combined—not by a spatiotemporal or any other substantive unifying relation, but by a mere principle of summation, a principle requiring that, if some things exist, there exists the sum, or collection, of those things. (shrink)

Does communicative retributivism necessarily negate capital punishment? My answer is no. I argue that there is a place, though a very limited and unsettled one, for capital punishment within the theoretical vision of communicative retributivism. The death penalty, when reserved for extravagantly evil murderers for the most heinous crimes, is justifiable by communicative retributive ideals. I argue that punishment as censure is a response to the preceding message sent by the offender through his criminal act. The gravity of punishment (...) should be commensurate to the preceding criminal message, so that the offender can face up to the nature and significance of his crime. All murders are not the same. To measure up to the most evil and humanity-degrading murderous message, capital punishment should be the counter-message. Next, I argue that capital punishment does not necessarily violate human dignity. The death penalty and torture may both disrupt human dignity, yet in distinct ways. The death penalty terminates life, the vessel that holds together autonomy, while torture directly assaults autonomy. Torture is never permissible as a form of punishment. But death penalty, when used only on the extravagant evildoers, is justifiable, as life is thoroughly degraded by his own evil act. Further, I argue that mercy is integral to communicative retributivists’ theory of capital punishment. (shrink)

The piece returns to my earlier challenges of retributivism as the basis of contemporary criminal law, advancing my work on republican political justifications that make central the effect of punishment on citizenship. In short, the justification of punishment should eschew individual retributivist “desert” and focus primarily on the effects of punishment on the entire polity. In particular, this would mean that the effects of mass incarceration would be explicitly a part of justification of punishment. Concretized, members of communities where (...) widespread punishment (incarceration) has damaged collective civic health should explicitly receive discounts on otherwise “retributively justified” punishment. Most obviously, a regime focused on the effect of punishment on civic bonds would explicitly target the vast racial disparities in contemporary punishment regimes, grounding an explicit claim that an African-American or Hispanic defendant from overly punished communities should be punished less and requiring other state resources to secure the safety of the community. While critical, this regime is not solely aimed at racial disparities. This principle would equally address the concentration of punishment in poor, white communities often battered by punishment and policing. Thus, the policy shows a way of building allies across racial lines. (shrink)

This paper proposes a retributive argument against punishment, where punishment is understood as going beyond condemnation or censure, and requiring hard treatment. The argument sets out to show that punishment cannot be justified. The argument does not target any particular attempts to justify punishment, retributive or otherwise. Clearly, however, if it succeeds, all such attempts fail. No argument for punishment is immune from the argument against punishment proposed here. The argument does not purport to be an argument only against retributive (...) justifications of punishment, and so leave open the possibility of a sound non-retributive justification of punishment. Punishment cannot be justified, the paper argues, because it cannot be demonstrated that any punishment, no matter how minimal, is not a disproportionate retributive response to criminal wrongdoing. If we are to hold onto proportionality—that is, proportionality as setting a limit to morally permissible punishment—then punishment is morally impermissible. The argument is a retributive argument against punishment insofar as a just retributive response to wrongdoing must be proportionate to the wrongdoing. The argument, that is, is concerned with proportionality as a retributive requirement. The argument against punishment is set out on the basis of a familiar version of the ‘anchoring problem’, according to which it is the problem of determining the most severe punishment to anchor or ground the punishment scale. To meet the possible criticism that we have chosen a version of the anchoring problem particularly favourable to our argument, various alternative statements of the anchoring problem are considered. Considering such statements also provides a more rounded view of the anchoring problem. One such alternative holds that the punishment scale must be anchored not just in the most severe punishment, but in the least severe punishment as well. Other alternatives hold that it is necessary and sufficient to anchor the punishment scale in any two punishments, neither of which needs to be the most or least severe punishment. A further suggestion is that one anchoring point anywhere along the punishment scale is sufficient, because it is possible to ‘project’ from such a point, so as to determine the correlative punishments for all other crimes, and so derive a complete punishment scale. Finally, the suggestion is considered that one can approach the issue of a punishment scale ‘holistically’, denying any distinction between anchoring and derived (or ‘projected’) punishments. (shrink)

The debate over whether ‘fair-play’ can serve as a justification for legal punishment has recently resumed with an exchange between Richard Dagger and Antony Duff. According to the fair-play theorist, criminals deserve punishment for breaking the law because in so doing the criminal upsets a fair distribution of benefits and burdens, and punishment rectifies this unfairness. Critics frequently level two charges against this idea. The first is that it often gives the wrong explanation of what makes crime deserving of (...) punishment, since the wrongfulness of murder is not primarily about unfairness. The second is that it implies that all crimes deserve the same degree of punishment, because all crimes create the same degree of unfairness. These objections are viewed as revealing fatal flaws in the theory. Although Dagger attempts to meet these objections by drawing on political theory, Duff responds that this still draws upon the wrong kind of resources for meeting these objections. This paper argues that these two objections rest on a crucial mistake that has been overlooked by both the defenders and critics of fair-play. This mistake results from failing to distinguish between what justifies punishment as a response to crime (which requires a common element to all crime) and what justifies attaching particular penalties to crimes (which requires making distinctions in the severity of crime). The arguments presented will give reasons to consider fair-play as a viable justification for legal punishment. (shrink)

Assuming that states can hold moral duties, it can easily be seen that states—just like any other moral agent—can sometimes fail to discharge those moral duties. In the context of climate change examples of states that do not meet their emission reduction targets abound. 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? (shrink)

A criminal offense requires two elements. First, it requires proof of misconduct that is specifically prohibited by law. Second, it requires proof of sufficient intention or recklessness to warrant assignment of moral culpability for the act. For example, a person who kills another person intentionally is typically guilty of murder, while a person who kills recklessly or in the heat of passion in response to provocation may be guilty of manslaughter, and a person who kills accidentally is not guilty (...) of any crime. Even if the elements of the offense have been proven by the prosecution, the actor may not be punishable if the defense proves that his conduct was either justified or excused. (shrink)

Physicians in Islamic countries might be requested to participate in the Islamic legal code of qiṣāṣ, in which the victim or family has the right to an eye-for-an-eye retaliation. Qiṣāṣ is only used as a punishment in the case of murder or intentional physical injury. In situations such as throwing acid, the national legal system of some Islamic countries asks for assistance from physicians, because the punishment should be identical to the crime. The perpetrator could not be punished without a (...) physician’s participation, because there is no way to guarantee that the sentence would be carried out without inflicting more injury than the initial victim had suffered. By examining two cases of acid throwing, this paper discusses issues related to physicians’ participation in qiṣāṣ from the perspective of medical ethics and Islamic Shari’a law. From the standpoint of medical ethics, physicians’ participation in qiṣāṣ is not appropriate. First, qiṣāṣ is in sharp contrast to the Hippocratic Oath and other codes of medical ethics. Second, by physicians’ participation in qiṣāṣ, medical practices are being used improperly to carry out government mandates. Third, physician participation in activities that cause intentional harm to people destroys the trust between patients and physicians and may adversely affect the patient–physician relationship more generally. From the standpoint of Shari’a, there is no consensus among Muslim scholars whether qiṣāṣ should be performed on every occasion. We argue that disallowing physician involvement in qiṣāṣ is necessary from the perspectives of both medical ethics and Shari’a law. (shrink)

My aim in this article is threefold: First, I wish to challenge the view put forward by A. Flew and H. L. A. Hart which has won widespread recognition, namely, that the concept of punishment entails a legal or quasi-legal system of punishment. In my view all that is necessary for a case of punishment to occur is that a person inflicts deliberately and not primarily for the sake of any beneficial consequences which may flow from his action, anything likely (...) to cause discomfort to a victim who is capable of experiencing it, provided that the person inflicting the discomfort would claim, if asked to give a reason for his action, that he is inflicting it because of something for which he holds the victim accountable. If I am right it follows that punishment is not necessarily retributive, and that utilitarian ‘punishment’ like reformative and compensatory ‘punishment’ is not true punishment, since the discomfort inflicted in these cases is merely ancillary to another end. Secondly, I hope to show that Hart does not succeed in discrediting the retributive theory, and that his treatment of punishment, though functional in aim, perpetuates the confusion between the meaning of punishment and its justification. Thirdly, I shall contend that retribution is not a proper aim of a legal system, whatever place it may actually have or ought to have in our moral code. Looking to the future, I shall venture to predict that the legal institution of punishment will sooner or later give way to a system designed to reduce crime and to rehabilitate offenders. Such a system will be adjusted to the needs of the community and of individual offenders, and will not involve the infliction of discomfort as an end. Hence, it would be wrong to call it a system of punishment. (shrink)

Scholars have proposed that incarceration rates might be reduced by a requirement that judges justify incarceration decisions with respect to their operational costs (e.g., prison capacity). In an Internet-based vignette experiment (N = 214), we tested this prediction by examining whether criminal punishment judgments (prison vs. probation) among university undergraduates would be influenced by a prompt to provide a justification for one's judgment, and by a brief message describing prison capacity costs. We found that (1) the justification prompt alone (...) was sufficient to reduce incarceration rates, (2) the prison capacity message also independently reduced incarceration rates, and (3) incarceration rates were most strongly reduced (by about 25%) when decision makers were asked to justify their sentences with respect to the expected capacity costs. These effects survived a test of robustness and occurred regardless of whether participants reported that prison costs should influence judgments of incarceration. At the individual crime level, the least serious crimes were most amenable to reconsideration for probation. These findings are important for policymakers attempting to manage high incarceration rates. (shrink)

In this chapter, Sifferd analyzes the grounds for moral and legal desert. She bridges the gap between compatibilist accounts of our moral and legal responsibility, and she argues that neither moral nor criminal responsibility demand impossible or superhuman abilities. Sifferd’s capacitarian view of agency embraces our mechanistic natures yet can still ground robust mental causation, a key requirement for criminal culpability. She also notes the ways in which the capacity for reasons-responsiveness is developed and maintained over time, and (...) she claims that diachronic agency can instantiate meaningful self-control and self-formation with moral and legal rules in mind. Sifferd concludes that rapists do in some cases deserve criminal punishment. Her ultimate position is that basic desert is necessary but not sufficient for criminal punishment of rape. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Key Concepts: Criminal ResponsibilityCarl Elliott (bio)AbstractMentally disordered persons occasionally do things for which we would ordinarily blame or even punish a non-disordered person. We often do not blame mentally disordered persons for these actions, however, because we regard mental disorders, at least in some circumstances, as an excuse from moral responsibility. For moral philosophy and the law, the challenge is to understand the specific circumstances under which a (...) mental disorder should excuse an offender from responsibility for his or her actions. Because different types of psychopathology influence a person’s intentions and character in very different ways, judgments of responsibility crucially depend upon the specific nature of a mental disorder. They also depend on adequate understandings of concepts such as moral understanding, especially in the case of psychopathy, as well as an understanding of the reasons why mental disorders may excuse a person from responsibility.Keywordsintention, M’Naghten Rules, irresistible impulse, personality disorders, psychopathyThe mentally ill often do things for which they are not responsible. This has long been recognized, by both morality and the law. But just which mentally ill persons should be excused, and under what circumstances, is an altogether more complicated affair.In the Nicomachean Ethics, Aristotle distinguishes two types of involuntary actions, for which (by implication) a person might be excused from responsibility: those done in ignorance, and those that were compelled. Both excuses are variations on the theme of non-intention. If a person did not intend to act as he did—either because he did not know what he was doing, or because he could not help acting as he did—then he is not responsible for the action. Intention is also a key point for the law, which traditionally has said that for a crime to have been committed, it must be accompanied by evil intent, or mens rea (literally, “guilty mind.”)The problem comes in saying how these distinctions play out for the mentally ill offender. The most widely used standards for determining criminal (legal) responsibility are based on the M’Naghten Rules, which excuse a person from responsibility for an act if, as a result of a mental disorder, he did not know the nature and quality of the act, or did not know that the act was wrong. This standard works nicely for the paradigmatic cases of mentally ill offenders; it would excuse, for example, the person with paranoid schizophrenia who strikes out violently at a person he falsely believes is threatening his life. However, it is unclear on several other points, the most famous of which relates to Aristotle’s excusing condition of compulsion. How should we regard those people, for example, whose psychosis impairs their ability to control their behavior, or whose mental disorders involve the control of their unusual desires, such as kleptomania, pyromania, pedophilia and voyeurism? Many of the [End Page 305] latter such persons are aware of the nature and quality of what they desire to do, and they are aware that it is wrong, but they find great difficulty in resisting their desires.One well-known effort to remedy this deficiency was the “irresistible impulse” test, which excused those persons who as a result of their condition had acted on desires that were irresistible. Yet the difference between an irresistible desire and a desire not resisted has proven notoriously difficult to distinguish, in practice as well as in theory.Another chronic source of philosophical controversy is the question of responsibility for one’s character. In psychiatry, this debate surfaces most often with patients who have personality disorders. Ordinarily, since persons cannot control whether they incur a mental illness, they can be excused from responsibility for some actions they have taken while they were mentally ill. However, personality disorders are also (in some sense) beyond a person’s control, being the product of genetic inheritance and upbringing. This raises old issues of psychological determinism: if personality disorders are beyond a person’s control, is it just to hold that person responsible for the actions that result from them?On the other hand, even if personality disorders are within the proper domain of psychiatry, they are obviously quite different from... (shrink)

Criminal punishments are commonly imposed on those convicted of harming others, yet punishment is itself necessarily harmful. Although we suppose that there is a moral difference between the two types of harming, the precise nature of this difference is not at all obvious. The problem here can be approached by asking this question: in what situations is harming others most obviously morally justified? And the answer, intuitively, is that these are situations involving self-defense against culpable aggression. This intuition provides (...) a point of departure for explaining how criminal punishment is morally justifiable as an instrument of societal-defense. Developing this explanation requires identifying the principle of distributive justice that justifies harming others in individual self-defense, and then applying that principle to defensive actions by societies. (shrink)

In the United States today criminal justice can vary from state to state, as various states alter the Modern Penal Code to suit their own local preferences and concerns. In Eastern Europe, the post-Communist countries are quickly adopting new criminal codes to reflect their specific national concerns as they gain autonomy from what was once a centralized Soviet policy. As commonalities among countries and states disintegrate, how are we to view the basic concepts of criminal law as (...) a whole? Eminent legal scholar George Fletcher acknowledges that criminal law is becoming increasingly localized, with every country and state adopting their own conception of punishable behavior, determining their own definitions of offenses. Yet by taking a step back from the details and linguistic variations of the criminal codes, Fletcher is able to perceive an underlying unity among diverse systems of criminal justice. Challenging common assumptions, he discovers a unity that emerges not on the surface of statutory rules and case law but in the underlying debates that inform them. Basic Concepts of Criminal Law identifies a set of twelve distinctions that shape and guide the controversies that inevitably break out in every system of criminal justice. Devoting a chapter to each of these twelve concepts, Fletcher maps out what he considers to be the deep structure of all systems of criminal law. Understanding these distinctions will not only enable students to appreciate the universal fundamental ideas of criminal law, but will enable them to understand the significance of local details and variations. This accessible illustration of the unity of diverse systems of criminal justice will provoke and inform students and scholars of law and the philosophy of law, as well as lawyers seeking a better understanding of the law they practice. (shrink)

Having adequate knowledge of the world is not just a matter of survival but also one of obligation. This obligation to "know well" is what philosophers have termed "epistemic responsibility." In this innovative and eclectic study, Lorraine Code explores the possibilities inherent in this concept as a basis for understanding human attempts to know and understand the world and for discerning the nature of intellectual virtue. By focusing on the idea that knowing is a creative process guided by imperatives (...) of epistemic responsibility, Code provides a fresh perspective on the theory of knowledge. From this new perspective, Code poses questions about knowledge that have a different focus from those traditionally raised in the two leading epistemological theories, foundationalism and coherentism. While not rejecting these approaches, this new position moves away from a primary concentration on determinate products and towards an examination of ever-changing processes. Arguing that knowledge never exists as an ungrounded abstraction but rather emerges through dialogue between variously authoritative "knowers" situated within particular social and historical contexts, she draws extensively on examples from lived social experience to illustrate the ways in which human beings have long tried to recognize and meet their epistemic responsibilities. This edition of Epistemic Responsibility includes a new preface from Lorraine Code"--Provided by the publisher. (shrink)