Theorizing Legal Punishment

"This book systematically defends an account of the institution of legal punishment that draws on both retributive and crime prevention thinking. The work argues that legal punishment censures convicted offenders and thus morally communicates with them, any victims, and the broader community, while also serving to reduce future crime. The expressive or retributive element is assigned the lead role in this mixed account because it better captures the notion that members of society are to be held morally accountable for their failures to abide by defensible criminal prohibitions of various kinds. Despite this, it is conceded that the reduction of crime plays a vital role in justifying the institution of legal punishment and the book contains extended discussion of how and why this is so. Beyond its explication of the aims of legal punishment and their respective roles within a mixed theory, the study devotes separate chapters to sentencing, criminal procedure, and the imposition of fees and collateral legal consequences on individuals who have been convicted of crimes and fully served their sentences. In these ways, the work moves beyond discussion of the abstract aims of legal punishment to details of the institution's internal structure and operations. The many historical deficiencies and failures of the institution are duly noted and the challenges they pose for punishment theorizing are examined. The book closes with discussion of the limited success of punishment institutions in apprehending, convicting, and punishing those who violate the law, including many who do so in serious ways. Alternatives to reliance on legal punishment institutions are briefly examined. In the end, retention of such institutions is urged although it is suggested that we ought to have modest expectations about their ultimate success. The work will be of interest to those working in the areas of Legal Philosophy and Criminology"--

This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state. 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 recognizes the strength of both positions. According to the two-tiered model, the institution of punishment and statutory penalties, as set by the legislature, are justified based on their costs and benefits, in terms of deterrence and rehabilitation. The law exists to preserve the public order. Criminal courts, by contrast, determine who is punished and how much based on what offenders deserve. The courts express the community’s collective sense of resentment at being wronged. This book supports the two-tiered model by showing that it accords with our moral intuitions, commonly held (compatibilist) theories of freedom, and assumptions about how the extent of our knowledge affects our obligations. It engages classic and contemporary work in the philosophy of law and explains the theory’s advantages over competing approaches from retributivists and other mixed theorists. The book also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. Drawing on recent criminological research, the two-tiered model can help us to address some of our most pressing social issues, including the death penalty, drug policy, and mass incarceration. This book will be of interest to philosophers, legal scholars, policymakers, and social scientists, especially criminologists, economists, and political scientists.

This book systematically defends an account of the institution of legal punishment that draws on both retributive and crime-prevention thinking. The work argues that legal punishment censures convicted offenders and thus morally communicates with them, any victims, and the broader community, while also serving to reduce future crime. The expressive or retributive element is assigned the lead role in this mixed account because it better captures the notion that members of society are to be held morally accountable for their failures to abide by defensible criminal prohibitions of various kinds. Despite this, it is conceded that the reduction of crime plays a vital role in justifying the institution of legal punishment and the book contains extended discussion of how and why this is so. Beyond its explication of the aims of legal punishment and their respective roles within a mixed theory, the study devotes separate chapters to sentencing, criminal procedure, and the imposition of fees and collateral legal consequences on individuals who have been convicted of crimes and fully served their sentences. In these ways, the work moves beyond discussion of the abstract aims of legal punishment to details of the institution’s internal structure and operations. The many historical deficiencies and failures of the institution are duly noted and the challenges they pose for punishment theorizing are examined. The book closes with discussion of the limited success of punishment institutions in apprehending, convicting, and punishing those who violate the law, including many who do so in serious ways. Alternatives to reliance on legal punishment institutions are briefly examined. In the end, retention of such institutions is urged although it is suggested that we ought to have modest expectations about their ultimate success. The work will be of interest to those working in the areas of Legal Philosophy and Criminology.

This book addresses the problem of justifying the institution of criminal punishment. It examines the “paradox of retribution”: the fact that we cannot seem to reject the intuition that punishment is morally required, and yet we cannot (even after two thousand years of philosophical debate) find a morally legitimate basis for inflicting harm on wrongdoers. The book comes at a time when a new “abolitionist” movement has arisen, a movement that argues that we should give up the search for justification and accept that punishment is morally unjustifiable and should be discontinued immediately. This book, however, proposes a new approach to the retributive theory of punishment, arguing that it should be understood in its traditional formulation that has been long forgotten or dismissed: that punishment is essentially a defense of the honor of the victim. Properly understood, this can give us the possibility of a legitimate moral justification for the institution of punishment.​

This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations.

Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide. Punishment is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine all leading contemporary theories of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking. This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology.

Cragg combines the findings of contemporary studies, reports and papers focusing on crime, punishment and penal practice with philosophical argument and thereby constructs a radical theory of restorative justice.

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.

Examines all the important fundamental questions of criminal liability and presents a systematic theory of criminal justice. Punishment and responsibility are given fresh and comprehensive treatment.