Mixed theories of punishment and mixed offenders: Some unresolved tensions

Southern Journal of Philosophy

Volumn 44, Issue 2, 2006, Pages 273-295

  Lippke, Richard L ^a  

^a JAMES MADISON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 60950676794     PISSN: 00384283     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.2041-6962.2006.tb00102.x     Document Type: Article

References (32)

1. See, for instance, Philip Pettit and John Braithwaite, Not Just Deserts: A Republican Theory of Justice (Oxford: Clarendon Press, 1990), though it is debatable to what extent Pettit and Braithwaite admit the merits of the retributive approach
2. and theories that analogize punishment with self-defense, such as Warren Quinn, "The Right to Threaten and the Right to Punish," Philosophy and Public Affairs 14 (1985): 327-73
3. and Phillip Montague, Punishment As Societal Defense (Lanham, MD: Rowman and Littlefield, 1995). One could argue, of course, that none of these theories really transcends the standard crime reduction and retributive approaches
4. A further contrast between the two approaches is worth noting. Retributive theories appear to have more stringent requirements with respect to the overall justice of the social orders within which they are assumed to operate. This point was developed by Jeffrey G. Murphy in "Marxism and Retribution," Philosophy and Public Affairs 2 (1973): 217-43. Retributive theories may only fully justify legal punishment in reasonably just societies. Crime reduction approaches are not wholly insensitive to the need for social justice. Those who favor them can plausibly argue that more just social orders will produce less crime and will therefore be less in need of institutions of legal punishment, with all of their costs and problems. But deterrence and incapacitation can operate well enough in significantly unjust social orders. Thus, they can be invoked to justify legal punishment in circumstances where, logically speaking, retributive theories imply it is morally suspect
5. John Rawls, "Two Concepts of Rules," Philosophical Review 64 (1955): 3-32
6. H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford: Clarendon Press, 1968), especially Chapter 1
7. and Andrew von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993)
8. See also von Hirsch's Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick, NJ: Rutgers University Press, 1987)
9. The idea that the capacity for moral responsibility is a matter of degree, rather than all-or-nothing, derives from R. Jay Wallace, Responsibility and the Moral Sentiments (Cambridge, MA: Harvard University Press, 1996)
10. and John Martin Fischer and Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (Cambridge: Cambridge University Press, 1998). This is not to say, of course, that what I claim here is fully consistent with the views of these authors
11. The evidence suggests, for instance, that those with psychopathic personality disorder are not only largely amoral but quite often very impulsive in their behavior. See Grant T. Harris, Tracey A. Skilling, and Marnie E. Rice, "The Construct of Psychopathy," Crime and Justice: A Review of Research, Volume 28, ed. Michael Tonry (University of Chicago Press, 2001), 197-264, at 197. The authors also suggest that many of the most serious and persistent criminal offenders "would be identified as psychopathic" (197)
12. Rawls, "Two Concepts of Rules," 11-12
13. Alan Goldman, "The Paradox of Punishment," Philosophy and Public Affairs 9 (1979): 42-58, at 48-9
14. For discussion of the state of our empirical knowledge about the deterrence and incapacitation effects of legal punishment, see Andrew von Hirsch, Anthony E. Bottoms, Elizabeth Burney, and P. O. Wikstrom, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (Oxford: Hart Publishing, 1999)
15. and Franklin E. Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime (New York: Oxford University Press, 1995)
16. Hart, Punishment and Responsibility, 9
17. For one attempt to do this, see Andrew von Hirsch and Nils Jareborg, "Gauging Criminal Harm: A Living-Standard Analysis," Oxford Journal of Legal Studies 11 (1991): 1-38
18. Von Hirsch, Censure and Sanctions, 9
19. For discussion of why censure should be viewed as directed primarily at offenders, see Uma Narayan, "Appropriate Responses and Preventive Benefits: Justifying Censure and Hard Treatment in Legal Punishment," Oxford Journal of Legal Studies 13 (1993): 166-82, at 172-3
20. Duff, Trials and Punishments, 233-4
21. See von Hirsch, Censure and Sanctions, 13
22. Narayan, "Appropriate Responses and Preventive Benefits," 166-92
23. Narayan, "Appropriate Responses and Preventive Benefits," 182
24. See von Hirsch, Past or Future Crimes, especially pp. 105-46
25. See also his "Proportionality in the Philosophy of Punishment," in Crime and Justice: A Review of Research, Volume 19 (University of Chicago Press, 1992), 55-98, at 88-9
26. Wallace, Responsibility and the Moral Sentiments, 155-6
27. Cf. Stephen Morse, "Excusing and the New Excuse Defenses: A Legal and Conceptual Review," Crime and Justice: A Review of Research, Volume 23, ed. Michael Tonry (University of Chicago Press, 1998), 329-406, at 401
28. Goldman, "The Paradox of Punishment," 48-9
29. For the argument that there is no such relationship, see Anthony N. Doob and Cheryl Marie Webster, "Sentence Severity and Crime: Accepting the Null Hypothesis," Crime and Justice: A Review of Research, Volume 30, ed. Michael Tonry (University of Chicago Press, 2003), 143-95
30. Daniel Nagin notes that with white-collar offenders - individuals who presumably have more at stake than poor offenders in obedience to the rules of the social order-the loss of status in the community that attends conviction for a serious offense is a powerful deterrent. See his "Criminal Deterrence Research at the Outset of the Twenty-First Century," Crime and Justice: A Review of Research, Volume 23, ed. Michael Tonry (University of Chicago Press, 1998), 1-42, at 20
31. I propose such an account in "Retribution and Incarceration," Public Affairs Quarterly 17 (2003): 29-48
32. See also my "Victim-Centered Retributivism," Pacific Philosophical Quarterly 84 (2003): 127-45