Imprisonable offenses

Journal of Moral Philosophy

Volumn 3, Issue 3, 2006, Pages 265-287

  Lippke, Richard L ^a  

^a JAMES MADISON UNIVERSITY   (United States)

Author keywords

Crime reduction; Imprisonment; Retribution

Indexed keywords

EID: 62449316427     PISSN: 17404681     EISSN: 17455243     Source Type: Journal    
DOI: 10.1177/1740468106071220     Document Type: Article

References (55)

1. 'Prison Statistics', US Department of Justice, at www.ojp.usdoj.gov/bjs/ prisons.htm
2. See also Alfred Blumstein and Allan J. Beck, 'Population Growth in U.S. Prisons', in Michael Tonry and Joan Petersilia (eds.), Prisons, vol. 26 of Crime and Justice: A Review of Research (Chicago and London: University of Chicago Press, 1999), pp. 17-61
3. For an overview of international trends in the use of imprisonment, see Roy D. King, 'Prisons', in Michael Tonry (ed.), The Handbook of Crime and Punishment (New York: Oxford, 1998), pp. 589-625, especially pp. 590-96
4. See Theodore Caplow and Jonathan Simon, 'Understanding Prison Policy and Population Trends', in Tonry and Petersilia, Prisons, pp. 63-120 (76). It is worth noting that the distinction between violent and nonviolent offenses is not a sharp one
5. This figure comes from Amnesty International at www.amnesty.usa.org
6. Contemporary retributive theories generally split into two camps - unfair advantage and communicative versions of the theory. For the former, see Herbert Morris, 'Persons and Punishment', Monist 52 (1968), pp. 475-501
7. Jeffrie Murphy, 'Marxism and Retribution', Philosophy and Public Affairs 2 (1973), pp. 217-43
8. Wojciech Sadurski, Giving Desert its Due (Dordrecht, Netherlands: D. Reidel, 1985)
9. and George Sher, Desert (Princeton, NJ: Princeton University Press, 1987), pp. 69-90
10. For communicative versions, see Jean Hampton, 'A New Theory of Retribution', in R.G. Frey and Christopher W. Morris (eds.), Liability and Responsibility: Essays in Law and Morals (Cambridge: Cambridge University Press, 1991), pp. 377-414
11. R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986)
12. and Jami L. Anderson, 'Annulment Retributivism: A Hegelian Theory of Punishment', Legal Theory 5 (1999), pp. 363-88
13. Hyman Gross, A Theory of Criminal Justice (New York: Oxford University Press, 1979), pp. 77-88
14. Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984), pp. 19-20
15. The notion that sanctions should be keyed, in part, to the harms crimes typically cause their victims is discussed in Andrew von Hirsch and Nils Jareborg, 'Gauging Criminal Harm: A Living-Standard Analysis', Oxford Journal of Legal Studies 11 (1991), pp. 1-38 (14). Von Hirsch and Jareborg endorse limited sentencing ranges for offenses, such that deviations from the harms typically produced can be punished somewhat more or less harshly, depending on the features of individual cases
16. For further discussion of this equalizing approach to retributivism, see my 'Victim-Centered Retributivism', Pacific Philosophical Quarterly 84 (2003), pp. 127-45
17. and 'Retribution and Incarceration', Public Affairs Quarterly 17 (2003), pp. 29-48
18. See Finn Hornum, 'Corrections in Two Social Welfare Democracies: Denmark and Sweden', Prison Journal 68 (1988), pp. 63-82
19. For description and analysis of supermax prisons, see Leena Kurki and Norval Morris, 'The Purposes, Practices, and Problems of Supermax Prisons', Crime and Justice: A Review of Research 28 (2001), pp. 385-424
20. See also my 'Against Supermax', Journal of Applied Philosophy 21 (2004), pp. 109-24
21. For evidence about the effects of supermax confinement on individuals, see Craig Haney, 'Mental Health Issues in Long-Term Solitary and "Supermax" Confinement', Crime & Delinquency 49 (2003), pp. 124-56
22. See Murphy, 'Marxism and Retribution', pp. 231-43
23. For further discussion of the effects of social deprivation on individuals and how it should affect our thinking about the justification of legal punishment, see my 'Diminished Opportunities, Diminished Capacities: Social Deprivation and Punishment', Social Theory and Practice 29 (2003), pp. 459-85
24. For discussion of sentence reductions as a response to diminished responsibility in offenders, see Stephen Morse, 'Excusing and the New Excuse Defenses: A Legal and Conceptual Review', Crime and Justice: A Review of Research 23 (1998), pp. 329-406, at 401
25. For the view that attempts should be punished the same as successes, see Richard Parker, 'Blame, Punishment, and the Role of Results', American Philosophical Quarterly 21 (1984), pp. 269-76
26. For the opposing view, see Michael Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997), pp. 193-247
27. See also R.A. Duff, Criminal Attempts (Oxford: Clarendon Press, 1996), pp. 348-400, whose arguments shape my own thinking on these matters
28. 'Costs' here should be understood to encompass all of the negative consequences of imprisonment
29. Michael Davis expresses skepticism that the utilitarian sentencing project can ever be carried out in light of the abysmal state of our knowledge concerning the comparative effects of different sentencing schemes on crime rates. See his 'How to Make the Punishment Fit the Crime', Ethics 93 (1983), pp. 726-52, at 732-34
30. But see James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (Oxford: Clarendon Press, 1986), pp. 75-92, for a useful discussion of the commensurability of seemingly disparate values
31. See especially Thomas Mathiesen, Prison on Trial (Winchester, UK: Waterside Press, 2000)
32. and Deirdre Golash, The Case against Punishment: Retribution, Crime Prevention, and the Law (New York: New York University Press, 2005), pp. 22-38
33. For an older, but still quite useful discussion, see Anthony O'Hear, 'Imprisonment', Philosophy 18 (1984 Supplement), pp. 203-220
34. I borrow the term 'dehabilitation' from Mathiesen in Prison on Trial, p. 53
35. See especially John Hagan and Ronit Dinovitzer, 'Collateral Consequences of Imprisonment for Children, Communities, and Prisoners', in Tonry and Petersilia, Prisons, pp. 121-62
36. See Sam Brand and Richard Price, The Economic and Social Costs of Crime (London: Home Office Research Studies, 2000)
37. See also the studies of victim and societal costs discussed in Franklin E. Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime (New York: Oxford University Press, 1995), pp. 131-54
38. A point made by Zimring and Hawkins in Incapacitation, p. 151
39. See especially 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), pp. 45-47
40. See also Daniel Nagin, 'Deterrence and Incapacitation', in Tonry, The Handbook of Crime and Punishment, pp. 345-68
41. See Anthony N. Doob and Cheryl Marie Webster, 'Sentence Severity and Crime: Accepting the Null Hypothesis', Crime and Justice: A Review of Research 30 (2003), pp. 143-95
42. See von Hirsch et al., Criminal Deterrence and Sentence Severity, p. 6
43. Daniel Nagin has noted that threats of especially harsh sanctions for certain types of crimes may only lead individuals to shift the kinds of offenses they engage in, not to desist from offending. See Nagin, 'Deterrence and Incapacitation', pp. 356-57
44. One version of this argument, defending the use of capital punishment, is offered by Steven Goldberg, 'Does Capital Punishment Deter?', Ethics 85 (1974), pp. 67-74, at 70-71
45. See Zimring and Hawkins, Incapacitation, especially pp. 53-56
46. and Nagin, 'Deterrence and Incapacitation', pp. 362-65
47. For the view that there are promising strategies for predicting continued criminal offending by some types of offenders, see Jacqueline Cohen, 'Incapacitation as a Strategy for Crime Control: Possibilities and Pitfalls', Crime and Justice: A Review of Research 5 (1983), pp. 64-74
48. For skepticism about such strategies, see Kathleen Auerhahn, 'Selective Incapacitation and the Problem of Prediction', Criminology 37 (1999), pp. 703-34
49. See Edwin W. Zedlewski, 'Why Prisons Matter: A Utilitarian Review', Corrections Management Quarterly 1 (1997), pp. 15-24
50. and Making Confinement Decisions (Washington, DC: National Institute of Justice, 1987)
51. For criticism of Zedlweski's analyses, and in particular his estimates of the rates at which individuals offend, see Zimring and Hawkins, Incapacitation, pp. 142-47
52. Martin Wasik and Andrew von Hirsch argue that retributivists can support somewhat longer sentences for recidivists, especially if sanctioning schemes employ a range of sentences in relation to any given offense. With first- or even second-time offenders, it might be reasonable to conclude that their participation in criminal activity was the result of youth, temporary bad judgment, or undue influence by others. As a result, we might assign such offenders sentences at the lower end of the sanction ranges for their offenses. Recidivism evidences that individuals are determined to continue their criminal careers, so doubts about the extent of their culpability for crimes become less sustainable. Repeat offenders might therefore appropriately be assigned penalties at or near the top of the relevant sanction range. See Martin Wasik and Andrew von Hirsch, 'Section 29 Revisited: Previous Convictions in Sentencing', Criminal Law Review (1994), pp. 409-18
53. Donald Clemmer referred to the process by which prisoners come to identify with their fellow inmates and embrace their outlaw status as that of 'prisonization'. See his The Prison Community (New York: Rinehart and Co., 1958), p. 299
54. See Gerald Gaes, Timothy J. Flanagan, Lawrence L. Motiuk, and Lynne Stewart, 'Adult Correctional Treatment', in Tonry and Petersilia, Prisons, pp. 361-426
55. Andrew Ashworth remarks that 'relatively little is heard of individual deterrence as a specific aim of sentencing in the modern debate'. See his 'Deterrence', in Andrew von Hirsch and Andrew Ashworth (eds.), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart Publishing, 1998), pp. 44-52, at 45