Can the Law Do Without Retributivism? Comments on Erin Kelly’s The Limits of Blame (original) (raw)
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Limiting Retributivism: The Consensus Model of Criminal Punishment
Social Science Research Network, 2003
This paper argues that Norval Morris' theory of limiting retributivism should be recognized as the consensus model of criminal punishment. Some version of Morris' approach is embodied in the current sentencing regimes of almost all American states, even sentencing guidelines regimes expressly founded on a Just Deserts model, and in many nations, both in common law and civil law legal systems. Limiting retributivism is popular with practitioners, and makes good sense as a matter of policy, because it strikes an appropriate balance between the conflicting punishment goals and values which are recognized in almost all western countries. The theory accommodates retributive values (especially the importance of limiting maximum sanction severity) along with crime-control goals such as deterrence, incapacitation, rehabilitation, and denunciation. It also promotes efficiency, and provides sufficient flexibility to incorporate victim and community participation, local values and resource limitations, and restorative justice programs. Recognizing and promoting a consensus model based on Morris' theory would have considerable value; the theory enjoys widespread support, provides a principled basis to resist persistent political and media pressures to escalate sanction severity, and gives researchers and sentencing policy makers in diverse systems a common framework within which to compare, evaluate, and reform sentencing practices.
Retributivism and Over-Punishment
Law and Philosophy
Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted. The point of this paper is to take steps to rebut them. I begin by making four conceptual points about retributivism. If I am correct, retributivism comes in countless flavors, and the particular variety to which I am most attracted can be applied to show why some punishments should be less severe than those presently imposed. Next I argue that many persons deserve less punishment than our legal system currently inflicts. Reflection about whether perpetrators should be afforded a complete or partial defense reveals retributivism to be less punitive than conventional wisdom would suggest.
Rutgers Law Review, 2014
Consider the reaction of Trayvon Martin's family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family's emotional reaction mean? What does it say about criminal punishment-especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were-and are-they so upset that he did not? This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to see defendants like George Zimmerman forced to "pay" for the harms that they needlessly and culpably inflict on others. While this point may seem obvious, it isn't. Most people repudiate revenge and therefore the notion that it plays any role in the criminal justice system.
The Monist, 2021
Moral and legal philosophy are too entangled: moral philosophy is prone to model interpersonal moral relationships on a juridical image, and legal philosophy often proceeds as if the criminal law is an institutional reflection of juridically imagined interpersonal moral relationships. This article challenges this alignment and in so doing argues that the function of the criminal law lies not fundamentally in moral blame, but in regulation of harmful conduct. The upshot is that, in contrast to interpersonal relationships, the criminal law cannot lose its standing to blame through institutional analogues of hypocrisy, complicity, and meddling. Rather, certain forms of structural and severe historical and contemporary injustice point to the question of the overall legitimacy of state authority.
Criminal Blame, Exclusion and Moral Dialogue
Criminal Law and Philosophy, 2021
In her recent book The Limits of Blame, Erin Kelly argues that we should rethink the nature of punishment because delivering blame is, contrary to the widely held view, not among the justifiable aims of a criminal justice system. In this paper, firstly, I discuss her case against criminal blame. Kelly argues that the emphasis on blame in the criminal justice system and in public discourse is one of the main causes of the stigma and exclusion faced by those convicted for a crime. This claim might appear puzzling and, while she provides other convincing arguments against criminal blame, Kelly does not extensively defend this particular argument. To offer support for this view, I reflect on the often overlooked distinction between moral blame and criminal blame to show how the latter, unlike the former, is exclusionary and stigmatising. Secondly, I address the claim put forth by Kelly that blame should play no role in the criminal justice system at all. In light of her argument about the optional nature of moral blame, I explore the possibility that the state should leave open to victims the option to blame criminal wrongdoers in restorative justice conferences. I argue that in such contexts blame would not have the same exclusionary features of criminal blame in traditional settings and that it could serve some valuable aims articulated by communicative theories of punishment, such as the restoration of moral relationships.
Retributivism, State Misconduct, and the Criminal Process
Criminal Justice Ethics, 2023
State agents' misconduct (SAM), such as the violations carried out by the police or prosecution, may harm an offender's rights during the criminal process in various ways. What, if anything, can retributivism, as an offense-focused theory that looks to the past, offer in response to SAM? The goal of this essay is to advance a retribution-based framework for responding to SAM within the criminal process. Two retribution-based arguments are provided. First, a retribution-based response to SAM aims to protect the legitimacy of the criminal process. Such an argument is based on how the crime and punishment connect to the moral standing of the state and that connection's meaning for the legitimacy of the trial (legitimacy-based argument). Second, a retribution-based response to SAM aims to consider the offender's side of the penal dialogue and promote a more accurate calibration of the penal suffering (compensation-based argument). Based on these arguments, the essay theorizes the legal response for SAM in US and non-US traditions through the retributive lens. The essay concludes with a call for expanding the multiple roles for retributive logic to include the actions of law-enforcement actors and addresses what that expansion means for the justice of the criminal process.
Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak
In Ignorance of Law, Doug Husak defends a version of legal moralism on which “we should recognize a presumption that the criminal law should derive from, be based on, conform to, or mirror critical morality.” He thinks “we should regret…retreats from our ideal and do our best to find ways to avoid them,” even while agreeing “retreat is almost certainly needed.” In this paper, however, I ask whether this claim about regret true across the board. I argue that criminal law departures from the moral ideal need not always be regretted. Instead, I explore whether the substantive rules of the criminal law should mirror not moral blameworthiness, but a distinct legal notion of criminal culpability—akin to moral blameworthiness, but which is cleaned up to be deployed in legal systems. Rather than relegating institutional design considerations to a secondary position reached only after the moral ideal has been mapped, I suggest that they should be built into the criminal law theorist’s inquir...
Responsibility Beyond Blame: Unfree Agency and the Moral Psychology of Criminal Law's Persons
Criminal Law's Person (Lernestedt and Matravers (eds.)), (Oxford: Hart) , 2022
In this chapter I examine Lacey and Pickard's recent 'responsibility without blame' model of criminal law and punishment, and argue that it is, though suggestive, unconvincing. They challenge the orthodox assumption of contemporary penal theory that only the retributive 'justice model', and not therapy, can institute respect for offenders as persons, arguing that therapy can be reconciled with respect because we can reconcile therapy with the justice model. Pickard's 'clinical model' based on reflection on therapeutic work with psychopathology shows us, they claim, how to reconcile the justice model of criminal responsibility and punishment with the reparative and reconciliatory ideal of a therapeutic dialogue animated by a spirit not of blame but of forgiveness. I claim that certain of Lacey and Pickard's intuitions and insights in fact lead to a different conclusion: that the whole conceptual landscape of our criminal responsibility practices is inadequate. Far from uniquely instituting respect for persons, it is incapable of doing so. Therapy can be reconciled with respect because respect doesn't depend on the justice model at all. The latter's austere conception of respect ignores the psychology of real persons and fictionalises them as autonomous beings abstracted from the constraints, limitations and privations of psychological reality. Lacey and Pickard's account is unable to follow through on its important insights into the normative significance of the real psychology of persons for the critical appraisal of our criminal legal practices.To institute psychologically realistic respect for persons, we'd require a different kind of responsibility practice altogether.