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August 14, 2012

"Reality-Challenged Philosophies of Punishment"

The title of this post is the title of this notable new article by the always terrifically interesting Professor Robert Weisberg.  This piece is now available via SSRN, and here is the abstract:

This paper, derived from the 2012 Barrock Lecture delivered at Marquette University Law School, explores the radical disconnection between the contemporary jurisprudence of punishment in the American academy and the raw facts of American imprisonment, the condition generally decried as “mass incarceration.”  Most obviously, retributivism, which has been the dominant purported rationale for American punishment over the last 40 years and also the dominant force modern philosophical debates about the purposes of punishment, pays virtually no heed to the anomaly that we have the highest imprisonment rate in the nation’s history and arguably the highest in the world.  More specifically, while relying on assumptions about moral desert and proportionate penalty, retributivism ignores that our system takes its heaviest toll on, and arguably worsens the social and economic condition of, poor minority men of limited education, and that it imposes a lifetime economic penalty far behind the loss of liberty and income during the time of incarceration.

Thus, I pose the general question of in what sense philosophies of punishment should be “accountable” for the facts of the real world.  Did academic retributivism influence the rise of political retributivism as a force behind our increased reliance on prison?  Can retributivism justify the arguably disproportionate penalties imposed on prisoners, once we take lifetime economic disruption and wider metastatic effects into account?  Or should retributivists criticize modern imprisonment precisely because it does not survive retributivist scrutiny, or, in light of those facts, does it need to revise its notions of desert and penalty?  In addition, I ask whether deterrence theory or incapacitation theory can explain or justify the state of imprisonment, and whether rehabilitation is a meaningful concept in a world where the experience of imprisonment probably does nothing to reduce future crime except by incapacitating inmates until they are too old to be dangerous.  Overall, I argue that philosophies of punishment must engage in some dialectical self-scrutiny at a time of our incarceration anomaly.

August 14, 2012 at 05:33 PM | Permalink


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Just to carry this a little further. Look what happened when the lawyers took over the sentencing world in the 1970's and 80's, and tossed out the social sciences.

Posted by: Tom McGee | Aug 14, 2012 7:49:04 PM

Yes. Look. Crime dropped 40% across the board, handing a huge bonus to the economy of the 90's, not to mention just greater safety.

Retribution is a red herring, from the Bible, lawless in this secular nation, and worthless. Rehab is a joke.

Incapacitation is the sole mature goal of the criminal law, which fulfills the role of government to provide safety. Maybe other lands under report crime. Maybe other lands are poorer because of high crime rates. Maybe other lands have incarceration rates that are too low. Maybe the housing bubble is due to the release of criminals, or the prevention of their incapacitation by the Supreme Court series ending mandatory sentencing. There is certainly a time coincidence.

Those underwater houses are more likely to be in high crime areas. And crime drops the value of housing. In Detroit, there are houses that are fine old houses, that no one would take if they were paid, never mind paying for any of them.

The article is another example of dense lawyer obliviousness to the damage the lawyer profession has done to the economy and to the nation. It focuses on an irrelevant argument, no one sane would make anyway.

Posted by: Supremacy Claus | Aug 15, 2012 12:33:14 AM

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