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January 21, 2007

Deep theory thoughts for a snowy Sunday

To celebrate our first real snow of the season in central Ohio, I plan to spend the day (after some snowman building) catching up on reading while keeping an eye on who plays their way into the Super Bowl.  One piece I just found for my reading list is this SSRN draft by Mitchell Berman (no relation) entitled "Punishment and Justification."  Here is the enticing abstract:

Retributivist and consequentialist justifications for criminal punishment have contended for generations without either emerging the obvious victor. Indeed, although many commentators have recently announced a retributivist renaissance, it is perhaps more accurate to observe a growing scholarly attraction to "mixed" or "hybrid" theories. And yet most extant mixed theories strike many as unsatisfactory for either of two reasons. The best known mixed theories assign retributivist arguments a too-marginalized role relative to their consequentialist competitors. Others, that avoid this perceived failing, lack hard edges: They assert that desert and good consequences are jointly necessary to the justification of punishment but offer little shape or structure to their inter-relationship.

This paper sketches a mixed theory that avoids these pitfalls. It gives retributivist and consequentialist accounts closer to co-top billing, while assigning each a distinct role in the argumentative logic. It accomplishes this task by attending with seriousness to the point of departure for virtually the entire scholarly literature on the justification for criminal punishment. Almost invariably, contributions to that literature start by observing that "punishment stands in need of justification." So-called theories of punishment are, accordingly, efforts to meet that need. Precisely because these theories are situated ab initio within an argumentative dialectic, one might expect their persuasiveness to depend, in part, on how fully and satisfactorily they understand the proposition to which they aim to respond. Surprisingly, however, the vast literature on punishment has given remarkably short shrift to the question of what is meant and entailed by a demand that punishment be justified. This paper seeks to rectify that oversight by analyzing both what it means to demand justification for a given practice and how such a demand can be satisfied. Once armed with a richer understanding of the logical structure of justificatory argumentation, we are better able to see how a mixed theory of punishment might plausibly emerge.

January 21, 2007 at 10:01 AM | Permalink


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I'm a student.
I beleive we should be focusing more on changing behaviors rather than if a punishment is justified if we are to collectively move toward ending unlawful behavior. Which I see to be the goal of punishment in the first place. This would not only make for a safer community but would be a much more humane way of dealing with our fellow humans. Not to mention all the other positive repurcussions like more money for education or health care or on things that really make a difference in peoples lives. As it is, the US justice system obviously does not work considering the amount of repeat offenders in and out of the system. If lawmakers would view the current penal system as a way to just keep criminals from temporarily stopping aberrant behavior versus actually ending the behavior all together we might have less crowded jails and prisons and happy citizens who don't want to commit crimes. I believe this is possible but requires a totally different approach than the one we've been used to. And that would require a totally different mindset, one that most people wouldn't agree with in today's society.
This is just what I feel would help people in a meaningful way rather than just keep sending criminals back to jail.

Posted by: Jessica Berryhill | Feb 14, 2007 12:20:22 AM

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