Criminal Justice and the Challenge of Family Ties

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome. When the presumption is overcome, we urge distributing the benefit on terms that are neutral to family status, if possible, with a focus instead on functions served by established relationships of care-giving responsibility

State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty

In the aftermath of Governor Ryan\u27s decision last year to commute the sentences of each offender on Illinois\u27 death row, various scholars have claimed that Ryan’s action was a “grave injustice” and, from a retributivist perspective, “an unmitigated moral disaster.” This Article contests that position, showing not only why a commutation of death row is permitted under principles of retributive justice, but also why it might be required. When properly understood, retributive justice, in its commitment to moral accountability and equal liberty, hinges on modesty and dignity in modes of punishment. In this vein, retributivism opposes the apparently ineluctable slide towards ever-harsher punishments in the name of justice. While the thesis I defend is sited in the particular context of the death penalty, the implications reach more broadly, as the argument offered here signals that a commitment to retributivism in no way impedes the realization of humane institutions of criminal justice and a rejection of the benighted, misbegotten, and often brutal status quo we shamefully permit to endure

Overcoming Tradeoffs in the Taxation of Punitive Damages

As explained in a companion piece, there is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, business defendants are not always punished to the degree that the jury intends. This is because jurors do not take into account the fact that these businesses are allowed to deduct their punitive damages awards. To solve this problem, President Obama recently proposed to make all punitive damages nondeductible, a proposal that has in the past been supported by a number of policy makers and academics. Unfortunately, the nondeductibility rule is doomed to fail in practice. Instead, the under-punishment problem is better solved through making juries and courts aware of the tax implications of punitive damages awards. While tax awareness would better address the under-punishment problem, it would at the same time increase plaintiffs’ windfalls. Sadly, there is simply no way under current punitive damages law to reduce under-punishment without simultaneously augmenting plaintiff windfalls. The tradeoff is a byproduct of the jumbled way current punitive damages law engrafts “public law” values on a private dispute resolution system not entirely capable of effectuating those values. To avoid such an unfortunate tradeoff, reform of punitive damages law would be required. This Article sketches a vision of such reform and describes its corresponding tax rules. In particular, the appropriate tax treatment of tort damages should depend on the particular purpose(s) being pursued and vindicated. In this respect, the recommendations here stake out a more nuanced middle path between those scholars and policy makers touting nondeductibility for all punitive damages and those endorsing the current rule allowing a deduction for all punitive damages paid by business defendants

Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate

In the last few years, scholars and policymakers in the area of criminal justice have focused an increasing amount of attention on two topics. The first is the retributivist theory of punishment ( retributivism );\u27 the second is the development of alternative sanctions to the orthodoxy of incarcerating criminals in publicly managed prisons. This Article is about what connections may properly be drawn between what justifies punishment and how we actually go about punishing offenders. A preliminary word on retributivism may be helpful. Retributivism is a theory about retribution, and retribution\u27s features, or its definition, may be understood in either a weak or a strong sense. The weak sense asserts that a criminal may be punished be- cause, and only because, in some sense he deserves that punishment, and that punishment should be meted out in proportion to the wrong committed and the blameworthiness of the offender. The strong sense incorporates the same desert and proportionality assertions, but also imposes an obligation: the criminal must be punished, regardless of the consequences. Many people attribute the strong thesis to Kant, and, without doubt, some of his most famous writings support that position. The recent scholarly and policymaking interest in retributivism stems in part from negative reactions to problems associated with recidivism, which indicate the failure of theories based on the specific deterrence or rehabilitation of the offender. Yet retribution\u27s renaissance has another explanation: the theory has a stronger rationale than it once seemed to have. For many years, defenders of retribution offered little justification for the basic retributive notion that criminals should be punished because they deserve to suffer for their wrongdoing. They thought the concept of desert was self-evidently attractive. Critics charged that when retribution is characterized this way, the theory does not offer much to elucidate why this intuition should be followed. It seemed that one could either agree with it or not. Those who agreed with the intuition were charged with having an insatiable psychological drive to exact revenge on behalf of victims or to express disgust at the wrong for the sake of communal solidarity