Long-Term Incarceration and the Moral Limits of Punishment

Hundreds of thousands of Americans are serving decades-long prison sentences. While scholars have established that these sentences are both economically inefficient and destructive of minority communities, a fundamental question remains: Is long term incarceration ever morally permissible? Understandably, the economists and sociologists of prison have not addressed this moral question. But neither have the philosophers of criminal law, who rarely consider sentencing issues. This Article seeks to fill this lacuna. It does so by reviving the moral and legal prohibition on degrading punishment. The Article argues that long-term incarceration is impermissibly degrading, on a par with the death penalty and penal torture. This Article maintains that punishment is impermissibly degrading, regardless of its proportionality or social utility otherwise, when it denies an offender's status as a human. Punishment reaches this threshold by denying the presence or worth of an offender's essentially human capacity to stitch moments together through time to construct a good life as a whole. While incarceration takes many forms, as this Article demonstrates, all prisons deprive inmates of the ability to associate freely with other people in society. This limitation gravely interferes with an offender's life project as the years pass by. More particularly, long-term confinement away from society inhibits the realization of certain associational goods, like having a family and a meaningful career, that one can develop only over time and which are foundational to almost all conceptions of the good life. The Article thus concludes that long-term incarceration treats an offender as a non-human-as a creature whose life-building capacity either does not exist or does not matter-and is therefore impermissibly degrading

VAGUE COMPARISONS AND PROPORTIONAL SENTENCING

The "small improvement problem" ("the Problem") applies when no option in a comparison is best nor, it seems, are the options equal, because a small improvement to one would fail to make it the better choice. I argue that vagueness causes the Problem, such that the options are vaguely equal or vaguely "related." I then unpack an important instance of the Problem, the comparison between a crime and a punishment upon which the ideal of a retributively deserved sentence is based. I argue that this comparison is not only vague, but remarkably vague, leading to an expansive array of "not undeserved" sentences. I conclude, however, that retributivism can only justify the least harmful "not undeserved" sentence

Torture and Respect

There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender's wrongdoing and an inefficient use of state resources. This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading. In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment-torture. What is torture, and why is it wrong to torture people? If we can answer this question, this Article maintains, then we can understand when and why certain punishments-like perhaps long-term incarceration-are impermissibly degrading, regardless of their proportionality or social utility otherwise. This Article develops an original theory oftorture. It argues that torture is the intentional infliction of a suffusive panic and that its central wrongness is the extreme disrespect it demonstrates toward a victim's capacity to realize value. Humans realize value diachronically, stitching moments together through time to construct a good ife as a whole. Torture takes such a being, one with a past and a future, and via the infliction ofa make it stop right now panic, converts her into a "shrilly squealing piglet at slaughter, " in Jean Amdry's words, restricting her awareness to a maximally terrible present

Editor’s Introduction: New Topics in Sentencing Theory

Two questions have dominated the intellectual history of the criminal law: What acts or omissions should the state criminalize? and Why is the state entitled to punish someone-that is, to intentionally harm them-when they commit an offense? However, since the decline of the rehabilitative ideal in the 19 7 0s,I and the subsequent rise of a racialized mass incarceration in the United States, a third question has officially joined the corpus: How much (and what sort of) harm should the state inflict on someone when they commit an offense? The reasons that inform our answers to this trinity of questions may overlap to a degree, but it is likely that as we journey from a theory of criminalization to a theory of punishment to a theory of sentencing, we will lose, gain, and refashion principles along the way. For instance, the (crude) beliefs that the criminal law ought to enforce interpersonal morality and that those who offend against interpersonal morality deserve to suffer do not imply very much about what sort of suffering-or, perhaps, mercymight be in order. This special issue of the New Criminal Law Review seeks to contribute to the still young field of sentencing theory, and to help discover the set of reasons that ought to calibrate and constrain state punishment. Given that the state in its capacity as punisher is at its most burdensome, with the dignity of offenders and their families often in the balance, the stakes are very high. Indeed, we might say that a reasonably liberal and just society depends for its existence-as a liberal society, as a just society, and, possibly, as a society at all 2 -on getting the right answer to the How much? question

The Limits of Retributivism

"Limiting retributivists" believe that the vagueness of retributive proportionality represents a moral opportunity. They maintain that the state can permissibly harm an offender for the sake ofcrime prevention and other nonretributive goods, so long as the sentence resides within the broad range of retributively "not undeserved" punishments. However, in this essay, I argue that retributivism can justy only the least harmful sentence within such a range. To impose a sentence beyond this minimum would be cruel from a retributive perspective. It would harm an offender to a greater degree without thereby increasing the realization of our retributivist ends. Thus, if our nonretributive policy aims required a harsher sentence, the offender's retributive desert could not provide the rationale, and we would need another theory that explains why, if at all, harming an offender as a means of realizing the desired nonretributive good is permissible

The Corrective Justice Theory of Punishment

The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question-central to determining the degree to which punishment is justified-is why society's need for general deterrence is an offender's problem. Why is it his responsibility to scare off wouldbe future offenders? His past offense does not magically render him accountable for the actions of total strangers. Existing theories of criminal justice are unable to answer this question. This Article fills the lacuna-justifying state punishment, but, more importantly, establishing its moral limits-with the help of tort law principles. It argues that deterrent punishment can be justified as a means of rectifying an offender's contribution to "criminality"-not merely the perceived but the objective threat of crime in society. Criminality chills the exercise of our rights, forces us to take expensive precautions, and exposes us to unreasonable risks of harm. By having increased the level of criminality in the past, an offender owes a duty of repair to society as a whole, a duty of "corrective justice" in the language of tort theorists. He can fulfill this duty by decreasing the threat of crime in the future. In this way, deterrent punishment does not merely sacrifice him to limit the problem offuture crime, for which he has no personal responsibility. Rather, it forces him to fulfill his own duty of repair

Two Theories of Deterrent Punishment

This Article inquires into the justification of state punishment. In developing this question it relies upon two premises. The first premise is that, to justify its extreme institutional costs, state punishment must deter crime to some sufficient degree.1 The second premise is a moral principle. It is a variation of the prohibition on using people as a mere means to the greater good2 : We must not sacrifice individuals as a means of mitigating harms or threats for which they have no responsibility. This "non-sacrifice principle," in one version or another, founds the liberal legal order and its conception of the individual as an inviolable bearer of rights. 3 The challenge-I think the central challenge of criminal law theory-is to explain how we can accept both premises and justify state punishment. For deterrent punishment seems to violate the non-sacrifice principle rather straightforwardly, as the state inflicts suffering upon an offender as a prudential warning to would-be future offenders, for whom the offender has no responsibility. I call this the "Means Problem." Why, if at all, is the state entitled to use offenders as a means of bringing about general deterrence

Stay the hand of justice? Evaluating claims that war crimes trials do more harm than good

An enduring dilemma in war is whether and how to punish those responsible for war crimes. In this essay, we analyze the most frequent criticisms made by war crimes trial skeptics, including the claims that such trials endanger prospects for peace by encouraging enemies to continue fighting, that they achieve only “victors’ justice” rather than real justice, and that, in any event, they are unnecessary due to the existence of more effective and less costly alternatives. We conclude, in accordance with a “moderate retributivism,” that when carried out consistently with established law and procedure, and when not dramatically outweighed by concerns that trials will exacerbate ongoing or future conflicts, prosecutions are a legitimate, and sometimes necessary, response to violations of the laws of war and international criminal law more broadly