Criminal conviction is not enough to express moral condemnation on its own, because punishment is necessary to show that criminal laws are more than empty words.
In liberal democracies like the United States, the government represents members of society. Thus, punishment is one way that society expresses its values. Not only does the fact of punishment communicate that the society condemns an action, but also the severity of the sentence communicates how much it condemns the criminal act. Feminist political theorist Jean Hampton explained that the expressive capacity of punishment is valuable because it allows society to convey solidarity with the victims of crime.
When people commit crimes, Hampton argued, they put their own goals and interests above those of the people they harm in the process. In cases of violent crime, this is especially true. Punishing Tsarnaev is a way of communicating that society values the lives of the victims. If the idea that punishment communicates solidarity with victims seems abstract, consider a case where a crime was inadequately punished. Brock Turner , a Stanford student who was found guilty of sexual assault of an unconscious female student, was sentenced to just six months in county jail, though he would only serve half that.
Many people were outraged at the short sentence, given the nature of his crime and the strong evidence against him. The sentence was interpreted as a lack of solidarity with the victim and with all victims of sexual assault. The recall was a message to other judges that citizens wanted harsher punishments for rapists because harsher sentences would convey that the lives of victims of rape matter. In the Tsarnaev case, victims and strangers alike have moral reasons not only to condemn his criminal actions but also to condemn him.
Many coercive measures are imposed even on those who have not been convicted, such as the many kinds of restriction that may be imposed on people suspected of involvement in terrorism, or housing or job restrictions tied merely to arrests rather than convictions.
Finally, theoretical discussions of criminal punishment and its justification typically focus, as this discussion has focused, on criminal punishment in the context of domestic criminal law. But a theory of punishment must also have something to say about its aims and justification in the context of international criminal law — about how we should understand, and whether and how we can justify, the punishments imposed by such tribunals as the International Criminal Court: for we cannot assume that a normative theory of domestic criminal punishment can simply be read across into the context of international criminal law see Drumbl Rather, the imposition of punishment in the international context raises distinctive conceptual and normative issues.
Another important question is how international institutions should assign responsibility for crimes such as genocide, which are perpetrated by groups rather than by individuals acting alone. Such questions arise in the domestic context as well, with respect to corporations, but the magnitude of crimes such as genocide makes the questions especially poignant at the international level.
Several scholars in recent years have suggested that rather than focusing only on prosecuting members of the groups responsible for mass atrocities, it may sometimes be preferable to punish the entire group qua group. A worry for such proposals is that they risk inflicting punitive burdens on innocent members of the group. In response to this concern, defenders of the idea of collective punishment have suggested that it need not distribute among the members of the group see Erskine , Pasternak , Tanguay-Renaud ; but see Hoskins b , or that the benefits of such punishment may be valuable enough to override concerns about harm to innocents see Lang Primoratz , Honderich , and Ellis are useful introductory books.
Duff and Garland ; Ashworth, von Hirsch; and Roberts ; and Tonry are useful collections of readings. Hoskins nottingham. Legal Punishment and its Justification 2. Punishment, Crime, and the State 3. Consequentialist Accounts 4. Retributivist Accounts 5. Punishment as Communication 6. Mixed Accounts 7.
Legal Punishment and its Justification The central question asked by philosophers of punishment is: What can justify punishment? Punishment, Crime, and the State Legal punishment presupposes crime as that for which punishment is imposed, and a criminal law as that which defines crimes as crimes; a system of criminal law presupposes a state, which has the political authority to make and enforce the law and to impose punishments.
Consequentialist Accounts Many people, including those who do not take a consequentialist view of other matters, think that any adequate justification of punishment must be basically consequentialist. Retributivist Accounts Whereas consequentialist accounts regard punishment as justified instrumentally, as a means to achieving some valuable goal typically crime reduction , retributivist accounts contend that punishment is justified as an intrinsically appropriate, because deserved, response to wrongdoing but see Berman for an argument that some recent versions of retributivism actually turn it into a consequentialist theory.
Punishment as Communication Perhaps the most influential version of retributivism in recent decades seeks the meaning and justification of punishment as a deserved response to crime in its expressive or communicative character. Further Issues The previous sections sketched the central contemporary accounts of whether and how legal punishment can be justified—and some of the objections and difficulties that they face.
Bibliography Primoratz , Honderich , and Ellis are useful introductory books. Adler, J. Alexander, L. Altman, A. Anderson, J. Ardal, P. Ashworth, A. Roberts eds. Duff and S. Zedner, and P. Tomlin eds. Bagaric, M. Baker, B. Cragg ed. Barnett, R. Becker, L. Bennett, C. Bentham, J. Berman, M. Green eds. Bianchi, H. Bickenbach, J. Boonin, D. Bottoms, A. Ashworth and M. Wasik eds. Braithwaite, J.
Tonry, Chicago: University of Chicago Press, — Brettschneider, C. Brooks, T. Burgh, R. Chiao, V. Flanders and Z. Hoskins eds. Christie, N. British Journal of Criminology , 1— Cottingham, J. Dagger, R. Laborde and J. Maynor eds. Daly, K. Davis, L. Davis, M. Tonry ed.
How Much? Deigh, J. Demetriou, D. Dempsey, M. Dimock, S. Dolinko, D. Dolovich, S. Drumbl, M. Duff, R. Besson and J. Tasioulas eds. White ed. Green and B. Leiter eds. Garland eds. Farmer, S. Marshall, and V. Falls, M. Farrell, D. Feinberg, J. Finkelstein, C. Flanders, C. Frase, R.
Garland, D. Garvey, S. Golash, D. Goldman, A. Hampton, J. Hanna, N. Hare, R. This is a violation of ordinal proportionality. Similar problems arise for other versions of the fair play view. Suppose, for instance, that the unfair advantage a criminal gains is not freedom from the burden of complying with the particular law she violates, but rather freedom from complying with the rule of law in general.
Critics have objected, however, that on this conception of the unfair advantage all offenses become, for the purposes of punishment, the same offense.
If the unfair advantage is the same, however, then removing the advantage would seem to require equal sentences. Again, such sentencing appears to violate ordinal proportionality. For the censure view, questions arise about what form of punishment and what severity will communicate the deserved message of condemnation in particular cases.
On such a view, the principles of ordinal proportionality appear to follow straightforwardly: censure should reflect the seriousness of the wrongdoing, and so if punishment is the vehicle of communicating censure, then sentences should reflect the appropriate relative degree of censure for each case.
The censure view should provide guidance not only about how severely to punish crimes relative to each other, but also how severely to punish in absolute terms, and also the appropriate mode of punishment. To say that manslaughter should be censured more severely than theft, for instance, does not actually tell us how severely to censure manslaughter or theft, or with what form of punishment. Again, the challenge is in determining how to anchor the sentencing scale to actual offenses.
Should the least serious offenses receive censure in the form of a small fine, a day in jail, or a year in jail? Should the most serious offenses receive capital punishment, life imprisonment, or some less severe sentence? Similar questions arise for accounts that characterize punishment as a deserved response to violations of trust, or as a deserved response to the incurrence of a moral debt.
What form and severity of punishment is appropriate to maintain conditions of community trust in response to attempted kidnapping, or the theft of a valuable piece of art?
How severe must a sentence be to resolve the moral debt that is incurred when one impersonates a police officer, or cheats on her taxes? Indeed, questions about fixing deserved sentences in response to particular offenses arise for retributivist accounts generally.
Critics have charged that retributivism is unable to provide adequate, nonarbitrary guidance about either the deserved severity or deserved form of punishment in particular cases see Shafer-Landau, Retributivists are, of course, aware of such objections and have sought to meet them in various ways.
Nonetheless, questions about proportionate sentencing continue to be a central challenge for retributivist accounts. In part as a response to objections commonly raised against consequentialist or retributivist views, a number of theorists have sought to develop alternative accounts of punishment. For some theorists, this question is best cast in terms of rights: why are the sorts of intended burdens characteristic of punishment, which would constitute rights violations if imposed on those who have not been convicted of criminal wrongdoing, not violations of the rights of those punished?
One way in which punishment would not violate the rights of offenders is if, in committing the crime for which they are convicted, they forfeit the relevant right s. Because offenders forfeit their right not to be punished, the state has no corresponding duty not to punish them. Notice that the forfeiture view itself does not imply any particular positive justification of punishment; it merely purports to explain why punishing offenders does not violate their rights.
This is consistent with maintaining that the positive justification of punishment is that it helps reduce crime, or conversely, that wrongdoers deserve to be punished. Thus the forfeiture view does not provide a complete account of the justification of punishment. Proponents, however, take this feature to be a virtue rather than a weakness of the view. The forfeiture claim raises a number of key questions: first, why does someone who violates the law thereby forfeit the right not to be punished?
For those who are gripped by the dilemma of why punishing offenders does not violate their rights, the mere answer that offenders forfeit their rights, without some deeper account of what this forfeiture amounts to, may seem inadequate. Thus some theorists attempt to ground their forfeiture claim in a more comprehensive moral or political theory see, for instance, Morris, Second, what is the nature of the rights forfeited? Do offenders forfeit the same rights they violate? If so, then this raises some of the same challenges as we saw with certain forms of retributivism: what right is forfeited by a childless kidnapper, for example?
Alternatively, is the forfeited right simply the right not to be punished? If every offender forfeits this same, general right, then on what basis can we distinguish what sentence is permissible for different offenders? For example, if the burglar forfeits the same right as the murderer, then what prevents us from imposing the same punishment in each case could two offenders forfeit the same right to different degrees, as some have suggested? Third, how should we determine the duration of the forfeiture?
Fourth, if an offender forfeits her right against punishment, then why does the state maintain an exclusive right to punish? Why are other individuals not permitted to punish? This is the central claim of the consent view. Defended most notably by C. Nino , the consent view holds that when a person voluntarily commits a crime while knowing the consequences of doing so, she effectively consents to these consequences.
In doing so, she waives her right not to be subject to punishment. This is not to say that she explicitly consents to being punished, but rather that by her voluntary action she tacitly consents to be subject to what she knows are the consequences.
Like the forfeiture view, the consent view does not supply a positive justification for punishment. To say that a person consents to some treatment does not by itself provide us with a reason to treat her that way.
So the consent view, like the forfeiture view, is compatible with consequentialist aims or with the claim that punishment is a deserved response to offending. One challenge for the consent view is that it does not seem to justify punishment of offenders who do not know that their acts are subject to punishment.
For someone to have consented to be subject to certain consequences of an act, she must know of these consequences. If so, then it is not clear how she can be said to consent to her punishment. It is not clear, for example, that a robber who knows that robbery is a punishable offense but does not realize the severity of the punishment to which she will be subject thereby consents to her sentence.
By contrast, other critics have charged that the consent view cannot rule out sentences that most of us would find excessive. This is because a person who voluntarily commits an action with knowledge of the legal consequences, whatever these consequences happen to be, has consented to be subject to the consequences. Another difficulty for the consent view is that tacit consent typically can be overridden by explicit denials of consent.
Thus it would seem to follow that one who tacitly consents to be subject to punishment could override this tacit consent by explicitly denying that she consents. But of course, we do not think that an offender should be able to avoid punishment by explicitly refusing to consent to it Boonin, Another proposed justification of punishment conceives of punishment as a form of societal self-defense.
First consider self-defense in the interpersonal context: When an assailant attacks me, he culpably creates a situation in which harm will occur: either harm to me if I do not effectively defend myself or harm to him if I do. In such a circumstance, I am justified in acting so that the harm falls on my attacker rather than on me. Similarly, when an offender creates a situation in which either she or her victim will be harmed, the state is permitted to use force to ensure that the harm falls on the perpetrator rather than on the victim Montague, So far, this view appears to justify state intervention only to stop ongoing crimes or ward off impending crimes.
How does this view justify punishment as a response to past crimes? Advocates of the view claim that the state is not only justified in intervening to stop actual offenses; it is also permitted to threaten the use of force to deter such crimes. For the threat to be credible and thus effective as a deterrent, however, the state will need to follow through on the threat in cases in which offenders are not deterred.
Thus punishment of offenders is permissible. Notice that although the self-defense account views punishment as a deterrent threat, it is not a pure consequentialist account. Critics object that the analogy between self-defense and punishment breaks down in a number of respects. But we do not typically believe that, by analogy, punishment of innocent people is permitted, even if such punishment helped to maintain the credibility of a deterrent threat.
Second, the degree of force that is permitted to stop an actual attack may far exceed what we intuitively believe would be permitted as punishment of an offense that has already been committed. Third, it is one thing to follow through on a threat in order to deter the person who has just offended from offending again. It is another thing—and one might argue, more difficult to justify—to punish one person in order to maintain a credible deterrent threat against the public generally.
If we believe the primary deterrent effect of punishment is as a general deterrent rather than as a specific deterrent , then the analogy with typical accounts of self-defense seems strained.
It would be as if, to deter the oncoming assailant from following through with his attack, I grab someone nearby who has previously attacked me and inflict the same degree of harm that I would aim to inflict on the assailant to defend myself. This might, of course, be permissible if my previous attacker had thereby acquired a duty to protect me from future harm by allowing himself to be punished as a means of maintaining a credible deterrent threat Tadros, The moral education view shares certain features of consequentialist accounts as well as retributivist accounts.
On this view, punishment is justified as a means of teaching a moral lesson to those who commit crimes and perhaps to community members more generally, as well. By contrast, a central feature of the moral education view is that those who commit crimes are moral agents, capable of reflecting on and responding to moral reasons. Another way to express this difference between the education view and standard consequentialist views is that consequentialist views focus entirely on whether punishment promotes some goal.
The education view, however, holds that only certain means are appropriate for pursuing this goal: namely, punishment aims to engage with the offender as a moral agent, to teach her that and why her behavior was morally wrong, so that she will reform herself. Thus we can even distinguish the education view from consequentialist accounts that aim at crime reduction through offender reform. The education view sets offender reform as an end, but it also grounds certain constraints on how we may appropriately pursue this end.
The education view, like the retributive censure view discussed earlier, views punishment as a communicative enterprise. Punishment communicates to offenders indeed, to the community more generally that what they have done is wrong. Thus on both accounts, punishment aims to encourage offenders to reform themselves. But whereas the retributive censure theorists view the message conveyed by punishment as justified insofar as it is deserved, education theorists contend that punishment is justified in virtue of what it aims to accomplish.
In this respect, the education view sits more comfortably with standard consequentialist accounts than with retributivist views. The education view conceives of punishment as aiming to confer a benefit on the offender, the benefit of moral education. This is not to say that punishment is not burdensome; as we have seen, its burdensomeness is an essential feature of punishment. But the burdens of punishment are intended to be ultimately beneficial.
Thus education theorists roundly reject accounts according to which it is permissible or even required to inflict harm on those guilty of wrongdoing. Instead, education theorists hold, following Plato, that we should never do harm to anyone, even those who have wronged us. Critics have raised various objections to the moral education view.
Some are skeptical about whether punishment is the most effective means of moral education. Others point out that many perhaps most offenders are not apparently in need of moral education: many offenders realize they are doing something wrong but do so anyway. Even those who do not realize this as they are acting may recognize it soon afterward.
Thus they do not seem to need moral education. Finally, some object that the education view is inappropriately paternalistic. Many liberal theorists are uncomfortable, however, with the idea that the state may coerce a person for her own benefit. The most famous articulation of a hybrid view comes from H. Hart , although there have been numerous attempts to develop such accounts both before and after Hart.
But if we ask how we may punish in particular cases, the answer will appeal to retributivist principles about proportionality and desert.
Some have distinguished these questions in terms of the proper consequentialist rationale of legislators in criminalizing certain types of behaviors and the proper retributivist rationale of judges in imposing sentences on those who violate the criminal laws. As we saw earlier, punishment actually raises a host of specific normative questions, and so if we accept the general strategy of distinguishing questions and answering them by appeal to different considerations, then there is no reason in principle to stop with only a two-level hybrid theory.
A hybrid view might offer distinct considerations in answer to a variety of questions: what is the positive aim of punishment? How severely may we punish in particular cases? What mode of punishment is permissible in particular cases? And so on. Also, although hybrid theories typically follow the pattern of aims and constraints, so that consequentialism provides the reason to have an institution of punishment and retributivism provides constraints on how we punish, there is no reason in principle why this could not be reversed.
A hybrid theory might hold that suffering is an intrinsically appropriate deserved response to wrongdoing, but then endorse as a constraint, for example, that such retributive punishment should never tend to undermine offender reform. Critics have charged hybrid accounts with being ad hoc and unstable. Why should retributivist proportionality considerations govern in sentencing if these conflict with the pursuit of crime reduction through deterrence?
Retributivists, after all, tend to regard consequentialism as providing inappropriate reasons to punish. Some scholars are unpersuaded by any of the standardly articulated justifications of punishment.
In fact, they conclude that punishment is morally unjustified, and thus that the practice should be abolished. An obvious question for abolitionists, of course, is what if anything should take the place of punishment.
That is, how should society respond to those who behave in ways committing tax fraud, burglary, assault, and so on that currently are subject to punishment?
One option would be to endorse a model of treatment rather than punishment. On this model, an offender is viewed as manifesting some form of disease or pathology, and the appropriate response is thus to try to treat and cure the person rather than to punish her. Treatment differs from punishment, first, because it need not be burdensome.
At least in principle, treatment could be pleasant. In practice, of course, treatment may often be burdensome—indeed, it may involve many of the same sorts of restrictions and burdens as we find with punishment. But even though courses of treatment may be burdensome, treatment does not typically convey the condemnation that is characteristic of punishment. After all, we generally think of those who are sick as warranting sympathy or concern, not condemnation.
Other options for abolitionists would be to endorse some model of restitutive or restorative, rather than criminal, justice. We might require that offenders make restitution to their victims, as defendants in civil lawsuits are often required to make restitution to plaintiffs Boonin, Or offenders might engage with victims in a process of restorative justice, one in which both offenders and victims play an active role, with aims of repairing the harms done and restoring the relationships that have been damaged Braithwaite, Like the other three, this fourth variant of an unfair advantage theory cannot seem to explain why offenders would generally obtain any greater benefits from committing more serious crimes.
Although prior unfair advantage theories sometimes try but always fail to account for the ordinal ranking of punitive desert, none even attempts to explain the cardinal measure in any meaningful way. None tries to explain why the magnitude of the purported illicit benefits is proportional to the absolute severity of the punishments that criminals seem to deserve.
For example, none offers any explanation for why a simple assault would provide the offender with an illicit benefit whose removal would require him to undertake a lengthy period of labor-intensive community service under reasonable conditions of incapacitation. Thus, prior variants cannot seem to account for the absolute severity of deserved punishments. In the final analysis, I contend that prior unfair advantage theories cannot account for the proportionality of punitive desert because they try to identify an illicit benefit that criminals generally obtain from committing their offenses.
But there seems no such benefit of a material, psychological, or more abstract kind. Some offenses do generate material and psychological benefits, but not all, such as many unsuccessful attempts. Moreover, even if there is a more abstract benefit from committing any crime, there seems no reason to believe it is greater for committing more serious crimes or of a magnitude proportional to the absolute severity of the punishments that criminals seem to deserve.
So to develop a more plausible unfair advantage theory, I do not seek to identify another type of benefit that people might obtain by violating their obligation not to commit crimes. Instead, in developing my proposed theory, I seek to identify a type of benefit that criminals stand to obtain by violating a distinct obligation that they incur from committing their crimes: an obligation of restoration.
Proportionality and a New Unfair Advantage Theory. When someone commits a crime without any exculpatory defenses, he undermines his trustworthiness.
At least three empirical findings support this negative inference about the character of an unexcused criminal. First, recidivism rates are high—a high percentage of offenders commit multiple crimes at different times. In other words, there is a low rate of specialization among criminals—a high percentage of offenders commit multiple types of crimes.
Assuming that a criminal undermines his trustworthiness by committing his offense, I argue that the criminal unacceptably risks causing others certain especially significant harms unless he restores his trustworthiness. In addition, an untrustworthy criminal also unacceptably risks causing others to incur certain costs of insecurity, which would constitute harms to others even if the criminal were never to commit another offense.
Three costs of insecurity seem especially salient. First, others might rationally need to invest in costly precautionary measures to protect themselves from an untrustworthy offender. For example, they might need to engage in costly monitoring of the criminal and to invest in costly protective services when interacting with him is unavoidable.
Second, others might rationally need to forgo pursuing some personally and socially valuable activities that would leave them too vulnerable to an untrustworthy offender.
In other words, people might rationally need to reduce their activity levels in response to the criminal. To avoid the unacceptable risk of causing others to incur the relevant harms, a criminal incurs an obligation to restore his trustworthiness expeditiously. For unless the criminal suffers such burdens, he will obtain an illicit benefit consisting in his freedom from the burdens necessary to fulfill his obligation of restoration.
In my view, this is the illicit benefit that a punishment can prevent a criminal from obtaining. According to the main principle of my proposed theory, a criminal deserves a punishment for his crime that is proportional to the burdens he must undertake to fulfill the obligation of restoration he incurs from committing his crime.
Now I argue that a criminal must in fact undertake some burdens to restore his trustworthiness. To restore it, the offender must signal his reform. To be credible, I suggest that a sign of reform must be costly. Thus, to demonstrate reform, I assume a criminal must send others a costly signal that he has developed a sufficiently benevolent character. To demonstrate the development of a highly benevolent character, the criminal can signal that she has acted with a sufficiently high degree of benevolence for a sufficiently long time after committing her crime.
To demonstrate that she has acted with such benevolence, she can sacrifice some of her sufficiently important personal interests for a sufficiently long time for the sake of benefiting others. To make such a sacrifice for others, the criminal can engage in labor-intensive community service, and she can do so under reasonable conditions of incapacitation to mitigate the costs of insecurity that others rationally must incur during the interim.
The more service she performs for the sake of benefiting others, the stronger it will serve as evidence that she has rectified the prior deficiency in her concern for others. Hence, to fulfill his obligation of restoration, and thereby restore his trustworthiness to a minimally acceptable degree, a criminal must undertake some burdens. At this point, I hope to have provided a reasonable explanation of why criminals deserve some punishment.
Now I argue that my proposed theory also yields a plausible account of the proportionality of punitive desert. It seems natural to assume then that criminals who commit more serious offenses must do more to restore their trustworthiness. They must sacrifice more of their personal interests for a longer time for the sake of benefiting others.
They must undertake a longer period of labor-intensive community service. In short, they must undertake a more severe burden to signal their reform. Thus, someone who commits a more serious crime deserves a more severe punishment because unless he suffers a more severe punishment, he will obtain the greater illicit benefit of freedom from the more severe burden necessary to fulfill his obligation of restoration.
In addition to explaining the ordinal ranking, my proposed theory also provides a reasonable account of the cardinal measure of punitive desert. It naturally explains why criminals deserve punishments that are proportional to lengthy sentences of labor-intensive community service performed under reasonable conditions of incapacitation. For according to my theory, the absolute severity of the most severe punishment that a criminal deserves for an offense corresponds to the absolute severity of the burdens that he must undertake to fulfill the obligation of restoration he incurs from committing the offense.
This account of the proportionality of punitive desert not only seems humane and reasonable, but also is more plausible than any alternative account proposed in the literature. Consider someone who commits a simple assault out of animosity toward his victims.
The offense reveals a particularly bad deficiency in his concern for the rights of others. To restore his trustworthiness, the offender must apologize to his victims and provide compensation for any harm he caused them.
But although necessary, that might not be sufficient. So even if the criminal had not rectified at all the revealed deficiency in his concern for others, he could still be willing to provide an apology and compensation. To provide a credible sign of reform, the criminal must sacrifice important personal interests for a long time for the sake of benefiting others.
More specifically, for some small number n , he must engage in n years of labor-intensive community service, and he must do so under reasonably humane conditions of incapacitation, in a prison, to mitigate the risk he poses to others while the service is performed. Now suppose the state sentences the offender accordingly, and he is cooperative and willing to restore his trustworthiness. He apologizes to his victims, provides any compensation owed to them, and undertakes the required punishment for the sake of helping others.
He undertakes n years of labor-intensive community service for the sake of benefiting others. In prison, he works to produce goods, such as clothes or medical supplies, that are distributed to those in need. After increasing his trustworthiness, he even works as a tutor for other prisoners, teaching them any special knowledge he might have to share about useful trades or subjects.
By the end of his n -year sentence, the criminal has restored his trustworthiness to a minimally acceptable degree. He has demonstrated that he has rectified the revealed deficiency in his concern for the rights of others.
In short, he has signaled his reform. So he has fully fulfilled the obligation of restoration he incurred from committing his crime. Now there is no illicit benefit that the criminal stands to obtain if he is not punished more. Therefore, he does not deserve any more punishment for his offense.
At this point, the state is not morally permitted to impose any additional punishment on the offender for committing the crime. Consider a person who commits the same simple assault as the previous cooperative criminal. Assuming her crime undermines her trustworthiness to the same degree, she must undertake the same n -year sentence to restore her trustworthiness to a minimally acceptable degree. However, unlike her cooperative counterpart, suppose this second offender remains persistently defiant, unapologetic, and unwilling to restore her trustworthiness to any degree.
She could restore it if she chose, but she refuses. Not only is she unwilling to undertake any service for the sake of benefiting others, she refuses to undertake any service at all.
Nevertheless, this defiant criminal still incurs the same obligation of restoration as her cooperative counterpart, and she must undertake the same n -year restorative sentence to fulfill it. So in response, suppose the state imposes on the defiant offender an n -year nonrestorative punishment with a severity proportional to the n -year sentence actually required to fulfill her obligation of restoration.
Unlike the restorative punishment that her cooperative counterpart undertakes, this nonrestorative sentence consists merely in a burdensome form of incarceration for n years without any service to others. Unless she suffers the nonrestorative punishment, she will obtain an illicit benefit of freedom from the burdens required to fulfill the obligation of restoration she incurs from committing her crime.
This is the illicit benefit that the n -year nonrestorative punishment prevents the defiant criminal from obtaining. After undergoing the nonrestorative punishment, the defiant criminal does not deserve any more punishment for her crime. Because she has suffered in proportion to the burdens required to fulfill her obligation of restoration, she does not stand to obtain an illicit benefit if she is not punished more.
Her nonrestorative punishment has made her no better off than she would have been if she had actually restored her trustworthiness to a minimally acceptable degree. But although the defiant offender does not deserve any more punishment after undergoing the n -year nonrestorative sentence, it is true that she is also no more trustworthy.
I leave it an open question whether the state would be morally permitted to incapacitate the offender longer on grounds of self-defense. I stress, though, that insofar as an additional term of incapacitation would be justifiable, the additional term would not be an additional punishment properly understood. Rather it would be a term of involuntary civil commitment analogous to the quarantine of someone with an infectious dangerous disease.
As such, the state would be obligated to mitigate the degree to which any longer term of incapacitation would be harmful to the defiant offender. As an alternative to a longer term of involuntary civil commitment, the state might choose to grant the defiant criminal a conditional release instead. The relevant conditions might, for example, require the offender to wear an ankle bracelet or report to a parole officer on a reasonably frequent basis.
Although these conditions would not eliminate the higher risk that the defiant offender poses to others, they would partially mitigate the risk. I also leave it an open question whether the offender would owe others any compensation for any additional costs of insecurity that they might rationally incur in response to her under the terms of such a conditional release. Consider someone who commits an aggravated murder, which is an extremely serious crime.
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