Imprisonment

Prisoners, those who probably engaged in criminal activities, might possess different perceptions and notions of moral foundations than non-prisoners. Thus, assessing such foundations among the population without testing the validity of the measure may produce biased outcomes. To address the potential methodological issue, we examined the validity of the measurement model for moral foundations among prisoners and community members, i.e., non-prisoners. We conducted the measurement invariance test and measurement alignment to test whether the model was consistently valid across the groups. (...) We also employed the differential item functioning test to examine whether item responses were not biased between the different populations. Results demonstrated significant measurement non-invariance and differential item functioning. However, measurement alignment could address the non-invariance issue. Between-group comparisons of moral foundations were consistent with findings from prior research after performing the alignment. (shrink)

If there is no afterlife, imprisonment represents not only a deprivation of liberty but the permanent theft of the only conscious existence an individual will ever experience. This paper examines the ethical foundations of incarceration under a secular, finite-life framework. Standard justifications for imprisonment—retribution, deterrence, rehabilitation—require significant reevaluation when life is understood as the sole arena of conscious experience. The implications challenge proportionality in sentencing, the morality of life imprisonment, and the legitimacy of punitive systems that fail to maximize the (...) finite well-being available to each person. (shrink)

This paper establishes the drug economy as a co-product of the force execution layer of the Protected Class Architecture — simultaneously a black budget supplementation mechanism, a domestic population management system, a capital asset generation engine, and a supply chain that American military and intelligence infrastructure has protected rather than dismantled across eight decades and every administration of both parties. The prior chain runs without discontinuity from the CIA-Corsican heroin networks of 1947 through the Golden Triangle during Vietnam, through the (...) Mujahideen opium expansion of the 1980s, through the Contra cocaine networks, through the documented collapse and restoration of Afghan opium production following the 2001 invasion. The war on drugs is analyzed not as a failed policy but as a successful one: John Ehrlichman, Nixon’s domestic policy chief, stated in a 1994 interview that the war on drugs was designed explicitly to criminalize Black people and the antiwar left, disrupt their communities, and arrest their leaders. The domestic mechanism is documented through the twelvefold increase in incarcerated drug offenders since 1980, the racial arrest disparity documented by Human Rights Watch, and the private prison guaranteed occupancy contract architecture — which converts the incarcerated body into a capital asset and contractually obligates states to maintain incarceration levels regardless of crime rates. The paper applies the Observer framework’s seventeen-axis recursive palimpsest methodology to hold all functions simultaneously: supply chain management, black budget supplementation, population management, capital asset generation, and political disenfranchisement. The bilateral suppression analysis establishes that neither the political left nor right will name the mechanism because both sides have operated it. Falsification conditions are stated explicitly throughout. (shrink)

Chapter 2 takes up the question of why even acknowledged cases of American torture have been forgotten and ignored in public and political discourse. For example, the fact that the Bush administration implemented a torture program after the 9/11 terrorist attacks has effectively disappeared from public awareness. But the erasure of the post-9/11 torture program is just the most recent example of a long history of the use and erasure of the torture of people of color in America and abroad. (...) The use of torture in America began in the earliest days of colonization, continued through the institution of slavery, extended to the use of solitary confinement as punishment in the nineteenth century (that continues to this day), and occurred during the war in the Philippines at the turn of the twentieth century, the Vietnam War, the Cold War, and the War on Terror.. As I explain in this chapter, both the use of the torture and the erasure of torture are essential components in sustaining the ongoing myth of American civilization and moral decency and enforcing the boundaries of what I call “white moral citizenship”—membership in the community of those whose interests and welfare are viewed by the political, legal, and social realms as deserving respect and equal consideration. (shrink)

Chapter 1 explains and defends victim-centered moral definitions of torture and terrorism, which are derived from research on, and the testimony of, survivors of torture and terrorism. Put simply, to know what torture and terrorism are, we must first know what it is like to experience torture and terrorism. By looking at the experiences of survivors of “core cases” of torture and terrorism (such as Jean Améry’s account of his torture by the SS during World War II, and accounts of (...) the September 11, 2001, terrorist attacks), it becomes possible to understand the distinctive harms inflicted by torture and terrorism. Prioritizing the victims’ points of view is particularly important in cases in which victims are members of marginalized groups, where such violence may be widely tolerated by political, social, and legal institutions. Because of such toleration, these forms of violence are unlikely to be publicly recognized (let alone named) as torture or terrorism, even by the victims themselves. This means that relying on legalistic or standard definitions of torture and terrorism can effectively silence or obscure forms of violence that are not readily captured in those definitions. (shrink)

The goal of this book is to show how central institutions and practices in America continue to inflict terrorism and torture on thousands of innocent people, and to explore how and why this violence has been legally, socially, and politically tolerated (or simply ignored) for decades. Answering this question requires, first and foremost, foregrounding the experiences and testimony of victims of torture and terrorism, rather than focusing on the goals, beliefs, and intentions of those involved in inflicting these forms of (...) violence. This introductory chapter explains the goals of this book, explores the complex relationship between torture and terrorism, and summarizes the contents of the book’s chapters. (shrink)

Comprehensive exploration of the dimensions and scope of American torture and terrorism in four case studies: warfare and colonization throughout American history, correctional and immigration detention systems, police violence, and drone warfare Develops new victim-centred definitions of torture and terrorism Reveals how torture and terrorism have been embedded within American institutions since the country's founding.

Chapter 5 turns to the context of armed conflict and the use of drones to surveil and attack terrorism suspects in countries including Pakistan, Syria, Iraq, and Libya. Despite many critiques of the drone program, few scholars, and no political leaders, have described the drone program as a form of terrorism. Yet there is compelling evidence of the devastating and long-lasting impact of drone warfare and surveillance on the communities and individuals subjected to it, who are almost exclusively nonwhite and (...) non-Western. After discussing this evidence, the second part of the chapter turns to the question of why the terrorist nature of drone warfare has not been recognized or acknowledged by political leaders or many of the scholars who write on the ethics of drones. I argue that two dominant narratives around drone warfare—that drones are “precision” weapons, and that civilian casualties from drone attacks are nearly always “honest mistakes”—have contributed to the failure to see the terrorist nature of drone warfare and to the ongoing lack of accountability for the devastating impact of drone warfare on innocent people. (shrink)

Chapter 4 takes up the issue of white supremacist terrorism in America. While much scholarship on this issue focuses on the (very real) threat posed by nonstate white supremacist terrorism, this chapter reveals the complex and longstanding relationship between state and nonstate white supremacist terrorism. The complexity of this relationship makes it difficult to draw a neat distinction between state and nonstate forms of white supremacist terrorism in past eras and today. For example, while it is rare today for serving (...) law enforcement officers to openly endorse or be involved in acts of white supremacist terrorism, I show that contemporary practices of law enforcement that disproportionately affect Black Americans can nonetheless reflect and reinforce deeply embedded white supremacist assumptions and attitudes that can be traced to Jim Crow and before, regardless of the beliefs or intentions of law enforcement officers. (shrink)

Chapter 3 argues that the American correctional and immigration detention systems (which include prisons, jails, and immigration detention centers) are torturous institutions in which marginalized people are made vulnerable to conditions that amount to torture, including solitary confinement, overcrowding, exposure to sexual violence, and deprivation of decent food, warmth, and shelter. As with the cases of American torture discussed in Chapter 2, the use and toleration of torture within the American correctional and immigration detention systems expresses and reinforces the moral, (...) political, and social exclusion of those subjected to it, who are disproportionately people of color. (shrink)

Chapter 6 concludes this book by highlighting the importance of naming the forms of violence discussed in this book as torture and terrorism. Expanding the meaning of these terms, as I have done, is not simply a rhetorical move but reveals how widespread and engrained forms of violence inflicted by and through American institutions on people of color and other marginalized groups are relevantly like core cases of torture and terrorism. Naming these forms of violence as torture and terrorism foregrounds (...) the suffering inflicted by these forms of violence and highlights the urgency of combating the political, social, and legal narratives that continue to enable the erasure and ongoing infliction of torture and terrorism on thousands of innocent people in America and abroad. (shrink)

Recruiting incarcerated individuals as firefighters to slow the spread of wildfires is a controversial practice. We argue that, provided certain important conditions are met, this practice can be made ethically permissible. While these conditions have not yet been satisfied, we contend that achievable and promptly operable reforms—short of more comprehensive reforms to the criminal-legal system—could fulfill them. In this paper, we address three main arguments against this contentious practice: (1) firefighting is too risky for incarcerated individuals; (2) incarcerated firefighters are (...) both unduly induced into participation and exploited in their work; and (3) the future employment prospects for incarcerated firefighters are unsatisfactory. In response to these concerns, we propose actions including more comprehensive and frequent health screening, ensuring adequate safety training and equipment, and improving pathways to future firefighting employment. While the first two actions only reduce the chances of exploitation, we show how improving future firefighting employment can simultaneously reduce the chances of both exploitation and undue inducement. (shrink)

Marin Sabau, imputado por varios crímenes y detenido en un hospital penitenciario, solicitó y recibió la ayuda médica para morir a causa de una tetraplejia en el 2022 pese a la oposición legal de sus víctimas. Este capítulo busca identificar los elementos que permitieron que la eutanasia de una persona en detención se considerara jurídicamente aceptable en España. Con este objetivo, estudiaremos los requisitos legales para recibir la eutanasia, así como los argumentos de los abogados de las víctimas y las (...) decisiones de los distintos órganos judiciales. Una vez hecho esto, observaremos la relevancia de que la eutanasia tenga la calidad de prestación sanitaria en este tipo de casos. (shrink)

Foucault traced the history of a form of testimony he labelled ‘avowal’ (aveu) – effectively a social institution of testimony that counts, necessarily, as true. Looking to the present, I will focus on two institutions of testimony, each of which forms part of a system of procedures of criminal justice – one in the U.K. and the other in the U.S. – and I will analyse them as present-day institutional constructions of avowal. Each practice involves a highly problematic degree of (...) testimonial extraction under unequal power, one ostensibly a technique of rehabilitation, the other ostensibly a technique of investigation. I will tentatively suggest that forms of avowal have a necessary role to play in our interpersonal and institutional lives, but that avowal’s obvious inherent tendency to assume abusive forms means it should be a permanent focus of suspicion, regulation, and ground-up critique. (shrink)

This article responds to contributions to an Author Meets Critics book symposium addressing the author's book Restorative Justice and Lived Religion: Transforming Mass Incarceration in Chicago (New York University Press, 2024). It further develops the account I develop in my book regarding how restorative justice has emerged as a transformational social movement, and what such a movement can do to address harms that are not merely perpetuated by one individual against another but reproduced by an entire “justice” system. To accomplish (...) this, I explore the ways that several lived restorative justice initiatives on the South and West sides of Chicago both resist, but also transformatively engage, the U.S. criminal legal system. In light of this focus, in the first part of this response, I return to the controversy among contemporary restorative justice practitioners over the ability—or alleged inability—of restorative justice to transform systemic injustices. I reiterate that restorative justice must be understood holistically, taking into account what I argue are its distinctive moral and spiritual dynamics. Doing so, I contend, allows us to overcome a prison reform vs. prison abolition dichotomy that has emerged in scholarship and activism. In the second part of this response, I reflect on the colonial and racial dynamics that undergird work in the scholarly community’s restorative justice and lived religion spaces. (shrink)

Both proponents and opponents of capital punishment largely agree that death is the most severe punishment that societies should consider imposing on offenders. This chapter considers how (if at all) this ‘Ultimate Thesis’ can be vindicated. Appeals to the irrevocability of death, the badness of being executed, the badness of death, or the harsh condemnation societies express by sentencing offenders to death do not succeed in vindicating this Thesis, and in particular, fail to show that capital punishment is more severe (...) than the most likely alternative punishment offenders would suffer, namely, lifelong incarceration. The most plausible vindication of the Ultimate Thesis instead resides in how being condemned to death alters a person’s psychological relation to death. Our ordinary tendencies toward “death denial” diminish the terror that our awareness of death can otherwise induce in us, thereby enabling us to pursue worthwhile lives despite knowing of death’s inevitability. But condemned individuals are continually compelled to confront both the reality and specific circumstances of their own deaths and so do not enjoy the protective psychic shield that death denial provides us. This ‘relational’ rationale does not obviously succeed in proving the Ultimate Thesis, but if the Thesis is true, this rationale is essential to its justification. (shrink)

Almost a year after the enactment of the law regulating euthanasia in Spain, public opinion was shocked to learn that a defendant in criminal proceedings obtained medical assistance in dying following injuries sustained in an exchange of gunfire with the police after having committed a series of severe crimes. Although there are very few cases in the world where prisoners have received euthanasia, the one we will discuss in this article is the only known case where both the public prosecutor's (...) office and the private prosecutors judicially opposed the defendant's euthanasia. This article aims to offer a new perspective on the ethical legitimacy of detainees' access to euthanasia: the ethics of caring solidarity. To do this, we will first place the case in its legal context. Subsequently, we will address the two main arguments proposed in the literature to justify euthanasia in detention: respect for the autonomy of the detainee and the principle of equivalence of care. Finally, after having identified serious shortcomings in both arguments, we will argue that the perspective of caring solidarity offers a better ethical basis for people in detention's access to euthanasia. (shrink)

In the face of widespread structural injustice, many people feel hopeless. Is hope valuable for political activism, or is it naive, impractical, or even counterproductive? Here I focus on collective hope as opposed to individual hope. I argue that collective hope can both sustain us in our political commitments and generate new commitments; it is therefore particularly valuable for activist movements and should be cultivated. Through the contemporary example of the prison abolition movement, I address pessimistic and pragmatic worries about (...) political hope, show how collective hope motivates political action through activities of shared imagination, and introduce the concept of holding hope. In order for collective hope to emerge, some members of a group need to hold hope for the collective by sustaining their individual hope and supporting the capacity of other individuals to hope. (shrink)

At the heart of Jennifer Lackey's recent book is highly original work in identifying a form of testimonial injustice that is quite distinct from those hitherto identified. Since the publication of Miranda Fricker’s Epistemic Injustice there has been an enormous flurry of work done on injustices where people are wronged as givers of knowledge (testimonial injustice) or where people are wronged in their capacity as a subject of social understanding (hermeneutical injustice). Fricker’s focus in that book was on cases where (...) people are not believed or where deflated credibility is given to their word as a result of prejudice in the hearer . However, Lackey points out that there are many instances where people are wronged not by being granted too little credibility but by being given too much credibility. False confessions, guilty pleas, and eyewitness testimony are sometimes taken as sufficient to imprison people or even execute them, despite the fact that the testimony in question has been extracted through manipulation, deception, and coercion and despite the fact that other evidence is lacking or conflicts with the false confessions, guilty pleas, or eyewitness testimony. (shrink)

Incarceration remains the foremost form of sentence for serious crimes in Western democracies. At the same time, the management of prisons and of the prison population has become a major real-world challenge, with growing concerns about overcrowding, the offenders’ well-being, and the failure of achieving the distal desideratum of reduced criminality, all of which have a moral dimension. In no small part motivated by these practical problems, the focus of the present article is on the ethical framework that we use (...) in thinking about and administering criminal justice. I start with an analysis of imprisonment and its permissibility as a punitive tool of justice. In particular, I present a novel argument against punitive imprisonment, showing it to fall short in meeting two key criteria of just punishment, namely (i) that the appropriate individual is being punished, and (ii) that the punishment can be adequately moderated to reflect the seriousness of the crime. The principles I argue for and that the aforementioned analysis brings to the fore, rooted in the sentient experience, firstly of victims, and not only of victims but also of the offenders as well as the society at large, then lead me to elucidate the broader framework of jurisprudence that I then apply more widely. Hence, while rejecting punitive imprisonment, I use its identified shortcomings to argue for the reinstitution of forms of punishment that are, incongruently, presently not seen as permissible, such as corporal punishment and punishments dismissed on the basis of being seen as humiliating. I also present a novel view of capital punishment, which, in contradiction to its name, I reject for punitive aims, but which I argue is permissible on compassionate grounds. (shrink)

It has been argued that the social circumstances of many children of prisoners goes against established principles of social justice. In this paper the proper allocation of responsibility for remedying this social injustice is discussed. Through a discussion of four principles for allocating remedial responsibility, it is argued that the responsibility for children of incarcerated parents is shared among several actors, including the incarcerated parent, remaining caregivers, prison officials, social work professionals, and, to some extent, members of the wider community. (...) While incarcerated parents are partially responsible for remedying the harm caused to their children, prison officials have the responsibility to uphold the types of prison conditions under which incarcerated parents are able to fulfill their responsibilities to their children and socially contribute to their well-being. Similarly, whereas the main responsibility to care for the children of incarcerated parents falls on the caregivers (such as the remaining parent or other family relatives), states are at the same time responsible for implementing social welfare policies of the sort that can help caregivers fulfill their responsibilities for the well-being of these children. As for individual members of the wider community, they have an obligation not to contribute to the stigmatization and marginalization of the families of incarcerated individuals. (shrink)

Le contexte des prisons africaines offre amplement matière à revisiter l’idée classique de l’inutilité de certaines criminalisations. Dans un monde plus que jamais dominé par le spectacle des châtiments et des modèles de justice expéditives, il est bienvenu de replacer le rôle de l’éducation dans la prison, puisque tout détenu emprisonné, aussi démuni et à plaindre soit-il, est riche de son temps, et capable de résilience et de perfectionnement. Encore faut-il, sous peine de paraître très idéaliste, dessiner de manière convaincante (...) les lignes directrices de la rédemption par la formation et les études dans le cadre de la prison. Les prisons ne sont pas des mouroirs, tel est le leitmotiv de l’entretien passionnant entre sept spécialistes des prisons dans l’enceinte de la prison de Libreville et le truchement de l’œuvre de Diangitukwa et de Siadous. (shrink)

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – that even if responsibility skepticism is correct, society should maintain a responsibility‐realist/retributivist criminal justice (...) system – is generally compelling, it would not work if a majority of society were to convert, theoretically and psychologically, to responsibility skepticism. In this (highly improbable) scenario, and only in this (highly improbable) scenario, the criminal justice system would need to be reformed in such a way that it aligned with the majority's responsibility‐skeptical beliefs and attitudes. (shrink)

Lisa Tessman (2016: 164) recounts the case of a Jewish mother, running from Nazis, who faced a terrible choice. She could (a) drown her infant, or (b) accept the virtual certainty that her baby’s cries would doom the refugee group she was fleeing with. Given those options, (b) is worse. If the whole group is discovered, many will die, including the infant. Still, preemptively drowning a baby—indeed one’s own baby—is a terrible act. To make sense of cases like this, Tessman (...) turns to the concept of moral failure: an act that violates an important moral value such that the loss cannot be fully redeemed by gains elsewhere. I will argue that criminal justice needs a moral framework like Tessman’s. It needs to make sense of the fact that some options are genuinely better than others, without letting honorifics like ‘justice’ obscure the equally important fact the best available option might be terrible. More specifically, I will argue that when punishment involves prison, as it often does, it is a moral failure. It can be justified only in the sense that preemptively drowning an infant can be justified: like the fleeing mother, society might on some terrible occasions find itself with no better alternative. (shrink)

This paper considers three possible ways of understanding the claim that the American criminal justice system is racist: individualist, “patterns”-based, and ideology-based theories of institutional racism. It rejects an individualist explanation of institutional racism because such an explanation fails to explain the widespread prevalence of anti-black racism in this system or indeed in the United States. It considers a “patterns” account of institutional racism, where consistent patterns of disparate racial effect mimic the structure of intentional projects of racial subjugation like (...) slavery or Jim Crow. While a “patterns” account helpfully directs attention to the effects of policies and practices that make up an institution, it does not fully explain the deep roots of anti-blackness in the criminal justice system in the United States. The paper concludes by defending an ideology-based theory of institutional racism for understanding the criminal justice system because the stereotype of the black criminal has a mutually reinforcing relationship with the patterns of disparate outcome for black people in the criminal justice system. This relationship creates a looping effect where the stereotype of the black criminal fuels the disproportionate involvement of black people in the criminal justice system, and the disproportionate representation of black people with felony records, in prisons, brutalized in police encounters, and so on reinforces the idea that black people are especially prone to criminality. Ideological approaches to racism that integrate attention to the patterns of disparate effect best explain what it means to say that the criminal justice system is racist. (shrink)

This paper advocates for a general policy of penal leniency: judges should often sentence offenders to a punishment less severe than initially preferred. The argument’s keystone is the relatively uncontroversial Minimal Invasion Principle (MIP). MIP says that when more than one course of action satisfies a state’s legitimate aim, only the least invasive is permissibly pursued. I contend that MIP applies in two common sentencing situations. In the first, all sentences within a statutorily specified range are equally proportionate. Here MIP (...) applies directly. In the second, judges reasonably believe that one of the sentences within the range is the most proportionate, but can’t identify it with any certainty. In these cases of sentencing uncertainty, judges must be indifferent between their preferred sentence and a softer one, and this indifference triggers MIP. MIP thus frequently mandates some degree of leniency. I conclude with some comments on statistical uncertainty. (shrink)

Précis of Rejecting Retributivism: Free Will, Punishment, and Criminal Justice (2022).

This chapter outlines six distinct reasons for rejecting retributivism, not the least of which is that it is unclear that agents possess the kind of free will and moral responsibility needed to justify it. It then sketches a novel non-retributive alternative called the public health-quarantine model. The core idea of the model is that the right to harm in self-defense and defense of others justifies incapacitating the criminally dangerous with the minimum harm required for adequate protection. The model also draws (...) on the public health framework and prioritizes prevention and social justice. It is argued that not only does the public health-quarantine model offer a stark contrast to retributivism, but it also provides a more humane, holistic, and effective approach to dealing with criminal behavior, one that is superior to both retributivism and other leading non-retributive alternatives. (shrink)

It is often thought that traditional recidivism prediction tools used in criminal sentencing, though biased in many ways, can straightforwardly avoid one particularly pernicious type of bias: direct racial discrimination. They can avoid this by excluding race from the list of variables employed to predict recidivism. A similar approach could be taken to the design of newer, machine learning-based (ML) tools for predicting recidivism: information about race could be withheld from the ML tool during its training phase, ensuring that the (...) resulting predictive model does not use race as an explicit predictor. However, if race is correlated with measured recidivism in the training data, the ML tool may ‘learn’ a perfect proxy for race. If such a proxy is found, the exclusion of race would do nothing to weaken the correlation between risk (mis)classifications and race. Is this a problem? We argue that, on some explanations of the wrongness of discrimination, it is. On these explanations, the use of an ML tool that perfectly proxies race would (likely) be more wrong than the use of a traditional tool that imperfectly proxies race. Indeed, on some views, use of a perfect proxy for race is plausibly as wrong as explicit racial profiling. We end by drawing out four implications of our arguments. (shrink)

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration. This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs. Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically. This essay fills that (...) void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes. On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society. (shrink)

Research has probed the consequences of providing people with different types of information regarding why a person possesses a certain characteristic. However, this work has largely examined the consequences of different information subsets (e.g., information focusing on internal versus societal causes). Less work has compared several types of information within the same paradigm. Using the legal system as an example domain, we provided children (N=198 6- to 8-year-olds) with several types of information—including information highlighting internal moral character, internal biological factors, (...) behavioral factors, and societal factors—about why a specific outcome (incarceration) might occur. We examined how such language shaped children’s attitudes. In Study 1, children reported the most positivity toward people who were incarcerated for societal reasons and the least positivity toward people who were incarcerated for their internal moral character; attitudes linked with behavioral information fell between these extremes. Studies 2a-2b suggested that Study 1’s effects could not be fully explained by participants drawing different about individuals in Study 1. Study 3 replicated Study 1’s results and showed that information linking incarceration with internal biological factors led to more positivity than information linking incarceration with internal moral character. Finally, Study 4 suggested that the patterns found in Studies 1 and 3 generalize to non-punitive contexts. Moreover, Study 4 found that the effects in Studies 1 and 3 emerged regardless of whether information was communicated via explanations or descriptions. These results demonstrate that how we express our beliefs about social phenomena shape the realities in which others live. (shrink)

In this article, I explore Seth Farber’s critique in _The Spiritual Gift of Madness_ that the leaders of the Mad Pride movement are failing to realize his vision of the mad as spiritual vanguard of sociopolitical transformation. First, I show how, contra Farber’s polemic, several postmodern theorists are well suited for this leadership (especially the Argentinian post-Marxist philosopher Ernesto Laclau). Second, I reinterpret the first book by the Icarus Project, _Navigating the Space between Brilliance and Madness_, by reimagining its central (...) metaphor of Icarus in the context of late capitalism as a prison world. Finally, I conclude with four strategies derived therefrom for higher functioning mad leaders to transform our penitentiary world. (shrink)

As several scholars have argued, far from being antithetical to American values, the torture of nonwhite peoples has long been a method through which the United States has enforced (at home and abroad) a conception of what I will call “white moral citizenship." What is missing from this literature, however, is an exploration of the role that the erasure of torture, and the political and public narratives that are used to justify torture, plays in this function. -/- As I will (...) demonstrate in this article, the erasure of American torture takes at least three different but mutually reinforcing forms: erasure of the fact of torture, erasure of the experience of torture, and erasure of the victims of torture. Erasure of the fact of torture occurs when lack of education and public discussion creates widespread ignorance about the history of torture in America, as has occurred in relation to the post-9/11 torture program. Erasure of the experience of torture occurs when victims’ experiences of extreme suffering, and practices or institutions that inflict extreme suffering (such as solitary confinement), are not acknowledged as forms of torture. Erasure of the victims of torture occurs when victims are treated with indifference and even contempt, even when what they suffered is acknowledged to be torture, and their perspectives and experiences are dismissed, minimized, or ignored. -/- As I shall argue, both the use of the torture and the forms of erasure described above are essential components in the ongoing enforcement of the normative boundaries of American white moral citizenship and the myth of American exceptionalism and civilization. The repeating pattern of the use and erasure of torture leads to the ongoing toleration of practices that constitute torture and that overwhelmingly impact people of color. Until this pattern of justification and erasure is recognized and confronted, torture will continue to be embedded within American culture and institutions. (shrink)

Many philosophers and legal theorists worry about punishing the socially disadvantaged as severely as their advantaged counterparts. One philosophically popular explanation of this concern is couched in terms of moral standing: seriously unjust states are said to lack standing to condemn disadvantaged offenders. If this is the case, institutional condemnation of disadvantaged offenders (especially via hard treatment) will often be unjust. I describe two problems with canonical versions of this view. First, its proponents groundlessly claim that disadvantaged offenders may be (...) punished as severely as advantaged ones, even though such punishment is unjust in light of the state’s loss of standing. Second, and more importantly, moral standing arguments prohibit states from blaming advantaged as well as disadvantaged offenders. This unwelcome outcome suggests that standing approaches incorrectly analyze the source of moral misgivings about punishing the disadvantaged. I conclude that those who share such concerns should put standing accounts aside. (shrink)

In this article, I argue that even if we hold that at least some paternalistic behaviour is impermissible when directed towards innocent persons, in certain cases, the same behaviour is permissible when directed towards criminal offenders. I also defend the claim that in some cases it is morally preferable to behave paternalistically towards offenders as an alternative to traditional methods of punishment. I propose that the reason paternalistic behaviour is sometimes permissible towards an offender is the same reason that inflicting (...) intentional harm on an offender is permissible – namely, that it is sometimes a morally justified method of punishing an offender for his wrongdoing. (shrink)

Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide. Punishment (2nd edition) is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine all leading contemporary theories (...) of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking. This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology. "Lucid, fair-minded, and well-informed, Thom Brooks’ Punishment offers a superb introduction to a complex and contentious subject. Many a perplexed student will find illumination in his patient discussion of each of the leading theories. The way Brooks shows their interconnectedness and application in practice – to capital punishment, juvenile offenders, domestic violence, and the like – will interest not only students but scholars as well." ―Stuart P. Green, Distinguished Professor of Law and Nathan L. Jacobs Scholar, Rutgers School of Law "As a topic in moral and political philosophy, punishment has been jolted back to life. In the last quarter century, retribution has returned with a vengeance, both in the theoretical literature and (with a very different emphasis) in public policy. The rise of the victim as a player in the criminal justice system has also fuelled a counter-trend, placing an emphasis on redress. Human rights, privatization, globalization, the rise of the therapist, the lobbyist, the terrorist: all have affected our ways of punishing and of thinking about punishment. A new survey of the terrain is overdue. And who better to conduct it than Thom Brooks, whose grasp of the literature and feel for the issues is second to none? From the noble ideals of ‘communicative’ theory to the grim realities of children in prison: in Punishment Brooks covers it all with insight, rigour, and energy." ―John Gardner, Professor of Jurisprudence, University of Oxford "Thom Brooks has produced a valuable introduction to, and critical survey of, current theoretical approaches to punishment together with an analysis of their implications for practice. In addition, he has provided a spirited defence of a new, unified theory inspired by the British Idealists and encompassing retributive, consequentialist, and restorative elements. Written in a lucid and engaging style, the book will interest a wide range of readers – students, theorists of punishment, as well as those engaged in criminal justice policy." ―Alan Brudner, Albert Abel Professor Emeritus, Faculty of Law, University of Toronto. (shrink)

Retributivism is one of the most prevalent theories in contemporary penal theory. However, despite its popularity it is frequently argued that too little attention has been paid to the implications of retributivism for prison management and prison life, including prison visits and furlough. More so, it has been questioned both whether the various forms of retributivism found in the philosophical literature on criminal punishment have anything to say about what prison life ought to be like and whether they are able (...) to criticize deeply contested rules and practices, such as those that deny inmates contact with family-members for the sake of prison discipline. In this paper, we argue that prison visits and furlough have a crucial role in a prison system based on retributivist principles. In particular, we argue that the communicative theory of punishment has important theoretical resources for proving a strong and compelling rationale for both furlough and visitation on retributivist grounds. Besides exploring this rationale, we also discuss the practical implications of this view for the penal policy. (shrink)

Are we justified in keeping the demented in prison for crimes they committed when they were still healthy? The answer to this question is an issue of considerable practical importance. The problem arises in cases where very aged criminals exhibit symptoms of dementia while serving their sentence. In these cases, one may wonder whether lodging these criminals in penal institutions rather than in normal caretaking facilities is justifiable. In this paper, I argue that there are justificatory reasons for punishing the (...) demented for their past crimes. In part 2, I examine three theories of punishment—retributivism, prevention theories and expressivism—with regard to the question of whether they provide justificatory reasons for punishing the demented. I argue that only expressivism provides these reasons. In part 3, I defend the view that expressivism, though not convincing as a general theory of punishment, is plausible if applied only to a specific subclass of punitive actions. More precisely, expressivism, or so I argue, is plausible with regard to those acts of punishment that consist in intending to inflict suffering without actually inflicting suffering. Since the punishment of demented patients falls within this class, it can be justified on an expressivist basis. In part 4, I discuss six objections to my view and rebut them. (shrink)

It has been proposed that reoffending could be reduced by manipulating the neural underpinnings of offenders’ criminogenic mental features with what have been called neurocorrectives. The legitimacy of such use of neurotechnology – criminal neurorehabilitation, as the use is called – is usually seen to presuppose valid consent by the offenders subjected to it. According to a central criticism of nonconsensual criminal neurorehabilitation, nonconsensual use of neurocorrectives would express a degrading attitude towards offenders. In this article, I consider this criticism (...) of nonconsensual criminal neurorehabilitation. By using cases of autonomous persons who lead a subservient existence as an example, I propose that nonconsensual criminal neurorehabilitation need not express a more degrading attitude towards offenders than consensual criminal neurorehabilitation. The argument of this article does not show that nonconsensual criminal neurorehabilitation is morally or legally acceptable. Yet, in view of the argument, criticizing nonconsensual criminal neurorehabilitation for expressing a degrading attitude towards offenders is not compatible with simultaneously endorsing consensual criminal neurorehabilitation. (shrink)

Imprisonment is often said to be the ultimate back-up sanction for offenders who do not abide by their non-custodial sentence. From a standard consequentialist perspective this is morally justified, if it is a cost-effective means to crime prevention. In contrast, the use of imprisonment as a back-up is much harder to justify from retributivist perspectives, with their emphasis on just desert or deserved censure. The crux is this: if the reason for a non-custodial sentence is that a prison sentence risks (...) being a disproportionate or inappropriate sanction, retributivists need to explain how a prison term can be warranted as the backup sanction for those who breach the requirements of their non-custodial sentence, even though their original crime wasn’t serious enough to warrant imprisonment in the first place. The aim in this paper is to critically assess the extent to which retributivists can justify the use of imprisonment as the ultimate back-up sanction. In doing so, I first examine two broad strategies that are discussed in the literature, and which retributivists could employ in order to respond to this problem. The first strategy stresses how desert has only a limited role in sentencing such that it demarcates a range of deserved punishment. On this view, associated with limiting retributivism, one could initially opt for a less harsh yet deserved punishment, leaving room for the imposition of back-up sanctions when needed. The second strategy focuses on how the act of breach is a reprehensible act that can allow for a penalty increase, and thereby lead to imprisonment. Although it is argued that both strategies fail, the paper proposes an alternative solution to this problem. (shrink)

In some jurisdictions, the institutions of criminal justice may subject individuals who have committed crimes to preventive detention. By this, I mean detention of criminal offenders (i) who have already been punished to (or beyond) the point that no further punishment can be justified on general deterrent, retributive, restitutory, communicative or other backwardlooking grounds, (ii) for preventive purposes—that is, for the purposes of preventing the detained individual from engaging in further criminal or otherwise socially costly conduct. Preventive detention, thus understood, (...) shares many features with the quarantine measures sometimes employed in the context of infectious disease control. Both interventions involve imposing (usually severe) constraints on freedom of movement and association. Both interventions are standardly undeserved: in quarantine, the detained individual deserves no detention (or so I will, for the moment, assume), and in preventive detention, the individual has already endured any detention that can be justified by reference to desert. Both interventions are, in contrast to civil commitment under mental health legislation, normally imposed on more-or-less fully autonomous individuals. And both interventions are intended to reduce the risk that the constrained individual poses to the public. Yet despite these similarities, preventive detention and quarantine have received rather different moral report cards. (shrink)

In this article, I seek to answer the following cluster of questions: What would a characteristically African, and specifically relational, conception of a criminal trial’s final end look like? What would the Afro-relational approach prescribe for sentencing? Would its implications for this matter forcefully rival the kinds of penalties that judges in South Africa and similar jurisdictions typically mete out? After pointing out how the southern African ethic of ubuntu is well understood as a relational ethic, I draw out of (...) it a certain conception of reconciliation that I advance as a strong candidate for being the proper final end of a criminal trial. I argue that, far from requiring forgiveness, seeking reconciliation can provide strong reason to punish offenders. Specifically, a reconciliatory sentence is one that roughly has offenders reform their characters and compensate their victims in ways the offenders find burdensome, thereby disavowing the crime and tending to foster cooperation and mutual aid. I argue that this novel account of punishment is a prima facie attractive alternative to more familiar retributive and deterrence rationales, and that it entails that widespread practices such as imprisonment and mandatory minimum sentences are unjust. (shrink)

It is largely unethical to sentence individuals who are addicted to drugs to prison. While substance use can be a crime, it must be treated differently from other crimes because addiction is a psychiatric disorder. Prisons are penal institutions. Legitimate goals of penal sanctions include retribution, deterrence, rehabilitation, and incapacitation.[i] Most of these goals do not speak to those with substance use disorder, and incarceration may be counterproductive given the wide availability of drugs and feeble rehabilitation efforts in prison. Further, (...) it may be the case that substance use disorder impairs an addict’s autonomy, calling into question his criminal culpability. Our understanding of substance use disorder has evolved and our prison sentencing practices must do the same. This paper will first provide background on substance use disorder as a psychiatric disorder. Then, the need to focus on rehabilitating rather than punishing those with substance use disorder who commit crimes will be explored. Finally, this paper will address whether an individual with substance use disorder can be considered culpable for any crime—regardless of severity—and whether that individual’s autonomy is impaired due to his addiction. I conclude that culpability should depend on whether the serious crime would have occurred in the absence of the drug addiction. In most cases, it is unethical to sentence an individual with substance use disorder to prison where other options such as home confinement are available. (shrink)

I argue that given the persistent injustice present within the Prison Industrial Complex in the United States, many incarcerated individuals would be justified in attempting to escape and that these prison breaks may qualify as acts of civil disobedience. After an introduction in section one, section two offers a critique of the classical liberal conception of civil disobedience envisioned by John Rawls. Contrary to Rawls, I argue that acts of civil disobedience can involve both violence and evasion of punishment, both (...) of which are necessary components of prison breaks. In section three I outline the broad circumstances in which escape attempts would be justified, which are when individuals have either been incarcerated on unjust grounds (such as coercive plea bargains, draconian laws, or institutionalized discrimination) or when individuals are subject to inhumane conditions within prison (such as physical or sexual abuse, inadequate medical care, and overcrowding). Although this framework is formulated with the U.S. criminal justice system in mind, it is potentially applicable to other instances of incarceration if they’re similarly unjust such as prisons in other countries, migrant detention centers, or psychiatric wards. I then outline four requirements which must be met for these prison breaks to qualify as civil disobedience. First, escape must be attempted as a last resort. Second, violence and other law-breaking must be reasonable, meaning it is done with precision, discretion, and proportion. Third, escapees hold the burden of proving they have been subject to injustice. Fourth and finally, the act of escape must contain other key components of civil disobedience such as persuasion, communication, and publicity, which will most likely be accomplished via coordination with non-incarcerated individuals. In section four I address the distinction between prison reform and abolition. (shrink)

This paper examines ethical considerations relating to the current role of financial incentives in policing and punishment in the USA, focusing on the two methods of punishment most popular in the USA: fines and forfeitures and incarceration. It examines how financial incentives motivate much of our penal system, including how and when laws are enforced; discusses relevant ethical considerations and concerns connected with our current practices; proposes a theoretical solution for addressing these problems that involves realigning existing incentives to better (...) serve the interests of justice; and considers how that theoretical solution can be applied in practice. While there are no easy solutions to resolving many of the current ethical problems related to policing and punishment, this paper will argue that some of our current practices, practices that many people believe are morally problematic, not only are not problematic, but also can point us toward more effective and efficient policy solutions in other areas. (shrink)

The author considers that the Penal Sciences face a wide range of human pathogenic issues, ranging from terrorism and human trafficking to corruption and the use of substances and are, thus, the ideal discipline for investigating the various scientific issues and the implementation of the scientific findings arising from such investigations. He also believes that the Penal Sciences, being inextricably linked to human values and constitutional rights, are, by their nature, beneficial towards the promotion and consolidation of values, such as (...) freedom, solidarity and, especially, Social Justice. The latter concept is perceived by the author not only as a form of justice, which provides everyone with their due of proportion to their value, according to the famous saying of Ulpian “suum cuique tribuere”, but rather as a form of restitution from social injustices and as a treatment for social needs, particularly for our fellow human beings who are marginalized by society in conditions of poverty and degradation. It is interesting, at this point, to emphasize that the United Nations, in an important report from 2006 entitled “Social Justice in an Open World. The Role of the United Nations”, defines Social Justice as the fair and compassionate distribution of the fruits of economic growth (“Social Justice in an Open World. The Role of the United Nations”, edited by the International Forum for Social Development, New York: United Nations, 2006, p. 7, available online). The vision, therefore, of a society focused on goals such as combating socio-economic disparities and providing effective assistance for the weaker members of society signifies, especially in this period of Crisis, is a primary objective worthy, according to the author, of captivating us. Perhaps, indeed, the new target for Criminal Policy, following that of Restorative Justice, should now be that of Social Justice and, in fact, with a double project and aim: first for a fairer distribution of social goods and, also, for greater solidarity towards the weaker members of society. Indeed, it is a known fact to those involved with the Penal Sciences, that a dominant contemporaneous trend is that of Restorative Justice, in the sense that Criminal Law and Criminology finally have to address the needs of the victim of a criminal act and to advocate for relevant methods for extrajudicial settlements and for the conciliation of the offender and the victim. Restorative Justice is, hence, based on the triptych of the perpetrator assuming responsibilities for their actions, of restoring, as far as possible, the effects of the injurious actions against the victim and, also, of actively expressing the desire for conciliation with the victim. Certainly it would be greatly desirable if these ideas were to be consolidated within Greek legislation, albeit within the, always progressive, Greek Law for Minors there is a provision for the reformatory conciliation measure, pursuant to article 122 case e of the Greek Penal Code. However, the author believes that in this period of time, a time of profound crisis at all levels, there is need for more than simple offender-victim conciliation. There is a need for this spirit of reconciliation and solidarity to be extended to benefit all those who are experiencing hard times and may, therefore, in their deprivation and frustration, are led to committing crime. The author, at this point, refers to all the socially weak and often marginalized groups of people, who are scientifically characterized as "weak" or "vulnerable" and who try, with great courage, to survive without breaching the threshold of breaking the law. -/- It is apparent here, according to the author, that if Criminal Policy actually aims to provide solutions to the problems of crime, it should not solely be limited to repairing the damage and conciliating the victim and perpetrator, but it should strike against the causative factors of crime and the primarily socio-economic inequalities and other forms of injustice which cause, according to Aristotle in his "Politics" (V. 1301b27, 1301a32 et seq., 1266b40), social reactions, attitudes and – Ι would add - a sequence of serious criminal acts. In other words, another kind of Justice is required in addition to Restorative, so that it may become the mission of our Criminal Policy to eliminate the injustices and inequalities that lead to crime. In view of this direction certain introductory thoughts are developed in this article. (shrink)

Primary textual evidence confirms that Schopenhauer was aware of the widespread adoption of solitary confinement in the American penitentiary system, and some of its harmful effects. He understands its harmfulness in terms of boredom, a phenomenon which he is known to have given extensive thought and analysis. In this paper I interpret Schopenhauer’s account of boredom and its relation to solitary confinement. I defend Schopenhauer against the objection that cases of confinement only serve to illustrate the general inadequacy of his (...) explanation of boredom in terms of a lack of things to will. This defence arrives at the conclusion that, on the contrary, someone might well suffer from a lack of things to will as a direct result of being confined; and that boredom understood as the deprivation of willing, a phenomenon I suggest may be called conative deprivation, makes an illuminating contribution to our theoretical understanding of the harmfulness of solitary confinement. (shrink)

Indeterminate sentencing is a sentencing practice where offenders are sentenced to a range of potential imprisonment terms and where the actual release date is determined later, typically by a parole board. Although indeterminate sentencing is often considered morally problematic from a retributivist perspective, Michael O’Hear has provided an interesting attempt to reconcile indeterminate sentencing with the communicative version of retributivism developed by Antony Duff. O’Hear’s core argument is that delayed release, within the parameters of the indeterminate sentence, can be seen (...) as an appropriate retributivist response to the violations of prison rules. This article highlights several problems in O’Hear’s proposal and argues that the communicative theory is not easily reconciled with his proposed model for indeterminate sentencing. In conclusion, it is argued that proponents of the communicative version of retributivism should resist indeterminate prison sentences. (shrink)