The Case Against Punishment
Retribution, Crime Prevention, and the Law
Publication Year: 2005
What ends do we expect and hope to serve in punishing criminal wrongdoers? Does the punishment of offenders do more harm than good for American society? In The Case against Punishment, Deirdre Golash addresses these and other questions about the value of punishment in contemporary society.
Drawing on both empirical evidence and philosophical literature, this book argues that the harm done by punishing criminal offenders is ultimately morally unjustified. Asserting that punishment inflicts both intended and unintended harms on offenders, Golash suggests that crime can be reduced by addressing social problems correlated with high crime rates, such as income inequality and local social disorganization. Punishment may reduce crime, but in so doing, causes a comparable amount of harm to offenders. Instead, Golash suggests, we should address criminal acts through trial, conviction, and compensation to the victim, while also providing the criminal with the opportunity to reconcile with society through morally good action rather than punishment.
Published by: NYU Press
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I wish to thank all of the many people who have provided help and support during the writing of this book. I am particularly grateful to Jim Doyle, David Fagelson, Brian Forst, Rob Johnson, Barbara Koziak, Alan Levine, Jim Lynch, Stephen Mathis, Philip Montague, Stephen Nathanson, Liam O’Melinn, Patrick Stone, Laurence Thomas, Roslyn ...
1. An Institution in Search of a Moral Grounding
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Punishment, at its core, is the deliberate infliction of harm in response to wrongdoing. As an institution, it is so deeply rooted in history that it is difficult even to imagine a society without it. We have grown up with it, and it seems natural and inevitable to us. At the same time, there is no denying that it is a human creation; we must accept responsibility, collectively ...
2. Does Punishment Do More Good than Harm?
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For the utilitarian, a social practice is justified insofar as it tends to produce more good than harm. A practice that produces the same benefit with less harm is morally preferable, and one that produces more harm than good is unjustified. The harms done by punishment would be justified, on utilitarian reasoning, provided that those harms are necessary to ...
3. Preserving the Moral Order
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At the heart of retributivism is the contention that it is the wrongness of the criminal act that justifies the imposition of punishment on the offender. Yet punishment itself consists in the performance of a parallel act against the offender. Thus showing that the harmful acts that are crimes have a moral value precisely opposite to that of the harmful acts that are ...
4. Retribution and Social Choice
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In contrast to utilitarians, Kant holds that each individual must be respected as an end in himself; no person is to be used as a mere instrument for the furthering of another’s purposes, but instead must be treated in ways that respect his own choices.1 We must respect the choices of others, according to Kant, because, from a rational point of view, all persons ...
5. Punishment as Self-Defense
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We saw in chapter 2 that the core of the objections to utilitarian theories is that we have a moral duty to treat individuals with the respect due to persons, rather than to use them as mere instruments to our own ends. This is the same concern that prevents us from killing off the more needy members of society to benefit the rest. Harming some to benefit others is, ...
6. Punishment as Communication
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Moral reform theories seek to show that punishment is justified (in whole or in part) because it conveys a moral message—a message that may benefit the offender by improving his moral character. These theories take as central that the source of wrongful behavior is the failure of the offender to appreciate the wrongfulness of his conduct, that this failure is a defect ...
7. Is Punishment Justified?
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In the preceding chapters, I have considered the main lines along which current justifications of punishment have been proposed: that it does more good than harm, primarily through deterrence and incapacitation; that it is good to harm offenders, because doing so annuls the crime; vindicates the victim, assuages justified anger, preserves the moral order, or ...
8. What If Punishment Is Not Justified?
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We have seen that punishment as a social institution, and particularly as currently practiced in our society, is deeply problematic. The question naturally arises whether it is an institution that we can, in practical terms, do without. Is the price of a morally defensible approach to crime complete social disintegration? I think we need not become moral martyrs; ...
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About the Author
Page Count: 220
Publication Year: 2005