## 1. Legal Punishment and Its Justification



The central question asked by philosophers of punishment is: What can
justify punishment? More precisely, since they do not usually talk
much about punishment in such contexts as the family or the workplace
(but see Zaibert 2006; Bennett 2008: Part II), their question is this:
What can justify formal, legal punishment imposed by the state on
those convicted of committing criminal offences? We will also focus on
legal punishment here: not because the other species of punishment do
not raise important normative questions (they do), nor because such
questions can be answered in terms of an initial justification of
legal punishment as being the paradigm case (since it's not
clear that they can be), but because legal punishment, apart from
being more dramatically coercive and burdensome than other species of
punishment usually are, raises distinctive issues about the role of
the state and its relationship to its citizens, and about the role of
the criminal law. Future references to 'punishment' should
therefore be read, unless otherwise specified, as references to legal
or criminal punishment.



What then are we to justify in justifying punishment? The search for a
precise definition of punishment that exercised some philosophers (for
discussion and references, see Scheid 1980; Boonin 2008: 3-28;
Zimmerman 2011: ch. 1) is likely to prove futile; but we can say that
legal punishment involves the imposition of something that is intended
to be both burdensome and reprobative, on a supposed offender for a
supposed crime, by a person or body who claims the authority to do so.
Two points are worth particular notice here.



First, punishment involves material impositions or exactions that are
in themselves typically unwelcome: they deprive people of things that
they value (liberty, money, time); they require people to do things
that they would not normally want to do or do voluntarily (to spend
time on unpaid community labour, to report to a probation officer
regularly, to undertake demanding programmes of various kinds). What
distinguishes punishment from other kinds of coercive imposition, such
as taxation, is that punishment is precisely *intended* to
...: but to what? Some would say that punishment is intended to
inflict pain or suffering: but that suggests that what matters is pain
or suffering as such (and invites the familiar criticism that we and
the state should not be in the business of trying to inflict pain or
suffering on people; see Christie 1981 on
'pain-delivery'), which some penal theorists would reject
as a distortion. Others would say that punishment is intended to cause
harm to the offender -- adding, if they are careful (see Hanna
2014: s. 2) that what is intended is 'prima facie harm'
rather than 'all-things-considered harm', to allow for the
possibility that punishment might be, or might be intended to be, on
balance beneficial to the offender. But some theorists would deny even
this, since they would deny that punishment must be intended to be
'intrinsically bad' for the person punished. It is safer
to say that punishment must be intended to be burdensome, and that is
how punishment will be understood in what follows. (For running debate
about this intentionality feature, see Wringe 2013, Hanna 2017, Wringe
2019, Hanna 2020.)



Second, it is widely accepted that what distinguishes punishment from
mere 'penalties' (see Feinberg 1970) is their reprobative
or condemnatory character. Penalties, such as parking tickets, might
be imposed to deter the penalised conduct (or to recoup some of the
costs that it causes) without being intended to express societal
condemnation. But even if a primary purpose of punishment is
deterrence (see ss. 3-4 below), its imposition (the conviction
and formal sentence that the offender receives in court, the
administration of the punishment itself) also expresses the censure or
condemnation that the offender's crime is taken to warrant.



These two features, that punishment is intentionally burdensome and
condemnatory, make the practice especially normatively challenging.
How can a practice that not only burdens those subjected to it but
aims to burden them, and which conveys society's condemnation,
be justified?



We should not assume, however, that there is only one question of
justification, which can receive just one answer. As Hart famously
pointed out (Hart 1968: 1-27), we must distinguish at least
three justificatory issues. First, what compelling reason is there to
create and maintain a system of punishment: what good can it achieve,
what duty can it fulfil, what moral demand can it satisfy? (Hart
termed this the question of punishment's 'general
justifying aim', although the term may be misleading in that
talk of 'aims' may seem to privilege a consequentialist
answer to the question, whereas the compelling reason could be a
nonconsequentialist one.) Second, who may properly be punished: what
principles or aims should determine the allocations of punishments to
individuals? Third, how should the appropriate amount of punishment be
determined: how should sentencers go about deciding what sentence to
impose? (One dimension of this third question concerns the amount or
severity of punishment; another, which is insufficiently discussed by
philosophers, concerns the concrete modes of punishment that should be
available, in general or for particular crimes.) It might of course
turn out that answers to all these questions will flow from a single
theoretical foundation -- for instance, from a unitary
consequentialist principle specifying the good that punishment should
achieve, or from some version of the retributivist principle that the
sole proper aim of punishment is to impose on the guilty the punitive
burdens they deserve. But matters might not be as simple as that: we
might find that quite different and conflicting values are relevant to
different issues about punishment, and that any complete normative
account of punishment will have to find a place for these values and
offer guidance in how to resolve tensions among them when they
conflict (see s. 6).



Even this way of putting the matter oversimplifies it, by implying
that we can hope to find a 'complete normative account of
punishment': an account, that is, of how punishment can be
justified. It is certainly an implicit assumption of much
philosophical and legal discussion that punishment can, of course, be
justified, and that the theorists' task is to establish and
explicate that justification. But it is an illegitimate assumption:
normative theorists must be open to the possibility, startling and
disturbing as it might be, that this pervasive human practice cannot
be justified. Nor is this merely the kind of fantastical scepticism
that moral philosophers are sometimes prone to imagine ('suppose
someone denied that killing for pleasure was wrong'): there is a
significant strand of 'abolitionist' penal theorising (the
subject of increasing philosophical attention in recent years) that
argues precisely that legal punishment cannot be justified and should
be abolished.



We will attend to some abolitionist arguments in section 7. Even if
those arguments can be met, even if legal punishment can be justified,
at least in principle, the abolitionist challenge is one that must be
met, rather than ignored; and it will help to remind us of the ways in
which any practice of legal punishment is bound to be morally
problematic.


## 2. 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. A
normative account of legal punishment and its justification must thus
at least presuppose, and should perhaps make explicit, a normative
account of the criminal law (why should we have a criminal law at
all?) and of the proper powers and functions of the state (by what
authority or right does the state make and declare law, and impose
punishments on those who break it?). (See generally Duff 2018: ch.
1.)



Recent scholarship has thus seen a growing interest in grounding
analysis of the justification of punishment in a political theory of
the state. Many of these accounts are based on Rawls's political
theory or on other versions of constructivism (see Matravers 2000 and
2011b; Dolovich 2004; Brettschneider 2007; Flanders 2017; for
critiques of such accounts, see Garvey 2004, Dagger 2011b). Several
others are based on versions of republicanism (see Pettit 1997; Duff
2001; Dagger 2007 and 2011a; Yankah 2015; for other recent
contributions showing the importance of political theory, see Brudner
2009; Brooks 2011; Sigler 2011; Markel 2012; Chiao 2016 and 2018). How
far it matters, in this context, to make explicit a political theory
of the state depends on how far different plausible political theories
will generate different accounts of how punishment can be justified
and should be used. We cannot pursue this question here (for two
sharply contrasting views on it, see Philips 1986; M. Davis 1989),
save to note one central point. For any political theory that takes
seriously the idea of citizenship as full membership of the polity,
the problem of punishment takes a particularly acute form, since we
have now to ask how punishment can be consistent with citizenship (how
citizens can legitimately punish each other): if we are not to say
that those who commit crimes thereby forfeit their status as citizens
(see s. 6 below), we must -- if we are to justify punishment at
all -- show how the imposition of punishment can be consistent
with, or even expressive of, the respect that citizens owe to each
other. (Punishment is also, of course, imposed on non-citizens who
commit crimes within a state's territory: on the primacy of
citizenship in understanding criminal law and its authority, and on
the status of non-citizens, see Duff 2013 and 2018: ch. 3; Wringe
2021.)



Before we tackle such theories of punishment, however, we should look
briefly at the concept of crime, since that is one focus of the
abolitionist critique of punishment.



On a simple positivist view of law, crimes are kinds of conduct that
are prohibited, on pain of threatened sanctions, by the law; and for
positivists such as Bentham, who combine positivism with a normative
consequentialism, the questions of whether we should maintain a
criminal law at all, and of what kinds of conduct should be
criminalised, are to be answered by trying to determine whether and
when this method of controlling human conduct is likely to produce a
net increase in good. Such a perspective seems inadequate, however:
inadequate both to the claims of the criminal law, which presents its
demands as something other or more than those of a gunman writ large
-- as something other or more than 'Behave thus, or
else!' -- and to the normative issues at stake when we ask
what kinds of conduct should be criminalised. For the criminal law
portrays crime not merely as conduct which has been prohibited, but as
a species of wrongdoing: whether our inquiry is analytical (into the
concept of crime) or normative (as to what kinds of conduct, if any,
should be criminal), we must therefore focus on that notion of
wrongdoing.



Crimes are, at least, socially proscribed wrongs -- kinds of
conduct that are condemned as wrong by some purportedly authoritative
social norm. That is to say that they are wrongs which are not merely
'private' affairs, which properly concern only those
directly involved in them: the community as a whole -- in this
case, the political community speaking through the law -- claims
the right to declare them to be wrongs. But crimes are
'public' wrongs in a sense that goes beyond this. Tort
law, for instance, deals in part with wrongs that are non-private in
that they are legally and socially declared as wrongs -- with the
wrong constituted by libel, for instance. But they are still treated
as 'private' wrongs in the sense that it is up to the
person who was wronged to seek legal redress. She must decide to
bring, or not to bring, a civil case against the person who wronged
her; and although she can appeal to the law to protect her rights, the
case is still between her and the defendant. By contrast, a criminal
case is between the whole political community -- the state or the
people -- and the defendant: the wrong is 'public' in
the sense that it is one for which the wrongdoer must answer not just
to the individual victim, but to the whole polity through its criminal
courts.



It is notoriously difficult to give a clear and plausible account of
the distinction between civil and criminal law, between
'private' and 'public' legal wrongs, whether
our interest is in the analytical question of what the distinction
amounts to, or in the normative question of which kinds of wrong
should fall into which category (see Murphy and Coleman 1984: ch. 3; a
symposium in *Boston University Law Review* vol. 76 (1996):
1-373; Lamond 2007). It might be tempting to say that crimes are
'public' wrongs in the sense that they injure the whole
community: they threaten social order, for instance, or cause
'social volatility' (Becker 1974); or they involve taking
unfair advantage over those who obey the law (H. Morris 1968:
477-80; Murphy 1973; Dagger 1993 and 2008); or they undermine
the trust on which social life depends (Dimock 1997). But such
accounts distract our attention from the wrongs done to the individual
victims that most crimes have, when it is those wrongs that should be
our central concern: we should condemn the rapist or murderer, we
should see the wrong he has done as our concern, because of what he
has done to his victim. Another suggestion is that
'public' wrongs are those that flout the community's
essential or most basic values, in which all members of the community
should see themselves as sharing: the wrong is done to
'us', not merely to its individual victim, in the sense
that we identify ourselves with the victim as a fellow citizen (see
Marshall and Duff 1998; Duff 2007: ch. 6; and see further section 6 of
the entry on
 theories of criminal law).



Some abolitionists, however, argue that we should seek to eliminate
the concept of crime from our social vocabulary: we should talk and
think not of 'crimes', but of 'conflicts' or
'troubles' (Christie 1977; Hulsman 1986). One motivation
for this might be the thought that 'crime' entails
punishment as the appropriate response: but that is not so, since we
could imagine a system of criminal law without punishment. To define
something as a 'crime' does indeed imply that some kind of
public response is appropriate, since it is to define it as a kind of
wrong that properly concerns the whole community; and it implies that
that response should be a condemnatory one, since to identify wrongs
as wrongs is to mark them out as apt for condemnation: but that
public, condemnatory response could consist in nothing more than, for
instance, some version of a criminal trial which calls the alleged
wrongdoer to answer for her alleged wrongdoing, and condemns her for
it, through a criminal conviction, if she is proved guilty. One can of
course count a criminal conviction as a kind of punishment: but it
does not entail the kind of materially burdensome punishment, imposed
after conviction, with which penal theorists are primarily
concerned.



Another possible motivation for the abolitionist objection to the
concept of crime is a kind of moral relativism that objects to the
'imposition' of values on those who might not share them
(Bianchi 1994: 71-97): but since abolitionists are very ready to
tell us, insistently, how we ought to respond to conflicts or
troubles, and how a state ought or ought not to treat its citizens,
such an appeal to relativism reflects serious confusion (see Williams
1976: 34-39). More plausibly, the abolitionist claim could be
that rather than take wrongdoing as our focus, we should focus on the
harm that has been done, and on how it can be repaired; we will return
to this suggestion in section 7 below.



Another abolitionist concern is that by defining and treating conduct
as 'criminal', the law 'steals' the conflicts
which crime involves from those to whom they properly belong (Christie
1977): instead of allowing, and helping, those who find themselves in
conflict to resolve their trouble, the law takes the matter over and
translates it into the professionalised context of the criminal
justice system, in which neither 'victim' nor
'offender' is allowed any appropriate or productive role.
Now it is a familiar and disturbing truth that our existing criminal
processes -- both in their structure and in their actual
operations -- tend to preclude any effective participation by
either victims or offenders, although an adequate response to the
criminal wrong that was done should surely involve them both. One
response is to argue, as some abolitionists do, that our response to
crime should consist not in punishment, but in a process of mediation
or 'restoration' between victim and offender (see s. 7
below); but another is to insist that we should retain a distinctive
criminal process of trials, and punishment, in which the polity as a
whole, acting on behalf of the victim as well as on its own behalf,
calls the criminal wrongdoer to account -- but that victims and
offenders should be given a more active role in that process (see
further Duff et al 2007, esp. chs. 3-5, 7). Such an insistence
on the need for a public criminal process reflects two aspects of the
concept of crime: first, it is sometimes important to recognise that a
situation involves not just people in 'conflict', but a
victim who has been wronged and an offender who has done the wrong;
second, some such wrongs are 'public' wrongs in the sense
sketched above -- wrongs that properly concern not just those
directly affected, but all members of the political community. Faced,
for instance, by feuding neighbours who persistently accuse each other
of more or less trivial wrongs, it might indeed be appropriate to
suggest that they should forget about condemning each other and look
for a way of resolving their conflict. But faced by a rapist and the
person he raped, or by a violent husband and the wife he has been
beating up, it would a betrayal both of the victim and of the values
to which we are supposedly committed to portray the situation merely
as a 'conflict' which the parties should seek to resolve:
whatever else or more we can do, we must recognise and declare that
here is a victim who has been seriously wronged; and we must be
collectively ready to censure the offender's action as a wrong
(for a useful discussion of the significance of criminal law in the
context of domestic violence, see Dempsey 2009).



However, to argue that we should retain the concept of crime, that we
should maintain a criminal law which defines and condemns a category
of 'public' wrongs, is not yet to say that we should
maintain a penal system that punishes those who commit such wrongs;
while a system of criminal law might require something like a system
of criminal trials that will authoritatively identify and condemn
criminal wrongdoers, it does not of its nature require the imposition
of further sanctions on such wrongdoers. So, we must turn now to the
question of what could justify such a system of punishment.


## 3. 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. For we have here a practice that
inflicts, indeed seeks to inflict, significant hardship or burdens:
how else could we hope to justify it than by showing that it brings
consequential benefits sufficiently large to outweigh, and thus to
justify, those burdens? We need not be Benthamite utilitarians to be
moved by Bentham's famous remark that "all punishment in
itself is evil. ... [I]f it ought at all to be admitted, it ought only
to be admitted in as far as it promises to exclude some greater
evil" (Bentham 1789: ch. XIII.2). However, when we try to flesh
out this simple consequentialist thought into something closer to a
full normative account of punishment, problems begin to appear.



A consequentialist must justify punishment (if she is to justify it at
all) as a cost-effective means to certain independently identifiable
goods (for two simple examples of such theories, see Wilson 1983;
Walker 1991). Whatever account she gives of the final good or goods at
which all action ultimately aims, the most plausible immediate good
that a system of punishment can bring is the reduction of crime. A
rational consequentialist system of law will define as criminal only
conduct that is in some way harmful; in reducing crime we will thus be
reducing the harms that crime causes. It is commonly suggested that
punishment can help to reduce crime by deterring, incapacitating, or
reforming potential offenders (though for an argument that
incapacitation is not a genuinely punitive aim, see Hoskins 2016:
260). (There are of course other goods that a system of punishment can
bring. It can reassure those who fear crime that the state is taking
steps to protect them--though this is a good that, in a
well-informed society, will be achieved only insofar as the more
immediate preventive goods are achieved. It can also bring
satisfaction to those who want to see wrongdoers suffer -- though
to show that to be a genuine good, rather than merely a means of
averting vigilantism and private revenge, we would need to show that
it involves something more than mere vengeance, which would be to make
sense of some version of retributivism.)



In consequentialist terms, punishment will be justified if it is an
effective means of achieiving its aim, if its benefits outweigh its
costs, and if there is no less burdensome means of achieving the same
aim. It is a contingent question whether punishment can satisfy these
conditions, and some objections to punishment rest on the empirical
claim that it cannot -- that there are more effective and less
burdensome methods of crime reduction (see Wootton 1963; Menninger
1968; Golash 2005: chs. 2 and 8; Boonin 2008: 53, 264-67). Our focus
here, however, will be on the moral objections to consequentialist
accounts of punishment -- objections, basically, that
crime-reductive efficiency does not suffice to justify a system of
punishment.



The most familiar line of objection to consequentialist penal theories
contends that consequentialists would be committed to regarding
manifestly unjust punishments (the punishment of those known to be
innocent, for instance, or excessively harsh punishment of the guilty)
to be in principle justified if they would efficiently serve the aim
of crime reduction: but such punishments would be wrong, because they
would be unjust (see e.g., McCloskey 1957: 468-69; Hart 1968, chs.
1-2; Ten 1987; Primoratz 1999, chs. 2-3; Boonin 2008: ch.
2).



There are some equally familiar consequentialist responses to this
objection. One is to argue that such 'unjust'punishments
*would* be justified if they would really produce the best
consequences (see e.g., Smart 1973: 69-72; Bagaric and
Amarasekara 2000) -- to which the critic will reply that we
cannot thus put aside the moral significance of injustice. Another is
to argue that in the real world it is extremely unlikely that such
punishments would ever be for the best, and even less likely that the
agents involved could be trusted reliably to pick out those rare cases
in which they would be: thus we, and especially our penal officials,
will do best if we think and act as if such punishments are
intrinsically wrong and unjustifiable (see e.g., Rawls 1955; Hare
1981, chs. 3, 9.7) -- to which the critic will respond that this
still makes the wrongness of punishing a known innocent contingent on
its effects, and fails to recognise the intrinsic wrong that such
punishment does (see e.g., Duff 1986: 151-64; Primoratz 1999,
chs. 3.3, 6.5). Another response is to argue that a richer or subtler
account of the ends that the criminal law should serve will generate
suitable protection against unjust punishments (see Braithwaite and
Pettit 1990, especially 71-76, on 'dominion' as the
end of criminal law); but the objection remains that any purely
consequentialist account will make the protection of the innocent
against injustice contingent on its instrumental contribution to the
system's aims (on Braithwaite and Pettit, see von Hirsch and
Ashworth 1992; Duff 1996: 20-25; Pettit 1997).



Another objection to consequentialist accounts focuses not on
potential wrongs done to the innocent but rather on the wrong
allegedly done to the guilty. Consequentialist punishment, on this
objection, fails to respect the person punished as an autonomous moral
agent. In Kantian terms, such punishment treats those punished as mere
means to achieving some social good, rather than respecting them as
ends in themselves (Kant 1797: 473; Murphy 1973). The Kantian
prohibition on treating each other 'merely as means' is
admittedly unclear in its implications (for a useful discussion of how
we should understand 'the means principle', see Tadros
2011: ch. 6). One might argue that if punishment is reserved for those
who voluntarily break the law, it does not treat them *merely*
as means. Indeed, Kant himself suggested that as long as we reserve
punishment only for those found guilty of crimes, then it is
permissible to punish with an eye toward potential benefits (Kant
1797: 473). As we have seen, though, insofar as such an approach
relies on endorsing prohibitions on punishment of the innocent or
disproportionate punishment of the guilty, the challenge remains that
such constraints appear to be merely contingent if grounded in
consequentialist considerations. Conversely, if the constraints are
more than merely contingent, it appears that they will be based on
some deontological considerations, in which case the overall theory
will no longer be purely consequentialist, but rather a mixed theory
(see s. 6).



A more recent objection (Duff 2011: 75-79) charges that
consequentialist systems of punishment are inappropriately
exclusionary insofar as they treat offenders as dangerous
'outsiders' who must be threatened, incapacitated, or
reformed to ensure the safety of the law-abiding members of society.
The criminal law, and the institution of punishment, in a liberal
society should treat offenders as (still) members of the polity who
despite having violated its values could, and should, nonetheless
(re)commit to these values. A possible response is that a penal system
aimed at crime reduction through deterrence need not be exclusionary,
as it treats all community members equally, namely as potential
offenders (Hoskins 2011a: 379-81). Also, insofar as such a
system 'promotes social cooperation under stable public
institutions', it thus helps to protect the freedom of everyone
(Chiao 2018: 36).


## 4. 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 2011 for an argument that some recent
versions of retributivism actually turn it into a consequentialist
theory).



Theorists have distinguished 'positive' and
'negative' forms of retributivism. Positive retributivism
holds that an offender's desert provides a reason in favour of
punishment; essentially, the state should punish those found guilty of
criminal offences to the extent that they deserve, because they
deserve it. Penal desert constitutes not just a necessary, but an
in-principle sufficient reason for punishment (only in principle,
however, since there are good reasons -- to do with the costs,
both material and moral, of punishment -- why we should not even
try to punish all the guilty). Negative retributivism, by contrast,
provides not a positive reason to punish, but rather a constraint on
punishment: punishment should be imposed only on those who deserve it,
and only in proportion with their desert. Because negative
retributivism represents only a constraining principle, not a positive
reason to punish, it has been employed in various mixed accounts of
punishment, which endorse punishment for consequentialist reasons but
only insofar as the punishment is no more than is deserved (see s. 6
below).



A striking feature of penal theorising during the last three decades
of the twentieth century was a revival of positive retributivism
-- of the idea that the positive justification of punishment is
to be found in its intrinsic character as a deserved response to crime
(see H. Morris 1968; N. Morris 1974; Murphy 1973; von Hirsch 1976; two
useful collections of contemporary papers on retributivism are White
2011 and Tonry 2012).



Positive retributivism comes in very different forms (Cottingham
1979). All can be understood, however, as attempting to answer the two
central questions faced by any retributivist theory of punishment.
First, what is the justificatory relationship between crime and
punishment that the idea of desert is supposed to capture: why do the
guilty 'deserve to suffer' (see L. Davis 1972) -- and
what do they deserve to suffer (see Ardal 1984; Honderich 2005, ch.
2)? Second, even if they deserve to suffer, or to be burdened in some
distinctive way, why should it be for the state to inflict that
suffering or that burden on them through a system of criminal
punishment (Murphy 1985; Husak 1992 and 2015; Shafer-Landau 1996;
Wellman 2009)?



One retributivist answer to these questions is that crime involves
taking an unfair advantage over the law-abiding, and that punishment
removes that unfair advantage. The criminal law benefits all citizens
by protecting them from certain kinds of harm: but this benefit
depends upon citizens accepting the burden of self-restraint involved
in obeying the law. The criminal takes the benefit of the
self-restraint of others but refuses to accept that burden herself:
she has gained an unfair advantage, which punishment removes by
imposing some additional burden on her (see H. Morris 1968; Murphy
1973; Sadurski 1985; Sher 1987, ch. 5; Adler 1992, chs. 5-8;
Dagger 1993, 2008, 2011; Stichter 2010; Duus-Otterstrom 2017; for
criticism, see Burgh 1982; Duff 1986, ch. 8; Falls 1987; Dolinko 1991;
Anderson 1997; Boonin 2008: 119-143; Hoskins 2011b).



This kind of account does indeed answer the two questions noted above.
What the criminal deserves to suffer is the loss of her unfair
advantage, and she deserves that because it is unfair that she should
get away with taking the benefits of the law without accepting the
burdens on which those benefits depend; it is the state's job to
inflict this suffering on her, because it is the author or guarantor
of the criminal law. However, such accounts have internal
difficulties: for instance, how are we to determine how great was the
unfair advantage gained by a crime; how far are such measurements of
unfair advantage likely to correlate with our judgements of the
seriousness of crimes? (For a detailed defence of the 'unfair
advantage' theory as a theory of sentencing, see M. Davis 1992,
1996; for criticism, see Scheid 1990, 1995; von Hirsch 1990.)
Furthermore, they seem to misrepresent what it is about crime that
makes it deserving of punishment: what makes murder, or rape, or
theft, or assault a criminal wrong, deserving of punishment, is surely
the wrongful harm that it does to the individual victim -- not
(as on this kind of account) the supposed unfair advantage that the
criminal takes over all those who obey the law (for recent attempts to
defend fair play retributivism against these objections, see Stichter
2010 and Duus-Otterstrom 2017).



A different retributivist account appeals not to the abstract notion
of unfair advantage, but to our (normal, appropriate) emotional
responses to crime: for instance, to the resentment or
'retributive hatred', involving a desire to make the
wrongdoer suffer, that crime may arouse (see Murphy and Hampton 1988,
chs. 1, 3); or to the guilt, involving the judgement that I ought to
be punished, that my own wrongdoing would arouse in me (see Moore
1997, ch. 4). Such accounts try to answer the first of the two
questions noted above: crime deserves punishment in the sense that it
makes appropriate certain emotions (resentment, guilt) which are
satisfied by or expressed in punishment. They do not yet show,
however, why it should be the state's task to satisfy or provide
formal expression for such emotions (but see Stephen 1873: 152); and
their answers to the first question are also problematic. Criminal
wrongdoing should, we can agree, provoke certain kinds of emotion,
such as self-directed guilt and other-directed indignation; and such
emotions might typically involve a desire to make those at whom they
are directed suffer. But just as we can agree that anger is an
appropriate response to wrongs done to me, while also arguing that we
should resist the desire to hit back that anger often, even typically,
involves (see Horder 1992:194-7), so we could argue that
although guilt, resentment and indignation are appropriate responses
to our own and others' wrongdoing, we should resist the desire
for suffering that they so often involve. At the least we need to know
more than we are told by these accounts about just what wrongdoers
deserve to suffer, and why the infliction of suffering should be an
appropriate way to express such proper emotions. (For critical
discussions of Murphy, see Murphy and Hampton 1988, ch. 2; Duff 1996:
29-31; Murphy 1999. On Moore, see Dolinko 1991: 555-9;
Knowles 1993; Murphy 1999. See also Murphy 2003, 2012.)



More recently, critics of emotion-based retributivist accounts have
contended that the emotions on which retributive (and other
deontological) intuitions are based have evolved as mechanisms to
stabilise cooperation; given that we have retributive emotions only
because of their evolutionary fitness, it would be merely a
coincidence if intuitions based on these emotions happened to track
moral truths about, e.g., desert (see especially Greene 2008; also
Singer 2005). A problem with such accounts is that they appear to
prove too much: consequentialist accounts also rely on certain
evaluation intuitions (about what has value, or about the proper way
to respond to that which we value); insofar as such intuitions are
naturally selected, then it would be no less coincidental if they
tracked moral truths than if retributive intuitions did so. Thus the
consequentialist accounts that derive from these intuitions would be
similarly undermined by this evolutionary argument (see Kahane 2011;
Mason 2011; but see Wiegman 2017).



A third version of retributivism holds that when people commit a
crime, they thereby incur a moral debt to their victims, and
punishment is deserved as a way to pay this debt (McDermott 2001).
This moral debt differs from the material debt that an offender may
incur, and thus payment of the material debt (returning stolen money
or property, etc.) does not settle the moral debt: punishment is
needed to pay the moral debt, by denying the ill-gotten moral good to
the perpetrator. Among the challenges for this account are to explain
the nature of the moral good, how the offender takes this moral good
from the victim, how punishment denies this good to the offender, and
how doing so thereby pays the offender's debt to the victim.


## 5. 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. (On the expressive dimension of punishment, see generally
Feinberg 1970; Primoratz 1989; for critical discussion, see Hart 1963:
60-69; Skillen 1980; M. Davis 1996: 169-81; A. Lee 2019.)
Consequentialists can of course portray punishment as useful partly in
virtue of its expressive character (see Ewing 1927; Lacey 1988;
Braithwaite and Pettit 1990); but a portrayal of punishment as a mode
of deserved moral communication has been central to many recent
versions of retributivism.



The central meaning and purpose of punishment, on such accounts, is to
convey the censure or condemnation that offenders deserve for their
crimes. On some versions of this type of theory, punishment serves to
express to the community generally (including the offender and victim)
the society's denunciation of or dissociation from the crime
(see Bennett 2008; Wringe 2016). On other such accounts, the primary
intended audience of the condemnatory message is the offender himself,
although the broader society may be a secondary audience (see Duff
2001: secs. 1.4.4, 3.2; Markel 2011).



Once we recognise that punishment can serve this communicative
purpose, we can see how such accounts begin to answer the two
questions that retributivists face. First, there is an obviously
intelligible justificatory relationship between wrongdoing and
condemnation: whatever puzzles there might be about other attempts to
explain the idea of penal desert, the idea that it is appropriate to
condemn wrongdoing is surely unpuzzling. Second, it is appropriate for
the state to ensure that such censure is formally administered through
the criminal justice system: if crimes are public wrongs, breaches of
the political community's authoritative code, then they merit
public censure by the community. (For other examples of communicative
accounts, see especially von Hirsch 1993: ch.2; Markel 2012. For
critical discussion, see M. Davis 1991; Boonin 2008: 171-80;
Hanna 2008; Matravers 2011a.)



Two crucial lines of objection face any such justification of
punishment as a communicative enterprise. The first line of critique
holds that, whether the primary intended audience is the offender or
the community generally, condemnation of a crime can be communicated
through a formal conviction in a criminal court; or it could be
communicated by some further formal denunciation issued by a judge or
some other representative of the legal community, or by a system of
purely symbolic punishments which were burdensome only in virtue of
their censorial meaning. It can, of course, also be communicated by
'hard treatment' punishments of the kinds imposed by our
courts -- by imprisonment, by compulsory community service, by
fines and the like, which are burdensome independently of their
censorial meaning (on 'hard treatment', see Feinberg
1970): but why should we choose such methods of communication, rather
than methods that do not involve hard treatment (see Christie 1981:
98-105; Boonin 2008: 176-79; Hanna 2008; Konigs 2013;
Tadros 2011: 103)? Is it because they will make the communication more
effective (see Falls 1987; Primoratz 1989; Kleinig 1991)? But one
might think that an account that relies on punishment's
contingent effectiveness in communicating the desired message begins
to look more like the sort of consequentialist account of which
retributivists are critical (but see Glasgow 2015: 611-20). And
anyway, one might worry that the hard treatment will conceal, rather
than highlight, the moral censure it should communicate (see Mathiesen
1990: 58-73).



One sort of answer to this first line of critique explains penal hard
treatment as an essential aspect of the enterprise of moral
communication itself. Punishment, on this view, should aim not merely
to communicate censure to the offender, but to persuade the offender
to recognise and repent the wrong he has done, and so to recognise the
need to reform himself and his future conduct, and to make apologetic
reparation to those whom he wronged. His punishment then constitutes a
kind of secular penance that he is required to undergo for his crime:
its hard treatment aspects, the burden it imposes on him, should serve
both to assist the process of repentance and reform, by focusing his
attention on his crime and its implications, and as a way of making
the apologetic reparation that he owes (see Duff 2001, 2011b; see also
Garvey 1999, 2003; Tudor 2001; Brownless 2007; Hus 2015; for a
sophisticated discussion see Tasioulas 2006). This type of account
faces serious objections (see Bickenbach 1988; Ten 1990; von Hirsch
1999; Bagaric and Amarasekara 2000; Ciocchetti 2004; von Hirsch and
Ashworth 2005: ch. 7; Bennett 2006, 2015): in particular that it
cannot show penal hard treatment to be a necessary aspect of a
communicative enterprise which is still to respect offenders as
responsible and rational agents who must be left free to remain
unpersuaded; that apologetic reparation must be voluntary if it is to
be of any real value; and that a liberal state should not take this
kind of intrusive interest in its citizens' moral
characters.



The second line of objection to communicative versions of
retributivism -- and indeed against retributivism generally
-- charges that the notions of desert and blame at the heart of
retributivist accounts are misplaced and pernicious. One version of
this objection is grounded in scepticism about free will. Free will
scepticism holds that people's behaviour is the product of
determinism, luck, or chance, and thus that we are not morally
responsible for our behaviour in the respects that would justify the
ideas that those who commit crimes are *blameworthy* and
*deserve* punishment (see Pereboom 2013; Caruso 2018). In
response, retributivists may point out that only if punishment is
grounded in desert can we provide more than contingent assurances
against punishment of the innocent or disproportionate punishment of
the guilty, or assurances against treating those punished as mere
means to whatever desirable social ends (see s. 3 above; but see
Vilhauer 2013).



Another version of the objection is not grounded in free will
scepticism: it allows that people may sometimes merit a judgement of
blameworthiness. But it contends that the 'affective'
aspect of blame -- its realisation in negative reactive attitudes
such as anger, hatred, and contempt -- has pernicious effects
when manifested in the criminal law: such emotion-laden blame fosters
all-encompassing condemnations of offenders, rather than condemnation
merely of their crimes; and it has contributed to overcriminalisation,
overly harsh sentencing, and mass incarceration. On this line of
objection, the state's response to crimes should focus not on
retribution but on rehabilitation, treating offenders as morally
responsible agents but not blaming them (see Lacey and Pickard 2013,
2015, 2018, 2021; for similar accounts, see Kelly 2018; Nussbaum 2016:
ch. 6).



To this second version of the objection to retributivist blame,
retributivists may respond that although emotions associated with
retributive blame have no doubt contributed to various excesses in
penal policy, this is not to say that the notion of deserved censure
can have no appropriate place in a suitably reformed penal system.
After all, when properly focused and proportionate, reactive attitudes
such as anger may play an important role by focusing our attention on
wrongdoing and motivating us to stand up to it; anger-tinged blame may
also serve to convey how seriously we take the wrongdoing, and thus to
demonstrate respect for its victims as well as its perpetrators (see
Cogley 2014; Hoskins 2020). What's more, on the sort of
communicative retributivist account sketched above, treating offenders
as responsible agents involves pointing out when they have done wrong
and expecting them to take responsibility for their wrongful actions.
If taking responsibility for one's wrongdoing requires that one
acknowledge it as wrongdoing, commit to reforming one's
behaviour, and begin to reconcile with one's community by making
reparation for the wrongdoing, then one might argue that emotions
associated with self-blame (guilt, remorse) and others' blame
(anger, resentment) play a central role in such a process.


## 6. Mixed Accounts



Given the challenges faced by pure consequentialist and pure
retributivist accounts, some theorists have sought to make progress on
the question of punishment's justification by incorporating
consequentialist and nonconsequentialist elements into their
accounts.



Perhaps the most influential example of a mixed account begins by
recognizing that the question of punishment's justification is
in fact several different questions, which may be answered by appeal
to different considerations. In particular, Hart (1968: 9-10)
pointed out that we may ask about punishment, as about any social
institution, what compelling rationale there is to maintain the
institution (that is, what values or aims it fosters) and also what
considerations should govern the institution. The compelling rationale
will itself entail certain constraints: e.g., the rationale of
deterrence would rule out punishments that had no deterrent effect or,
worse, tended to exacerbate crime levels. What distinguishes hybrid
theories such as Hart's, however, is the claim that there may be
constraining considerations that do not flow from punishment's
rationale. On Hart's account, the compelling rationale for
punishment (what he termed its 'general justifying aim')
lies in its beneficial effects, but our pursuit of that aim must be
constrained by nonconsequentialist principles that preclude the kinds
of injustice alleged to flow from a purely consequentialist account:
principles that forbid, for instance, the deliberate punishment of the
innocent, or the excessively harsh punishment of the guilty. (See most
famously Hart 1968, and Scheid 1997 for a sophisticated Hartian
theory; on Hart, see Lacey 1988: 46-56; Morison 1988; Primoratz
1999: ch. 6.6.)



Although analysis of 'the hybrid theory' of punishment has
tended to focus on Hart's version of it, one might endorse
hybrid views that vary significantly from Hart's. For example,
whereas Hart endorsed a consequentialist rationale for punishment and
nonconsequentialist side-constraints, one might instead endorse a
retributivist rationale constrained by consequentialist considerations
(punishment should not tend to exacerbate crime, or undermine offender
reform, etc.), or constrained by nonconsequentialist (but not
retributivist) considerations such as human rights or respect for
persons. Alternatively, one might endorse an account on which both
consequentialist and retributivist considerations features as
rationales but for different branches of the law: on such an account,
the legislature determines crimes and establishes sentencing ranges
with the aim of crime reduction, but the judiciary makes sentencing
decisions based on retributivist considerations of desert (M. C.
Altman 2021; Rawls's account (1955) has also been characterised
as a hybrid view of this sort, but in fact it is a version of rule
utilitarianism; on the variety of hybrid views, see Hoskins 2021).



Critics have charged that hybrid accounts are ad hoc or internally
inconsistent (see Kaufman 2008: 45-49). In addition, retributivists
argue that hybrid views that integrate consequentialist rationales
with retributivist side-constraints thereby relegate retributivism to
a merely subsidiary role, when in fact giving offenders their just
deserts is a (or the) central rationale for punishment (see Wood 2002:
303).



Also, because hybrid accounts incorporate consequentialist and
retributivist elements, they may be subject to some of the same
objections raised against pure versions of consequentialism or
retributivism. For example, insofar as they endorse retributivist
constraints on punishment, they face the thorny problem of explaining
the retributivist notion of desert (see s. 4 above): but it is not
clear whether they can be justified without such an appeal to
retributivist desert (see Hart 1968: 44-48; Feinberg 1988:
144-55; Walker 1991, ch. 11). Even if such side-constraints can
be securely grounded, however, consequentialist theories of punishment
face the broadly Kantian line of objection discussed earlier (s. 3),
that punishing with the aim of serving some desirable social ends
treats those punished merely as means to those further ends, which
denies them the respect, the moral standing, that is their due as
responsible agents.



Some have contended that punishment with a consequentialist rationale
does not treat those punished merely as means as long as it is
constrained by the retributivist prohibitions on punishment of the
innocent and disproportionate punishment of the guilty (see Walker
1980: 80-85; Hoskins 2011a). Still, a critic may argue that if
we are to treat another with the respect due to her as a rational and
responsible agent, we must seek to modify her conduct only by offering
her good and relevant reasons to modify it for herself. Punishment
aimed at deterrence, incapacitation, or offender reform, however, does
not satisfy that demand. A reformative system treats those subjected
to it not as rational, self-determining agents, but as objects to be
re-formed by whatever efficient (and humane) techniques we can find.
An incapacitative system does not leave those subjected to it free, as
responsible agents should be left free, to determine their own future
conduct, but seeks to preempt their future choices by incapacitating
them. And although a deterrent system does, unlike the others, offer
potential offenders reason to obey the law, it offers them the wrong
kind of reason: instead of addressing them as responsible moral
agents, in terms of the moral reasons which justify the law's
demands on them, it addresses them as merely self-interested beings,
in the coercive language of threat; deterrence treats 'a man
like a dog instead of with the freedom and respect due to him as a
man' (Hegel 1821: 246. For these objections, see Lewis 1953; H
Morris 1968; Duff 1986: 178-86; von Hirsch 1993: 9-14; von
Hirsch and Ashworth 1998, chs. 1, 3).



One strategy for dealing with them is to posit a two-step
justification of punishment. The first step, which typically appeals
to nonconsequentialist values, shows how the commission of a crime
renders the offender eligible for, or liable to, the kinds of coercive
treatment that punishment involves: such treatment, which is normally
inconsistent with the respect due to us as rational agents or as
citizens, and inconsistent with the Kantian means principle, is
rendered permissible by the commission of the offence. The second step
is then to offer positive consequentialist reasons for imposing
punishment on those who are eligible for it or liable to it: we should
punish if and because this can be expected to produce sufficient
consequential benefits to outweigh its undoubted costs. (Further
nonconsequentialist constraints might also be placed on the severity
and modes of punishment that can be permitted: constraints either
flowing from an account of just what offenders render themselves
liable to, or from other values external to the system of
punishment.)



Thus, for instance, some argue that those who voluntarily break the
law thereby forfeit at least some of the rights that citizens can
normally claim: their wrongdoing therefore legitimises kinds of
treatment (reformative or incapacitative treatment, for instance, or
deterrent punishment) that would normally be wrong as violating
citizens' rights (see Goldman 1982; C Morris 1991; Wellman 2012;
for criticisms, see Lippke 2001a; Boonin 2008: 103-19). We must
ask, however, whether we should be so quick to exclude fellow citizens
from the rights and status of citizenship, or whether we should not
look for an account of punishment (if it is to be justified at all) on
which punishment can still be claimed to treat those punished as full
citizens. (The common practice of denying imprisoned offenders the
right to vote while they are in prison, and perhaps even after they
leave prison, is symbolically significant in this context: those who
would argue that punishment should be consistent with recognised
citizenship should also oppose such practices; see Lippke 2001b;
*Journal of Applied Philosophy* 2005; see also generally s.
9.)



Another view holds that punishment does not violate offenders'
rights insofar as they consent to their punishment (see Nino 1983).
The consent view holds that when a person voluntarily commits a crime
while knowing the consequences of doing so, she thereby consents to
these consequences. This is not to say that she *explicitly*
consents to being punished, but rather than by her voluntary action
she *tacitly* consents to be subject to what she knows are the
consequences. Notice that, like the forfeiture view, the consent view
is agnostic regarding the positive aim of punishment: it purports to
tell us only that punishing the person does not wrong her, as she has
effectively waived her right against such treatment. The consent view
faces formidable objections, however. First, it appears unable to
ground prohibitions on excessively harsh sentences: if such sentences
are implemented, then anyone who subsequently violates the
corresponding laws will have apparently tacitly consented to the
punishment (Alexander 1986). A second objection is that most offenders
do not in fact consent, even tacitly, to their sentences, because they
are unaware either that their acts are subject to punishment or of the
severity of the punishment to which they may be liable. For someone to
have consented to be subject to certain consequences of an act, she
must know of these consequences (see Boonin 2008: 161-64). A
third objection is that, because tacit consent can be overridden by
explicit denial of consent, it appears that explicitly nonconsenting
offenders could not be justifiably punished on this view (ibid.:
164-165; but see Imbrisevic 2010).



Others offer contractualist or contractarian justifications of
punishment, grounded in an account not of what treatment offenders
have in fact tacitly consented to, but rather of what rational agents
or reasonable citizens would endorse. The punishment of those who
commit crimes is then, it is argued, rendered permissible by the fact
that the offender himself would, as a rational agent or reasonable
citizen, have consented to a system of law that provided for such
punishments (see e.g., Dolovich 2004; Brettschneider 2007; Finkelstein
2011; for criticism, see Dagger 2011; see also Matravers 2000). Still
others portray punishment (in particular deterrent punishment) as a
species of societal (self-) defence -- and it seems clear that to
defend oneself against a wrongful attack is not to use the attacker
'merely as a means', or to fail to show him the respect
that is his due. (For versions of this kind of argument, see Alexander
1980; Quinn 1985; Farrell 1985, 1995; Montague 1995; Ellis 2003 and
2012. For criticism, see Boonin 2008: 192-207. For a
particularly intricate development of this line of thought, grounding
the justification of punishment in the duties that we incur by
committing wrongs, see Tadros 2011; for critical responses, see the
special issue of *Law and Philosophy*, 2013.)



One might argue that the Hegelian objection to a system of deterrent
punishment overstates the tension between the types of reasons, moral
or prudential, that such a system may offer. Punishment may
communicate both a prudential and a moral message to members of the
community. Even before a crime is committed, the threat of punishment
communicates societal condemnation of an offense. This moral message
may help to dissuade potential offenders, but those who are
unpersuaded by this moral message may still be prudentially deterred
by the prospect of punishment. Similarly, those who actually do commit
crimes may be dissuaded from reoffending by the moral censure conveyed
by their punishment, or else by the prudential desire to avoid another
round of hard treatment. What's more, even if punishment itself
did provide *solely* prudential reasons not to commit crimes,
the criminal legal system more generally may communicate with citizens
in moral terms. Through its criminal statutes, a community declares
certain acts to be wrong and makes a moral appeal to community members
to comply, whereas trials and convictions can communicate a message of
deserved censure to the offender. Thus even if a system of deterrent
punishment is itself regarded as communicating solely in prudential
terms, it seems that the criminal law more generally can still
communicate a moral message to those subject to it (see Hoskins
2011a).



A somewhat different attempt to accommodate prudential as well as
moral reasons in an account of punishment begins with the
retributivist notion that punishment is justified as a form of
deserved censure, but then contends that we should communicate censure
through penal hard treatment because this will give those who are
insufficiently impressed by the moral appeal of censure prudential
reason to refrain from crime; because, that is, the prospect of such
punishment might deter those who are not susceptible to moral
persuasion. (See Lipkin 1988, Baker 1992. For a sophisticated revision
of this idea, which makes deterrence firmly secondary to censure, see
von Hirsch 1993, ch. 2; Narayan 1993. For critical discussion, see
Bottoms 1998; Duff 2001, ch. 3.3. For another subtle version of this
kind of account, see Matravers 2000.) This kind of account differs
from the accounts just discussed, on which retributivist prohibitions
on punishment of the innocent or excessive punishment of the guilty
constrain the pursuit of consequentialist aims, since in the current
account the (retributivist) imposition of deserved censure is part of
the positive justifying aim of punishment; and it can claim, in
response to the Hegelian objection to deterrence, that it does not
address potential offenders merely 'like dogs', since the
law's initial appeal to the citizen is in the appropriate moral
terms: the prudential, coercive reasons constituted by penal hard
treatment as deterrence are relevant only to those who are deaf, or at
least insufficiently attentive, to the law's moral appeal. It
might be objected that on this account the law, in speaking to those
who are not persuaded by its moral appeal, is still abandoning the
attempt at moral communication in favour of the language of threats,
and thus ceasing to address its citizens as responsible moral agents:
to which it might be replied, first, that the law is addressing us,
appropriately, as fallible moral agents who know that we need the
additional spur of prudential deterrence to persuade us to act as we
should; and second, that we cannot clearly separate the (merely)
deterrent from the morally communicative dimensions of punishment
-- that the dissuasive efficacy of legitimate punishment still
depends crucially on the moral meaning that the hard treatment is
understood to convey.



One more mixed view worth noting holds that punishment is justified as
a means of teaching a moral lesson to those who commit crimes, and
perhaps to community members more generally (the seminal articulations
of this view are H. Morris 1981 and Hampton 1984; for a more recent
account, see Demetriou 2012; for criticism, see Deigh 1984,
Shafer-Landau 1991). Like standard consequentialist accounts, the
moral education view acknowledges that punishment's role in
reducing crime is a central part of its rationale (see, e.g., Hampton
1984: 211). But education theorists also take seriously the Hegelian
worry discussed earlier; they view punishment not as a means of
conditioning people to behave in certain ways, but rather as a means
of teaching them that what they have done should not be done because
it is morally wrong. Thus although the education view sets offender
reform as an end, it also implies certain nonconsequentialist
constraints on how we may appropriately pursue this end. Another
distinctive feature of the moral education view is that it conceives
of punishment as aiming to confer a benefit on the offender: the
benefit of moral education. Critics have objected to the moral
education view on various grounds, however. Some are sceptical about
whether punishment is the most effective means of moral education.
Others deny that most offenders need moral education; many offenders
realise what they are doing is wrong but are weak-willed, impulsive,
etc. Also, may liberal theorists object that the education view is
inappropriately paternalistic in that it endorses coercively
restricting offenders' liberties as a means to confer a benefit
on them.



Each of the theories discussed in this section incorporates, in
various ways, consequentialist and nonconsequentialist elements.
Whether any of these is more plausible than pure consequentialist or
pure retributivist alternatives is, not surprisingly, a matter of
ongoing philosophical debate. One possibility, of course, is that none
of the theories on offer is successful because punishment is,
ultimately, unjustifiable. The next section considers penal
abolitionism.


## 7. Abolition and Alternatives



Abolitionist theorising about punishment takes many different forms,
united only by the insistence that we should seek to abolish, rather
than merely to reform, our practices of punishment. (Classic
abolitionist texts include Christie 1977, 1981; Hulsman 1986, 1991; de
Haan 1990; Bianchi 1994.) An initial question is precisely what
practices should be abolished. Some abolitionists focus on particular
modes of punishment, such as capital punishment (see, e.g., Brooks
2004; Yost 2019) or imprisonment (see, e.g., A. Y. Davis 2003).
What's more, a prominent strand of abolitionism focuses on
incarceration as practiced in the U.S. context, with links drawn
between imprisonment and the American legacy of slavery, Jim Crow, and
segregation (see, e.g., Adelsberg et. al. 2015; McLeod 2019; Roberts
2019). Insofar as such critiques are grounded in concerns about racial
disparities, mass incarceration, police abuses, and other features of
the U.S. criminal justice system, they may have implications for other
U.S. criminal justice practices in addition to incarceration. At the
same time, insofar as the critiques are based on particular features
of the U.S. system, it may be less clear what implications they have
for imprisonment as it is implemented in other polities. By contrast,
other abolitionist accounts focus not on some particular mode(s) of
punishment, or on a particular mode of punishment as administered in
this or that legal system, but rather on criminal punishment in any
form (see, e.g., Golash 2005; Boonin 2008; Zimmerman 2011). It is
important to be clear about the target of critique: to endorse the
abolition of imprisonment, or even of criminal punishment in any form,
as it is currently practiced allows for the possibility that a
suitably reformed system of imprisonment or punishment in some other
form could be justified (and here it may be difficult, as with
Theseus's ship, to distinguish between radically rebuilding an
existing practice and abolishing it in favour of an alternative
practice).



The more powerful abolitionist challenge is that punishment cannot be
justified even in principle. After all, when the state imposes
punishment, it treats some people in ways that would typically
(outside the context of punishment) be impermissible. It subjects them
to intentionally burdensome treatment and to the condemnation of the
community. Abolitionists find that the various attempted
justifications of this intentionally burdensome condemnatory treatment
fail, and thus that the practice is morally wrong -- not merely
in practice but in principle. For such accounts, a central question is
how the state should respond to the types of conduct for which one
currently would be subject to punishment. In this section we attend to
three notable types of abolitionist theory and the alternatives to
punishment that they endorse.



Most prominently, many abolitionists look to 'restorative
justice' as an alternative to punishment.
('Restorative' practices and programmes also play an
increasingly significant, although still somewhat marginal, role
*within* the criminal process of trial and punishment; but our
concern here is with restorative justice as an *alternative* to
punishment.) The restorative justice movement has been growing in
strength: although there are different and conflicting conceptions of
what 'restorative justice' means or involves, one central
theme is that what crime makes necessary is a process of reparation or
restoration between offender, victim, and other interested parties;
and that this is achieved not through a criminal process of trial and
punishment, but through mediation or reconciliation programmes that
bring together the victim, offender and other interested parties to
discuss what was done and how to deal with it (see generally Matthews
1988; Daly and Immarigeon 1998; von Hirsch and Ashworth 1998, ch. 7;
Braithwaite 1999; Walgrave 2002; von Hirsch et al 2003; von Hirsch,
Ashworth and Shearing 2005; London 2011; Johnstone 2011, 2012).



Advocates of restorative justice often contrast it with
'retributive' justice; they argue that we should look for
restoration rather than retribution or punishment, and seek to repair
harms caused rather than to inflict punitive suffering for wrongs
done. But one might regard this as a false dichotomy (see Allais 2011;
Duff 2011a). For when we ask what it is that requires
'restoration' or repair, the answer must refer not only to
whatever material harm was caused by the crime, but to the wrong that
was done: that was what fractured the relationship between offender
and victim (and the broader community), and that is what must be
recognised and 'repaired' or made up for if a genuine
reconciliation is to be achieved. A restorative process that is to be
appropriate to crime must therefore be one that seeks an adequate
recognition, by the offender and by others, of the wrong done--a
recognition that must for the offender, if genuine, be repentant; and
that seeks an appropriate apologetic reparation for that wrong from
the offender. But those are also the aims of punishment as a species
of secular penance, as sketched above. A system of criminal
punishment, however improved it might be, is of course not well
designed to bring about the kind of personal reconciliations and
transformations that advocates of restorative justice sometimes seek;
but it could be apt to secure the kind of formal, ritualised
reconciliation that is the most that a liberal state should try to
secure between its citizens. If we focus only on imprisonment, which
is still often the preferred mode of punishment in many penal systems,
this suggestion will appear laughable; but if we think instead of
punishments such as Community Service Orders (now part of what is
called Community Payback) or probation, it might seem more
plausible.



This argument does not, of course, support that account of punishment
against its critics. What it might suggest, however, is that although
we can learn much from the restorative justice movement, especially
about the role that processes of mediation and reparation can play in
our responses to crime, its aim should not be the abolition or
replacement of punishment: 'restoration' is better
understood, in this context, as the proper aim of punishment, not as
an alternative to it (see further Duff 2001, ch. 3.4-6, but also
Zedner 1994).



A similar issue is raised by the second kind of abolitionist theory
that we should note here: the argument that we should replace
punishment by a system of enforced restitution (see e.g., Barnett
1977; Boonin 2008: ch. 5 -- which also cites and discusses a
number of objections to the theory). For we need to ask what
restitution can amount to, what it should involve, if it is to
constitute restitution not merely for any harm that might have been
caused, but for the wrong that was done; and it is tempting to answer
that restitution for a wrong must involve the kind of apologetic moral
reparation, expressing a remorseful recognition of the wrong, that
communicative punishment (on the view sketched above) aims to
become.



More generally, advocates of restorative justice and of restitution
are right to highlight the question of what offenders owe to those
whom they have wronged -- and to their fellow citizens (see also
Tadros 2011 for a focus on the duties that offenders incur). Some
penal theorists, however, especially those who connect punishment to
apology, will reply that what offenders owe precisely includes
accepting, undertaking, or undergoing punishment.



A third alternative approach that has gained some prominence in recent
years is grounded in belief in free will scepticism, the view that
human behaviour is a result not of free will but of determinism, luck,
or chance, and thus that the notions of moral responsibility and
desert on which many accounts of punishment (especially retributivist
theories) depend are misguided (see s. 5). As an alternative to
holding offenders responsible, or giving them their just deserts, some
free will sceptics (see Pereboom 2013; Caruso 2021) instead endorse
incapacitating dangerous offenders on a model similar to that of
public health quarantines. Just as it can arguably be justified to
quarantine someone carrying a transmissible disease even if that
person is not morally responsible for the threat they pose, proponents
of the quarantine model contend that it can be justified to
incapacitate dangerous offenders even if they are not morally
responsible for what they have done or for the danger they present.
One question is whether the quarantine model is best understood as an
alternative to punishment or as an alternative form of punishment.
Beyond questions of labelling, however, such views also face various
lines of critique. In particular, because they discard the notions of
moral responsibility and desert, they face objections, similar to
those faced by pure consequentialist accounts (see s. 3), that they
cannot in principle rule out disproportionate punishment, or that they
are inconsistent with respect for persons and with human dignity (see,
e.g., Smilansky 2011).


## 8. International Criminal Law and Punishment



Theoretical discussions of criminal punishment and its justification
typically focus on criminal punishment in the context of domestic
criminal law. But a theory of punishment must also have something to
say about its rationale 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
2007). Rather, the imposition of punishment in the international
context raises distinctive conceptual and normative issues.



One key question is which crimes rise to the level of
'international crimes' and are thus rightly subject to
prosecution and punishment by international rather than domestic
institutions. One prominent answer to this question (May 2005) holds
that when a state fails to assure its citizens' safety and
security, it thus has no right to prevent international bodies from
infringing its sovereignty. Such international intervention is only
justified, however, in cases of serious harm to the international
community, or to humanity as a whole. Crimes harm humanity as a whole,
on this account, when they are group-based either in the sense that
they are based on group characteristics of the victims or are
perpetrated by a state or another group agent. Such as account has
been subject to challenge focused on its harm-based account of crime
(Renzo 2012) and its claim that group-based crimes harm humanity as a
whole (A. Altman 2006). One response to this sort of account, then, is
to reject the international harm requirement and to contend, instead,
that a state's failure to protect its members' rights is
sufficient to justify international intervention (Altman and Wellman
2004), or that international criminal tribunals can be justified if
they provide fair procedures for trials and punishments in response to
sufficiently heinous crimes (Luban 2010).



We might think, by contrast, that the heinousness of a crime or the
existence of fair legal procedures is not enough. We also need some
relational account of why the international legal community --
rather than this or that domestic legal entity -- has standing to
call perpetrators of genocide or crimes against humanity to account:
that is, why the offenders are answerable to the international
community (see Duff 2010). For claims of standing to be legitimate,
they must be grounded in some shared normative community that includes
the perpetrators themselves as well as those on behalf of whom the
international legal community calls the perpetrators to account. (For
other discussions of jurisdiction to prosecute and punish
international crimes, see W. Lee 2010; Wellman 2011; Giudice and
Schaeffer 2012; Davidovic 2015.)



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.) The
Nuremberg Tribunal articulated what has since become the governing
view in international criminal law: 'Crimes against
international law are committed by men, not by abstract entities, and
only by punishing individuals who commit such crimes can the
provisions of international law be enforced' (International
Military Tribunal 1947). Several scholars in recent years have
suggested, however, that rather than focusing only on prosecuting and
punishing members of the groups responsible for mass atrocities, it
may sometimes be preferable to prosecute and punish the entire group
qua group. A worry for such proposals is that, because punishment
characteristically involves the imposition of burdens, punishment of
an entire group risks inflicting punitive burdens on innocent members
of the group: those who were nonparticipants in the crime, or perhaps
even worked against it or were among its victims. 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 2011; Pasternak 2011; Tanguagy-Renaud 2013; but see Hoskins
2014b), or that the benefits of such punishment may be valuable enough
to override concerns about harm to innocents (see Lang 2007: 255).


## 9. Collateral Consequences



Punishment theorists should also attend to various other kinds of
burdensome consequences of criminal convictions, often called
'collateral consequences'. Most centrally, those convicted
of crimes are subject to a range of coercive state policies: measures
restricting offenders' access to jobs, housing, public
assistance, the vote, and a host of others goods; subjecting them to
continued detention; making their criminal records publicly available,
and so on -- often long after they have completed their formal
criminal sentences (see, e.g., von Hirsch and Wasik 1997; LaFollette
2005; de Keijser 2012; Hoskins 2014a, 2016, 2019; Sigler 2014; Bennett
2016; Brown 2021). Legal practice has tended to treat these sorts of
measures not as part of an offender's punishment, but as civil
or administrative measures (one effect of which is that they often
escape the constraints of justice and proportionality to which
punishment is subject). 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.



The legal measures are relevant for punishment theorists for a number
of reasons, but here we note just two: First, at least some of these
restrictive measures may be best regarded as as additional forms of
punishment (see Lippke 2016: ch. 9; Hoskins 2019: chs. 3 and 4). For
such measures, we must ask whether they are (or can be made to be)
consistent with the principles and considerations we believe should
govern impositions of punishment. Second, even if at least some
measures are not best regarded as additional forms of punishment, we
should ask what justifies the state in imposing additional coercive
measures on those convicted of crimes outside the context of the
punishment itself (see Ashworth and Zedner 2011, 2012; Ramsay 2011;
Ashworth, Zedner, and Tomlin 2013; Hoskins 2019: chs. 5-7). For
instance, if we regard punishment as the way in which offenders pay
their debts to society, we can argue that it is at least presumptively
unjustified for the state to impose additional burdensome measures on
offenders once this debt has been paid. To say that certain measures
are presumptively unjustified is not, of course, to establish that
they are all-things-considered prohibited. Various collateral
consequences -- restrictions on employment or housing, for
example -- are often defended as public safety measures. We might
argue (see Hoskins 2019: ch. 7) that in some cases considerations of
public safety can be sufficiently compelling to justify certain
measures (for example, measures that bar people with convictions for
child sex offences from working as teachers, or that bar fraudsters
from working in jobs where they are responsible for other
people's money). Public safety restrictions could only be
justifiable, however, when there is a sufficiently compelling public
safety interest, when the measures will be effective in serving that
interest, when the measures will not do more harm than good, and when
there are no less burdensome means of achieving the public safety aim.
Even for public safety measures that meet these conditions, we should
not lose sight of the worry that imposing such restrictions on people
with criminal convictions but who have served their terms of
punishment denies them the equal treatment to which they, having paid
their debt, are entitled (on this last worry, see, e.g., Walen
2011:1264-66; Lippke 2016: ch. 9; Hoskins 2019: ch. 7).



In addition to these formal legal consequences of a conviction, people
with criminal records also face a range of informal collateral
consequences, such as social stigma, family tensions, discrimination
by employers and housing authorities, and financial challenges. These
consequences are not imposed by positive law, but they may be
permitted by formal legal provisions (such as those that grant broad
discretion to public housing authorities in the United States making
admission decisions) or facilitated by them (such as when laws making
criminal records widely accessible enable employers or landlords to
discriminate against those with criminal histories). There are also
widely documented burdensome consequences of a conviction to the
family members or loved ones of those who are convicted, and to their
communities. These sorts of informal consequences of criminal
convictions appear less likely than the formal legal consequences to
constitute legal punishment, insofar as they are not intentionally
imposed by the state (but see Kolber 2012). Still, the informal
collateral consequences of a conviction are arguably relevant to
theorising about punishment, and we should examine when, if ever, such
burdens are relevant to sentencing determinations (on sentencing, see
s. 10), or whether the state has obligations to ensure that the
burdens of punishment do not spill over beyond the intended burdens of
the criminal sentence (see Manning 2011; Bulow 2014; Lippke
2017).


## 10. Further Issues



A number of further important questions are relevant to theorising
about punishment, which can only be noted here.



First, there are questions about sentencing. (See generally Robinson
1987; Morris and Tonry 1990; von Hirsch 1993; Tonry 1996; von Hirsch
and Ashworth 2005; Ashworth, von Hirsch and Roberts 2009; Frase 2012.)
Who should decide what kinds and what levels of sentence should be
attached to different offences or kinds of offence: what should be the
respective roles of legislatures, of sentencing councils or
commissions, of appellate courts, of trial judges, of juries? By what
criteria should such decisions be made: how far should they be guided
by a retributivist principle of proportionality, requiring punishments
to be 'proportionate' in their severity to the seriousness
of the crime; how far by consequentialist considerations of efficient
crime-prevention? What kinds of punishment should be available to
sentencers, and how should they decide which mode of punishment is
appropriate for the particular offence? Considerations of the meaning
of different modes of punishment should be central to these questions
(see e.g., Lippke 2007, Hoskins 2013).



Second, there are questions about the relation between theory and
practice -- between the ideal, as portrayed by a normative theory
of punishment, and the actualities of existing penal practice. Suppose
we have come to believe, as a matter of normative theory, that a
system of legal punishment could in principle be justified --
that the abolitionist challenge can be met. It is, to put it mildly,
unlikely that our normative theory of justified punishment will
justify our existing penal institutions and practices: it is far more
likely that such a theory will show our existing practices to be
radically imperfect -- that legal punishment as it is now imposed
is far from meaning or achieving what it should mean or achieve if it
is to be adequately justified (see Heffernan and Kleinig 2000). If our
normative theorising is to be anything more than an empty intellectual
exercise, if it is to engage with actual practice, we then face the
question of what we can or should do about our current practices. The
obvious answer is that we should strive so to reform them that they
can be in practice justified, and that answer is certainly available
to consequentialists, on the plausible assumption that maintaining our
present practices, while also seeking their reform, is likely to do
more good or less harm than abandoning them. But for retributivists
who insist that punishment is justified only if it is just, and for
communicative theorists who insist that punishment is just and
justified only if it communicates an appropriate censure to those who
deserve it, the matter is harder: for to maintain our present
practices, even while seeking their radical reform, will be to
maintain practices that perpetrate serious injustice (see Murphy 1973;
Duff 2001, ch. 5).



Finally, the relation between the ideal and the actual is especially
problematic in the context of punishment partly because it involves
the preconditions of just punishment. That is to say, what makes an
actual system of punishment unjust(ified) might be not its own
operations as such (what punishment is or achieves within that
system), but the absence of certain political, legal and moral
conditions on which the whole system depends for its legitimacy (see
Duff 2001, ch. 5.2). Recent scholarship on punishment has increasingly
acknowledged that the justification of punishment depends on the
justification of the criminal law more generally, and indeed the
legitimacy of the state itself (see s. 2 above). For example, if the
state passes laws criminalising conduct that is not justifiably
prohibited, then this calls into question the justification of the
punishment it imposes for violations of these laws. Questions of
criminalisation are thus directly relevant to punishment's
justification (see Husak 2008). Similarly, if the procedures by which
criminal justice officials apprehend, charge, and prosecute
individuals are unjustified, then the subsequent inflictions of
punishment will be unjustified as well (see Ristroph 2015 and 2016; on
specific aspects of criminal procedure, see, e.g., Loader 2014 on
policing, Lippke 2011 on plea bargaining, Duff et al 2007 on criminal
trials, Flanders 2013 on pardons). More broadly, if a states tolerates
(or worse, encourages) serious social injustices, then this may
undermine the state's standing to punish offenders who are also
victims of such injustices (see, e.g., Matravers 2006; Duff 2007;
Holroyd 2010; Chau 2012; Howard 2013).