Friday, December 17, 2010

Pluralism and Punishment

Most theories of punishment are monist.  One is usually either a retributivist, a deterrence theorist, or a rehabilitationist.  That is, most people think one of these kinds of theory about punishment is sufficient to justify punishment.

It also seems that most people do not think that they can work together.  So a theory which combines retributivism and deterrence is taken to be impossible or nonsensical, or perhaps merely unnecessary.

I think, contrarily, that punishment can be pluralist:  It can incoroporate multiple of these perspectives.

Pluralism can, I take it, come in a weak and a strong form.  The weak form of pluralism merely states that no monist theory of punishment is sufficient across the range of situations in which it is to be applied.  Applying only retributivism will not provide justified/defensible outcomes in all the situations in which applying punishment is appropriate.  This seems the case.  But I would go further, and argue for a strong form of pluralism.  According to a strong form of pluralism about punishment, not only is no single perspective sufficient across the whole range of cases, but there is also no consistent ordering of the theories of punishment, capable of general application.  That is, it is not the case that Retributivism ought always to be the primary consideration, with rehabilitation and deterrence modifying the retributively established outcome.  Rather, sometimes deterrence is primary, sometimes rehabilitation is primary.

This approach is more difficult to defend.  It requires a mechanism for determining the circumstances in which each of the plural approaches is primary, and probably also a weighting mechanism for combining their commands into a coherent description of the appropriate course of action when confronted with any particular circumstance requiring punishment.  But I think it is a better place to begin than are the monist positions.

Friday, December 10, 2010

The constraints imposed on punishment by structural injustice.

Modern liberal democratic states have robust criminal justice systems.  The police and the courts are generally reasonably consistent in their enforcement of the laws to all within the state, and punishments prescribed are usually proportional more to the crime committed than to the offender themselves.  There are, however, problematic exceptions.  The arrest and imprisonment rates for African Americans, particularly men, are disproportionate to their numbers in society, and even to their numbers within the lower socio-economic group that most of them are in (a problem in itself).  Similarly in Australia amongst Indigenous Australians, and in New Zealand amongst Maori, this kind of disproportionality arises.  Presuming that we cannot blame anything like an innate tendency towards criminality for the difference (and there is good reason to think that we can not do this), the best explanation for these results is some sort of structural injustice within the state.

That is, something about the institutional arrangement of the state disadvantages members of these groups, such that criminal behaviour is a better option (and hence, more often engaged in), than it is for society as a whole.  The state, or the arrangmeents made by the state, pushes members of these groups towards crime.  Having done so, it then arrests and imprisons them (which again, pushes those subjec tto these sanctions towards further crime).  The question is, to what extent should the existence of structural injustices within the state constrain the practice of the police and the courts in punishing criminals?  After all, if someone commits a crime due to some degree to the situation the state has placed them in, is not the state (to that degree) to blame, rather than the individual?

A first attempt at answering this question:  Minimise penal sanctions as much as possible.  Apply them consistently across the entire population for violent and sexual crimes, say, but take heavier account of social standing and the like in minor and non-violent crimes.  Attempt to avoid the imposition of additional penalties which lead to further isolation from the structure of the state, such as disenfranchisement.

Wednesday, December 8, 2010

Julian Assange

Has been arrested in London.  There is discussion everywhere on the web about this, but this article in The Atlantic is one of the better discussions.

My opinion is that the whole thing seems like angry governments hunting someone who made the mistake of believing them regarding freedom of speech and the dissemination of information.

Edit:  Alas, A Blog has 20 links to articles on the Assange situation! (On a single page, no less)