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Juvenile Life Without Parole: Exposing The Parallels Between Juvenile Offenders And Those Who Sentence Them, Autumn Fortenberry

Honors Theses

This thesis will discuss Juvenile Life Without Parole sentencing (JLWOP) from three perspectives: (1) the evolving standard of decency as developed through relevant U.S. Supreme Court cases; (2) the cognitive and psychosocial development of adolescents that creates reduced culpability in juvenile offenders; and (3) the justifications and implications of punishment as-applied to juvenile offenders. In my fourth chapter, I argue that JLWOP sentencing disregards the humanity and transformable nature of juvenile offenders. I will then draw a parallel between the implications of a juvenile offender's underdeveloped cognitive functions on their decision-making processes and the implications of a trial judge's underdeveloped …

The Philosophy Of Punishment: An Analysis Of Criminal Punishment In The Context Of Moral Justice, Bailey Mckeon

Senior Theses and Projects

No abstract provided.

Proportionality, Constraint, And Culpability, Mitchell N. Berman

All Faculty Scholarship

Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones. This essay proposes that these differences cannot be successfully adjudicated, and one …

Nietzsche On Criminality, Laura N. Mcallister

USF Tampa Graduate Theses and Dissertations

In Nietzsche scholarship, little has been done regarding Nietzsche’s reflections on penology and criminology. This dissertation aims to critically examine Friedrich Nietzsche’s thoughts on justice, punishment, and the criminal and to show that his interest in these topics runs throughout his writings. Nietzsche attacked the tradition of Western justice theory and the idea that justice consists in giving each their due. I argue that in place of this notion of justice, he puts forth a non-metaphysical, naturalistic account of justice that refuses to judge and hold man accountable. In addition, I explicate Nietzsche’s passionate critique of punishment, which stops short …

Suffrage Over Suffering: How Disenfranchisement Erodes The Legitimacy Of Democratic Punishment, Kendall Hollimon

CMC Senior Theses

In this thesis I analyze both retributive and consequentialist justifications for punishment to understand the foundation for disenfranchisement as punishment. I then argue that although some of these justifications can condone disenfranchisement, the practice of disenfranchising criminals damages the democratic process, thus delegitimizing the punishments that societies democratically decide to impose.

Villains, Morality, And Redemption: A Content Analysis Of Children’S Movies, Iqra Ishaq

Senior Honors Projects

Research on children’s movies has yielded important findings on messaging about gender, race, ethnicity, sexuality, (dis)ability, mental illness, aging, and even death. All of this research has recognized the important role children’s movies play in children’s upbringing and informal education. Not only do children’s movies reflect the commonly-held values of the time, but they impart these values to their audience. Children, as the target audience of these movies, are extremely susceptible to absorbing these values and messages.

My research examines what messages children’s movies impart about villains. It includes a content-analysis of 80 full-length animated movies released by Disney, DreamWorks, …

The Just Response To Crime: To Harm Or To Heal?, Matthew M. Silberstein

Philosophy Department Student Scholarship

In the realm of criminal justice, Western society has primarily relied on retributive justice system. A retributive system uses punishment as the standard response to crime. In recent years, some have formulated a different criminal justice system, that of restorative justice. Rather than punishment, restorative justice proponents argue that justice is achieved in the aftermath of crime by healing the trauma incurred by crime. The aim of this project is to articulate the value of restorative justice and evaluate its prospects.

Race And The Extra-Legal Punishment Of Professional Athletes, Samuel V. Bruton, Donald F. Sacco, Earl W. Spurgin, Kori N. Armstrong

2018 Faculty Bibliography

In recent years, major American sports teams and leagues have responded increasingly to players’ off-field, off-court wrongdoing by imposing extra-legal punishments (ELPs) on offending athletes. This paper focuses on an unexplored ethical concern raised by ELPs: teams’ and leagues’ economic incentive for racial bias in the imposed sanctions. In an experimental study, Black and White participants read a series of vignettes about fictional professional athletes who received ELPs for various off-field transgressions. Black participants evaluating punishments imposed on Black athletes found the ELPs inappropriate and overly punitive relative to punishments imposed on White or racially neutral athletes. Conversely, Whites assessing …

Punishing Without Free Will, Luis E. Chiesa

Luis Chiesa

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal …

Fortifying The Self-Defense Justification Of Punishment, Zac Cogley

Journal Articles

David Boonin has recently advanced several challenges to the self-defense justification of punishment. Boonin argues that the self-defense justification of punishment justifies punishing the innocent, justifies disproportionate punishment, cannot account for mitigating excuses, and does not justify intentionally harming offenders as we do when we punish them. In this paper, I argue that the self-defense justification, suitably understood, can avoid all of these problems. To help demonstrate the self-defense theory’s attraction, I also develop some contrasts between the self-defense justification, Warren Quinn’s better known ‘auto-retaliator’ argument, and desert-based justifications of punishment. In sum, I show that the self-defense justification of …

Fortifying The Self-Defense Justification Of Punishment, Zac Cogley

Zac Cogley

Strict Liability's Criminogenic Effect, Paul H. Robinson

All Faculty Scholarship

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails …

The Legal Limits Of “Yes Means Yes”, Paul H. Robinson

All Faculty Scholarship

This op-ed piece for the Chronicle of Higher Education argues that the affirmative consent rule of "yes means yes" is a useful standard that can help educate and ideally change norms regarding consent to sexual intercourse. But that goal can best be achieved by using “yes means yes” as an ex ante announcement of the society's desired rule of conduct. That standard only becomes problematic when used as the ex post principle of adjudication for allegations of rape. Indeed, those most interested in changing existing norms ought to be the persons most in support of distinguishing these two importantly different …

Blame And The Criminal Law, David Lefkowitz

Philosophy Faculty Publications

Many retributivists appear to presume that the concept of blame that figures in their accounts of just punishment is the same one people employ in their interpersonal moral relationships. David Shoemaker contends that this presumption is mistaken. Moral blameworthiness, he maintains, tracks only the meaning of a person's action––his reasons for acting as he did––while criminal blameworthiness, which he equates with liability to punishment, tracks only the impermissibility of an agent's action. I contest the second of these two claims, and in doing so defend the retributivists’ presumption. First, I argue that the purpose of a criminal trial can be …

The Impulse To Punish: A Critique Of Retributive Justice, Devika Agrawal

Scripps Senior Theses

This thesis explores the strength of the two major theories of punishment, consequentialism and retributivism. It also explores the two most critiqued systems of punishment in the world: The U.S and Norway. By presenting the idea that retributivism is the only plausible theory that can morally justify the U.S. penal practises, I argue against the theory by incorporating various objections delivered by Antony Duff, Michael Zimmerman, and Jeffrie Murphy. I then explore the question of what could possibly ground the Norwegian justice system, for the answer to this is crucial, if we hope to demand prison reform and tailor our …

The Tragedy Of Punishment: An Insight Into Why Doing Something Good Feels Bad, Trevor Martin

Honors Theses

My motivation for writing on what I have come to call “the tragedy of punishment” is the seemingly paradoxical state of affairs associated with punishment. The first state of affairs is the general understanding that punishment is not just a necessary practice but also a morally good one that serves not only to give criminals their just deserts but also generally benefit society and those in it. The second state of affairs is the realization that, despite the understanding that punishment is painted as a moral good, when thinking about all the harm caused by punishment one cannot help but …

Empirical Desert, Individual Prevention, And Limiting Retributivism: A Reply, Paul H. Robinson, Joshua Samuel Barton, Matthew J. Lister

All Faculty Scholarship

A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral …

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken M. Levy

Ken Levy

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are generally not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …

Play Fair With Recidivists, Richard Dagger

Political Science Faculty Publications

Retributivists thus face a difficult challenge. Either we must go against the social grain, and perhaps our own intuitions, by insisting that a criminal offense carry the same penalty or punishment no matter how many previous convictions an offender has accrued; or we must find a way to justify the recidivist premium. I shall take the second route here by arguing that recidivism itself is a kind of criminal offense. In developing this argument, I shall rely on Youngjae Lee's insightful analysis of "recidivism as omission." I shall complement his analysis, however, by grounding it in a conception of criminal …

Punishment And Reform, Steven Sverdlik

Philosophy Research

Reformist ideas in the philosophy of punishment can be traced back to Plato. However, it is only in the late 19^th century that explicitly reformist ‘theories’ are discussed by philosophers, and in the 20^th century that they are worked out at length. The conception of reform has recently undergone important changes. Contemporary writers who are apparently reformist utilize use an enriched moral conception of reform, which conceives of it in terms of repentance for wrongdoing and a commitment to obey the law for moral reasons. This departs from an earlier conception that places less emphasis on repentance and …

Rethinking Legal Retribution, Stephen Parsley

Philosophy Theses

In this paper I discuss retributivist justifications for legal punishment. I argue that the main moral retributivist theories advanced so far fail to support a plausible system of legal punishment. As an alternative, I suggest, with some reservations, the legal retributivism advanced by Alan Brudner in his Punishment and Freedom.

Punishing Without Free Will, Luis E. Chiesa

Journal Articles

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal …

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken M. Levy

Journal Articles

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are generally not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …

Social Contracts, Fair Play, And The Justification Of Punishment, Richard Dagger

Political Science Faculty Publications

In recent years, the counterintuitive claim that criminals consent to their own punishment has been revived by philosophers who attempt to ground the justification of punishment in some version of the social contract. In this paper, I examine three such attempts—“contractarian” essays by Christopher Morris and Claire Finkelstein and an essay by Corey Brettschneider from the rival “contractualist” camp—and I find all three unconvincing. Each attempt is plausible, I argue, but its plausibility derives not from the appeal to a social contract but from considerations of fair play. Rather than look to the social contract for a justification of punishment, …

Two Kinds Of Retributivism, Mitchell N. Berman

All Faculty Scholarship

This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).

Whether or not it is ultimately persuasive, consequentialist retributivism …

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken Levy

Ken Levy

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are generally not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …

Restoration But Also More Justice, Stephanos Bibas

All Faculty Scholarship

This short essay replies to Erik Luna's endorsement of restorative justice. He is right that the goal of healing victims, defendants, and their families is important but all too often neglected by substantive criminal law and procedure, which is far too state-centered and impersonal. The problem with restorative justice is that too often it seeks to sweep away punishment as barbaric and downplays the need for deterrence and incapacitation as well. In short, restorative justice deserves more of a role in American criminal justice. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach …

Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson

All Faculty Scholarship

The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment -- referred to variously as desert, just punishment, retributive punishment, or simply doing justice -- may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, …

Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith

Journal Articles

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …

The Utility Of Desert, Paul H. Robinson, John M. Darley

All Faculty Scholarship

The article takes up the debate between utility and desert as distributive principles for criminal liability and punishment and concludes that a utilitarian analysis that takes account of all costs and benefits will support the distribution of liability and punishment according to desert, or at least according to the principles of desert as perceived by the community. It reaches this conclusion after an examination of a variety of recent social science data. On the one hand, it finds the traditional utilitarian theories of deterrence, incapacitation, and rehabilitation to have little effect in many instances. It finds instead that the real …