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Why Not Penal Torture?, Cleo Grimaldi

Philosophy Theses

I argue here that the practice of penal torture is not intrinsically wrongful. A common objection against the practice of penal torture is that there is something about penal torture that makes it wrongful, while this is not the case for other modes of punishment. I call this claim the asymmetry thesis. One way to defend this position is to claim that penal torture is intrinsically wrongful. It is the claim I argue against here. I discuss and reject three versions this claim. I first address a version that is based on the idea that penal torture, unlike other …

Prevention And Imminence, Pre-Punishment And Actuality, Gideon Yaffe

San Diego Law Review

In a variety of circumstances, it is justified to harm persons, or deprive them of liberty, in order to prevent them from doing something objectionable. We see this in interactions between individuals--think of self-defense or defense of others--and we see it in large-scale interactions among groups--think of preemptive measures taken by countries against conspiring terrorists, plotting dictators, or ambitious nations. We can argue, of course, about the details. Under exactly what conditions is it justified to inflict harm or deprive someone of liberty for reasons of prevention? But in having such arguments we agree on the fundamental idea: there are …

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

San Diego Law Review

This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.

More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk, …

Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak

San Diego Law Review

Most of the scholarly reaction to systems of preventive detention has been hostile. Negative judgments are especially prevalent among penal theorists who hold nonconsequentialist, retributivist rationales for criminal law and punishment. Surely their criticisms are warranted as long as we confine our focus to the existing systems of preventive detention that flagrantly disregard fundamental principles of legality and desert. Nonetheless, I believe that many of their more sweeping objections tend to rest too uncritically on doctrines of criminal theory that are not always supported by sound arguments even though they are widely accepted. I will contend that we cannot fully …

The Effects Of Culture And Friendship On Rewarding Honesty And Punishing Deception, Cynthia S. Wang, Angela K.-Y. Leung, Michelle Ya Hui See, Xiang Yu Gao

Research Collection School of Social Sciences

The present research explores whether the type of relationship one holds with deceptive or honest actors influences cross-cultural differences in reward and punishment. Research suggests that Americans reward honest actors more than they punish deceptive perpetrators, whereas East Asians reward and punish equally (Wang & Leung, 2010). Our research suggests that the type of relationship with the actor matters for East Asians, but not for Americans. East Asians exhibit favoritism toward their friends by rewarding more than punishing them, but reward and punish equally when the actors are strangers (Experiment 1 and 2); Americans reward more than they punish regardless …

Is Altruism Bad For Cooperation?, Sung-Ha Hwang, Samuel Bowles

Samuel Bowles

Some philosophers and social scientists have stressed the importance for good government of an altruistic citizenry that values the well being of one another. Others have emphasized the need for incentives that induce even the self interested to contribute to the public good. Implicitly most have assumed that these two approaches are complementary or at worst additive. But this need not be the case. Behavioral experiments find that if reciprocity-minded subjects feel hostility towards free riders and enjoy inflicting harm on them, near efficient levels of contributions to a public good may be supported when group members have opportunities to …

Reducing Reliance On Supplemental Winter Feeding In Elk (Cervus Canadensis): An Applied Management Experiment At Deseret Land And Livestock Ranch, Utah, Dax L. Mangus

All Graduate Theses and Dissertations, Spring 1920 to Summer 2023

Wildlife managers have fed elk in North America for nearly 100 years. Giving winter feed to elk can compensate for a shortage of natural winter range and may boost elk populations while also helping prevent commingling with livestock and depredation of winter feed intended for livestock. In contrast to these benefits of supplemental feeding, there are economic and environmental costs associated with feeding, and elk herds that winter on feeding grounds have a higher risk of contracting and transmitting disease. Brucellosis is of primary concern now, and Chronic Wasting Disease may be in the future. Many see the discontinuation of …

Reward, Punishment, And Cooperation: A Meta-Analysis, Daniel Balliet, Laetitia B. Mulder, Paul A. M. Van Lange

Research Collection School of Social Sciences

How effective are rewards (for cooperation) and punishment (for noncooperation) as tools to promote cooperation in social dilemmas or situations when immediate self-interest and longer term collective interest conflict? What variables can promote the impact of these incentives? Although such questions have been examined, social and behavioral scientists provide different answers. To date, there is no theoretical and/or quantitative review of rewards and punishments as incentives for cooperation in social dilemmas. Using a novel interdependence-theoretic framework, we propose that rewards and punishments should both promote cooperation, and we identify 2 variables-cost of incentives and source of incentives-that are predicted to …

Reward, Punishment, And Cooperation: A Meta-Analysis, Daniel Balliet, Laetitia B. Mulder, Paul A. M. Van Lange

Research Collection School of Social Sciences

How effective are rewards (for cooperation) and punishment (for noncooperation) as tools to promote cooperation in social dilemmas or situations when immediate self-interest and longer term collective interest conflict? What variables can promote the impact of these incentives? Although such questions have been examined, social and behavioral scientists provide different answers. To date, there is no theoretical and/or quantitative review of rewards and punishments as incentives for cooperation in social dilemmas. Using a novel interdependence-theoretic framework, we propose that rewards and punishments should both promote cooperation, and we identify 2 variables-cost of incentives and source of incentives-that are predicted to …

Monitors, Ryan Boudinot

Booth

A room lit by a bank of monitors. Two technicians, Ross and Andy, watch the progress of the subjects. If the subjects perform outside the performance parameters, there are a number of contingency strategies in the Standard Operating Procedures (SOP) manual to which Ross and Andy must refer.

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Power And Humiliation In Foreign Policy: The Effects Of Economic Sanctions, Rebecca A. G. Liftman

Electronic Theses and Dissertations

This thesis analyzes the use and unintended outcomes of power in international politics through an examination of economic sanctions in selected countries. A theoretical argument is derived from punishment theories and analyzes the effects of punishment on the target, including subjugation, humiliation and resistance. Seven cases of economic sanctions are studied: Cuba, Burma, Pakistan, Syria, Libya, Iraq, and Iran where the United States, either unilaterally or as the leader of a coalition, sought to influence political outcomes in the target state, such as regime change or curbing WMD proliferation. Economic sanctions were generally unsuccessful in achieving the expected outcomes and …

Retributive Justice And Standing: A Critique Of State Punishment, Benjamin H. Lawrence

Honors Theses

This thesis investigates the philosophical justifications of punishment, focusing in particular on the idea of standing to punish, and how the state can have standing. The two main doctrines of justifying punishment, retributivism and consequentialism, are considered. According to retributivism, punishment is justified by the desert of the wrongdoer, whereas consequentialism contends that punishment is justified by the good consequences that follow from punishing wrongdoers. This thesis concludes that retributivism better captures the moral intuitions associated with punishment, and is better suited to articulating the concept of standing to punish. Standing to punish can be seen as the “moral authority” …

Teshuva: A Look At Repentance, Forgiveness And Atonement In Jewish Law And Philosophy And American Legal Thought, Samuel J. Levine

Samuel J. Levine

Professor Levine examines the atonement model and its relevance to American law. He outlines and explains the necessary steps by the wrongdoer for atonement: repentance, apology, reparation and penance. The wronged party then has the obligation of reconciliation for the process to be complete. Despite the prominent position it has held for millennia in religious thinking, the atonement model is relatively new to American legal theory. Professor Stephen Garvey's attempt to offer a systematic depiction and analysis of the process of atonement and its possible relevance to American law appears to represent the most extensive effort to date. Any application …

Memory And Punishment, O. Carter Snead

Vanderbilt Law Review

Developments in cognitive neuroscience-the science of how the brain enables the mind--continue to prompt profound scholarly debate and reflection on the practice and theory of criminal law. Advances in the field have raised vexing questions relating to lie detection, interrogation methods, the Fifth Amendment right against compelled self-incrimination, competency to stand trial, defenses to guilt (such as diminished capacity and insanity), sentencing, and the relationship between moral responsibility and punishment. Similarly, for the past decade, philosophers, scientists, clinicians, and legal scholars have been engaged in a major debate about the cognitive neuroscience of memory and new capacities to modify it …

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.

"An Insanity Defense Should Be Available To Psychopaths", Christian Francis Richeson

Theses

Current law allows certain criminal defendants -- not including psychopaths -- an insanity defense. Both Utilitarian and Retributivist rationales can be cited for the defense. This essay argues that affording a defense like the insanity defense to criminal psychopaths is justified on much the same rationales. Integral to the psychopathy syndrome is a set of neurocognitive deficits that render psychopaths significantly less deterrable than non-psychopaths: first, psychopaths' relative inability to recognize when a behavior pattern that once netted benefits now nets costs, and to change their behavior accordingly; second, their relative inability to form the mental associations between an aversive …

Jean Hampton’S Theory Of Punishment: A Critical Appreciation, Richard Dagger

Political Science Faculty Publications

Jean Hampton’s work first came to my attention in 1984, when the summer issue of Philosophy & Public Affairs appeared in my mailbox. Hampton’s essay in that issue, “The Moral Education Theory of Punishment,” did not persuade me—or many others, I suspect—that “punishment should not be justified as a deserved evil, but rather as an attempt, by someone who cares, to improve a wayward person” (Hampton 1984, 237). The essay did persuade me, though, that moral education is a plausible aim of punishment, even if it is not the “full and complete justification” Hampton claimed it to be (Hampton 1984, …

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Eileen Kaufman

No abstract provided.

Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson

All Faculty Scholarship

In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

David C. Gray

How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Retributivism For Progressives: A Response To Professor Flanders, David C. Gray, Jonathan Huber

David C. Gray

In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure …

The Pitfalls Of Professionalized Prosecution: A Response To Josh Bowers's "Legal Guilt, Normative Innocence, And The Equitable Decision Not To Prosecute", Stephanos Bibas

All Faculty Scholarship

This short essay responds to Josh Bowers’ article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute. While most scholars focus on the most visible injustices in the most serious cases, Bowers rightly notes that this sliver of serious felonies is dwarfed by the mountain of minor, low-visibility misdemeanors and violations. Prosecutors are reasonably good at classifying crimes based on legal guilt and administrative criteria, but are far worse at weighing all the particulars and exercising equitable discretion. Our consistent faith in prosecutors’ expertise, Bowers argues, is not only misguided but backwards; we should value outsiders’ fresh …

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 …

Collateral Consequences After Padilla V. Kentucky: From Punishment To Regulation, Margaret Colgate Love

Saint Louis University Public Law Review

This Article analyzes the scope of Padilla v. Kentucky, concluding that its logic extends beyond deportation to many other severe and certain consequences of conviction that are imposed by operation of law rather than by the sentencing court. It proposes a set of reforms that would limit the disruptive effect of these so-called “collateral consequences” on the guilty plea process and make a defense lawyer’s job easier. Part I describes a case currently pending in the Pennsylvania Supreme Court that may yield some important clues about how broadly the Padilla doctrine will be applied to status-generated consequences other than …

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 …

A System Of Exemptions: Historicizing State Illegality In Indonesia, Robert Cribb

Robert Cribb

No abstract provided.

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

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, …

Addressing Disproportionality In School Discipline Through Universal School-Widepositive Behavior Support, Kelly Lane

PCOM Psychology Dissertations

Suspensions are the most commonly used discipline strategy in schools and in many cases these lead to poor academic and behavioral outcomes for students. Suspensions are also implemented inconsistently as a consequence of disciplinary infractions; this has resulted in the disproportionate suspension rates of minority and special education students. Recently, school-wide Positive Behavior Support (SWPBS) has emerged as an alternative model to suspension. SWPBS is a proactive, school-wide approach to discipline, which focuses on teaching and reinforcing appropriate behavior to all students. The purpose of the current study is to examine the effectiveness of SWPBS on reducing disproportionate rates of …