Law Commons^™

Punishment, Liberalism, And Public Reason, Chad Flanders

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The article argues for a conception of the justification of punishment that is compatible with a modern, politically liberal regime. Section I deals with what some have thought are the obvious social interests society has in punishing criminals, and tries to develop those possible interests somewhat sympathetically. Section II suggests that many of those reasons are not good ones if punishment is regarded (as it should be) from the perspective of political philosophy. Social responses to bad things happening to people cannot be grounded in controversial metaphysical views about what is good for people or what people deserve, but many …

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

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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 …

Shame And The Meanings Of Punishment, Chad Flanders

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Debates over shaming punishments have raged over the past few years, with people like Dan Kahan and Eric Posner for them, while James Whitman and Martha Nussbaum have entered the fray strongly against them. This Essay argues that both sides in the shaming punishment debate have it only party right. Those who favor shaming sanctions are correct that we should (all else being equal) favor those punishments which are expressive rather than those that involve some form of hard treatment. And those who reject shaming sanctions are correct that such sanctions involve forms of humiliation and denials of dignity that …