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Notions of justice and punishment seem inextricably entwined in the oldest conceptual traditions of the West. Changing notions of just state responses to citizen crime can tell us much about the culture and the politics of a given society. Yet, often those notions are radically contradictory, mutually exclusive, and/or counterproductive of the goals they seek, together, to achieve in the society.This paper traces a genealogy of punishment rituals practiced in the United States and maps the relationship of reigning ideas of just recompense onto transforming political and cultural realities. This paper highlights the multiple paradoxes that have arisen in the U.S. in the attempt to visualize and realize appropriate and just punishment practices in the state.
Punishment is essentially about the expression and establishment of power. As such, punishment always carries with it the possibility of debasement. I want to insist that…
Punishment is essentially about the expression and establishment of power. As such, punishment always carries with it the possibility of debasement. I want to insist that the only morally legitimate purpose of punishment is to instill a respect for authority that does not demean the subordinated party (for example, as a parent might punish his or her child). In sum, my argument is that although harsh institutional punishment may be justifiable on utilitarian grounds, it is objectionable for aesthetic reasons that are ultimately far more important. As Nietzsche caustically recognized in the case of Christianity, the metaphysics of punishment is driven by the ugly feeling of ressentiment. Nevertheless, Christianity does emphasize one aspect of the question of punishment that Nietzsche would enthusiastically embrace: the attitude of forgiveness (or the act of mercy). For Nietzsche, mercy is a reflection of a beautiful strength. A new punitive paradigm, one that asserted superiority without debasing the criminal, might pave the way for a more general affirmation of life.
This chapter aims to demonstrate that the fundamental human rights principle that no one should be subjected to (grossly) disproportionate punishment should be interpreted…
This chapter aims to demonstrate that the fundamental human rights principle that no one should be subjected to (grossly) disproportionate punishment should be interpreted to take into account terminal illness of the offender. It should be applied both during imposition of the sentences and also during execution of already imposed sentences.
In order to reveal whether this principle takes into account serious medical conditions, including terminal illness of the offender in the calculus of the proportionality of punishment and whether it is applicable at the execution stage of sentences, this chapter examined the roots of the fundamental human rights principle of proportionality of punishment by briefly surveying the penal theory, jurisprudence, court cases, laws, and legislative history from the U.S. federal and state jurisdictions and from Europe.
There is a consensus among surveyed theories that terminal illness of the offender is an element of the principle of proportionality of punishment. Thus the fundamental human rights principle must be interpreted to take it into account. The principle should be observed not only at the imposition stage, but also at the execution stage of already imposed sentences.
This chapter re-examines the roots of the fundamental human right to not being subjected to (grossly) disproportionate punishment. It does so in order to demonstrate that the right should be interpreted to take into account terminal illness of the offender and that it should be observed not only at the imposition stage, but also at the execution stage of already imposed sentences.
Collateral consequences (CCs) of criminal convictions such as disenfranchisement, occupational restrictions, exclusions from public housing, and loss of welfare benefits…
Collateral consequences (CCs) of criminal convictions such as disenfranchisement, occupational restrictions, exclusions from public housing, and loss of welfare benefits represent one of the salient yet hidden features of the contemporary American penal state. This chapter explores, from a comparative and historical perspective, the rise of the many indirect “regulatory” sanctions flowing from a conviction and discusses some of the unique challenges they pose for legal and policy reform. US jurisprudence and policies are contrasted with the more stringent approach adopted by European legal systems and the European Court of Human Rights (ECtHR) in safeguarding the often blurred line between criminal punishments and formally civil sanctions. The aim of this chapter is twofold: (1) to contribute to a better understanding of the overreliance of the US criminal justice systems on CCs as a device of social exclusion and control, and (2) to put forward constructive and viable reform proposals aimed at reinventing the role and operation of collateral restrictions flowing from criminal convictions.
Is the death penalty dying? This autobiographical essay offers observations on the application of capital punishment in three very different legal jurisdictions at three…
Is the death penalty dying? This autobiographical essay offers observations on the application of capital punishment in three very different legal jurisdictions at three different time periods when – partially by happenstance and partially by design – she was a homicide researcher, a participant and an observer of profound changes in the jurisdiction's application of the death penalty.
In the dark days of the 1980s and 1990s, the abolition of capital punishment was virtually unthinkable. However, a new form of abolitionism – which I call Rule of Law abolitionism – has raised the hopes of death penalty opponents. In this chapter, I elucidate the logic of the Rule of Law abolitionist argument, distinguishing it from its more familiar doctrinal and moral variants. I then assess its strengths and weaknesses. On the basis of this critique, I indicate the route Rule of Law abolitionism must travel to bring about the demise of the death penalty.
Are people more or less likely to use their power if they have high social status? This chapter discusses how having status affects the use of power by those in positions…
Are people more or less likely to use their power if they have high social status? This chapter discusses how having status affects the use of power by those in positions of power in exchange relations or small groups. Although status and power are typically assumed to be mutually reinforcing, there is growing recognition that having status may actually inhibit the use of power under certain conditions.
I review relevant research findings and consider three variables in particular that may moderate the effects of status on the use of power: legitimacy of status, achieved versus ascribed status, and individualist versus collectivist cultures.
While status and power are close correlates, there is growing recognition – particularly in organizational psychology – that, under certain conditions, having status may inhibit the use of power or that lacking status increases power use. These studies shed new light on how status interacts with power in hierarchical groups and challenge the pervasive view of power and status as mutually reinforcing forces that perpetuate inequalities. Understanding more precisely when and why status and power have convergent or divergent effects on power use is an important task for scholars of group processes.
The possibility that status and power can have distinct consequences, let alone opposite effects, presents an intriguing opportunity for scholars of group processes to rethink and extend our understanding of social hierarchies in a new light.
This article seeks to recover and uncover the non-utilitarian excess (jouissance) in crime and punishment since Kant. Jouissance is sharply contrasted with Nietzsche’s…
This article seeks to recover and uncover the non-utilitarian excess (jouissance) in crime and punishment since Kant. Jouissance is sharply contrasted with Nietzsche’s account of ressentiment. The latter is analyzed as the predominant sensation of our penal system which until today structures the subjects and institutions of punishment from within. Jouissance, on the other hand, is obscured in philosophies of punishment that attempt to account for the will to punish but ultimately fail to cover over the excess that constitutes penal theories and practices. Whether it is visible in Kant’s punitive fervor, in the exploration of perversion in de Sade and E. A. Poe, in theories of deterrence and prevention or punitive convictions in our contemporary legal culture, Freud’s discovery of a realm beyond the pleasures principle remains crucial for the understanding of the motives for crime and punishment. The essay concludes with a discussion of Nietzsche and his exploration of the ramifications of recognizing the role of new affects in crime and punishment.
How can philosophers contribute to the resolution of the current prison crisis in the United States, and what sorts of philosophical work should activists make use of in…
How can philosophers contribute to the resolution of the current prison crisis in the United States, and what sorts of philosophical work should activists make use of in their efforts to address that crisis? This paper examines two periods of prison reform in the 20th century, to indicate the problematic role that traditional theories of the moral justification of punishment have had in the history of reform effects have played. I argue that moral theories of punishment are not the best vehicle for addressing the prison crisis; the approaches suggested by critical social theory are more promising.