Reality-Challenged Philosophies of Punishment

Abstract

This paper¸ derived from the 2012 Barrock Lecture delivered at Marquette University Law School, explores the radical disconnection between the contemporary jurisprudence of punishment in the American academy and the raw facts of American imprisonment, the condition generally decried as “mass incarceration.” Most obviously, retributivism, which has been the dominant purported rationale for American punishment over the last 40 years and also the dominant force modern philosophical debates about the purposes of punishment, pays virtually no heed to the anomaly that we have the highest imprisonment rate in the nation’s history and arguably the highest in the world. More specifically, while relying on assumptions about moral desert and proportionate penalty, retributivism ignores that our system takes its heaviest toll on, and arguably worsens the social and economic condition of, poor minority men of limited education, and that it imposes a lifetime economic penalty far behind the loss of liberty and income during the time of incarceration. Thus, I pose the general question of in what sense philosophies of punishment should be “accountable” for the facts of the real world. Did academic retributivism influence the rise of political retributivism as a force behind our increased reliance on prison? Can retributivism justify the arguably disproportionate penalties imposed on prisoners, once we take lifetime economic disruption and wider metastatic effects into account? Or should retributivists criticize modern imprisonment precisely because it does not survive retributivist scrutiny, or, in light of those facts, does it need to revise its notions of desert and penalty? In addition, I ask whether deterrence theory or incapacitation theory can explain or justify the state of imprisonment, and whether rehabilitation is a meaningful concept in a world where the experience of imprisonment probably does nothing to reduce future crime except by incapacitating inmates until they are too old to be dangerous. Overall, I argue that philosophies of punishment must engage in some dialectical self-scrutiny at a time of our incarceration anomaly.