Mass Incarceration and the Theory of Punishment

Abstract

A popular form of retributivism insists that the permissibility of punishment is dependent solely upon the rights of the parties, with the social costs or benefits of a system of punishment relegated at best to a supporting role in justifying punishment. This chapter explains why theories of that form—despite their current popularity—cannot explain the moral judgment that the United States currently incarcerates too many people. Most commentators, including proponents of this type of theory, are inclined to believe that the United States does incarcerate too many people—that a policy of “mass incarceration” is unjustified. However, mass incarceration represents a failure of social policy, and is not readily analyzed in terms of the morality of individual transactions. The chapter concludes by briefly sketching how the political ideal of anti-deference might be brought to bear on the question of mass incarceration.