Preserving the Good Elements in Punishment and Avoiding a Purely Therapeutic Approach: An Outline

Abstract

The question is how properly to constrain the state’s use of violence to control crime. My argument here starts from the assumption that there is no moral responsibility for action, that retribution is not justified, and that as a consequence no one deserves to be punished. At the same time I want to avoid the conclusion that Pereboom and others believe follows from those assumptions, that the only justifiable alternative for a criminal justice system is a forward-looking preventive approach focused on danger, one that depends upon therapy when it works and preventive detention when it does not. There is something important about punishment, something that has to be preserved in a decent society. I think, for reasons discussed in the work of thinkers like Herbert Morris and C.S. Lewis, that something very much like punishment, what punishment would be without retribution, is called for. Still, it isn’t punishment itself that has to be preserved; I am persuaded that punishment just is retribution, and if retribution is not justified then punishment is not justified. The project, then, will be to find something that preserves what is good about punishment without entangling it with the notions of retribution and desert. What follows is an outline of the project.