Penal Theory Research Articles

Retributivism and Victim Compensation

Given the desert-centric character of retributive penal theory, it seems odd that its supporters rarely discuss the undeserved losses and suffering of crime victims and the state’s role in responding to them. This asymmetry in the desert-focus of retributive penal theory is examined and the likely arguments in support of it are found wanting. Particular attention is paid to the claim that offenders, rather than the state, should supply compensation to victims. Also, standard retributive accounts of why the deserving should be punished are shown to support state-supplied victim compensation.

Dolus Compositus in the Light of Continental Classicism

As a result of penal reform (1999-2001) Georgian legislator redefined its concept of dolus directus, based on a view presented in own penal theory two decades ago. By reducing the concept to its intellectual component ([precise] knowledge of illicit effect) penal legislation introduced a new kind of guilty behavior – dolus directus intellectualis as dolus directus of the second degree (theoretical description). On the other hand: Through adding intellectual segment of dolus indirectus to the voluntative one of dolus directus here emerged a further kind of guilty behavior, when person aspires an unlawful damage, but for sees it just as possible effect of his externalized intention – dolus directus voluntatis as dolus directus of the first degree (theoretical description). Authors prove that these legislative transformations do not meet basic requirements of classical continental guilt scheme and confront both innovations with a new version of dolus compositus (1998).

Review of Hannah Maslen: Remorse, Penal Theory and Sentencing

Review of Hannah Maslen: Remorse, Penal Theory and Sentencing

Retributivism and the Moral Enhancement of Criminals Through Brain Interventions

AbstractThis chapter will focus on the biomedical moral enhancement of offenders – the idea that we could modify offenders’ brains in order to reduce the likelihood that they would engage in immoral, criminal behaviour. Discussions of the permissibility of using biomedical means to address criminal behaviour typically analyse the issues from the perspective of medical ethics, rather than penal theory. However, recently certain theorists have discussed whether brain interventions could be legitimately used for punitive (as opposed to purely therapeutic) purposes. For instance, Jesper Ryberg argues (although he himself is not a retributivist) that there is nothing to prevent retributivists from endorsing brain interventions as a legitimate form of retributive punishment. Legal academics have not yet paid sufficient attention to whether this proposal would be compatible with international human rights law, nor have retributivist philosophers discussed whether their favoured penal theories have the conceptual resources to explain why brain interventions would not be an appropriate method of punishment. This chapter considers whether there is any indication that these interventions are being used at present for punitive purposes and whether this would violate the European Convention on Human Rights. It examines different versions of retributivism and considers which theory is in the best position to challenge the use of brain interventions as a form of punishment. Finally, it considers whether offering these interventions as an alternative to punishment would violate principles of proportionality.

Retributarianism: A New Individualization of Punishment

This article seeks to reveal, conceptualize, and analyze a trend in the development of the retributive theory of punishment since the beginning of the 21st century. We term this trend “retributarianism.” It is reflected in the emergence of retributive approaches that through expanding the concepts of censure and culpability extend the relevant time-frame for assessing the deserved punishment beyond the sentencing moment. These retributarian approaches are characterized by the individualization of retributivism. On one hand, retributarianism shares with classic retributivism the rhetoric of justice, a focus on the moral evaluation of the severity of the offense, and the primary importance ascribed to maintaining proportionality. On the other hand, it shares with utilitarianism the possibility of taking into account, in addition to the severity of the offense, the offender’s personal circumstances, with a future-oriented perspective that also considers developments subsequent to the commission of the offense. This article analyzes the emergence of retributarianism, suggests possible explanations for its development, and assesses its possible implications for penal theory and policy.

Hope, harmony and humanity: creating a positive social climate in a democratic therapeutic community prison and the implications for penal practice

PurposeThere has been growing attention given to the concept of social climate as an element of prison practice. Research has indicated that more positive social climates can improve safety, psychological well-being, quality of life and contribute towards reduced reoffending. The purpose of this paper is to consider how the more positive social climates found in democratic therapeutic communities are constructed and how these practices can be replicated in other settings.Design/methodology/approachThis paper adopts a reflective practice approach. The intention is to look back at the concept of social climate in prisons and in particular within a prison-based democratic therapeutic community (DTC); draw upon research and theory in order to critically evaluate the nature and effectiveness of that social climate, and; draw wider lessons about the nurturing and maintenance of social climates that may have broader relevance in prisons.FindingsIt is concluded that understanding and managing social climate is an essential aspect of improving the safety and effectiveness of prisons. Developing practices that enhance social climate requires looking beyond mainstream prison practices, towards niches such as specialist units and prisons, including DTCs and other therapeutic communities, and psychologically informed environments, as well as looking at practices in other settings including forensic mental health. Taking this wider perspective can be source of ideas and practice that could inform a profound culture change.Originality/valueThe paper offers an attempt to understand the distinct practices that create a more positive social climate in DTCs and consider how elements of this could be exported to other prisons. This has implications for both penal theory and practice.

Book Review: Remorse, Penal Theory and Sentencing

Book Review: Remorse, Penal Theory and Sentencing

Remorse, Penal Theory and SentencingHannahMaslen, 2015Oxford and Portland, OR, Hart Publishingxvi212 pp. £40.00 (hb)

Remorse, Penal Theory and SentencingHannahMaslen, 2015Oxford and Portland, OR, Hart Publishingxvi212 pp. £40.00 (hb)

Some Aspects of Penal Law Theory

Some Aspects of Penal Law Theory

Imprisonment and Political Equality

In this paper I outline the logical relations between political equality and the practice of imprisonment by the state. I identify the very limited conditions in which the citizen-rulers of a democratic state give it the authority to imprison them, and the still more limited conditions in which a democratic state has good reason to imprison its citizen-rulers. I further argue that this reason to imprison becomes less significant the more that formal political equality leads to substantive equality of political influence among citizens. The more democratic is the state, the more it will substitute restorative justice methods for imprisonment. I demonstrate that this democratic theory of punishment can explain recent huge rises in imprisonment rates in the US and the UK as one consequence of the retreat of political equality in those countries over the same period. I conclude by considering in turn the position of non-citizens in a penal regime of political equality; the persistent social injustice of democratic state punishment; and the inherent abolitionism of a penal theory based on a serious commitment to political equality.

The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems.

The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory’s normative and practical commitment to limiting punishment. Theories of punishment combining desert-based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state’s power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning-making, and institution-building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.

The police and punishment: Understanding the pains of policing

This article argues that police studies should draw on the sociology of punishment to better understand state pain-delivery. Whereas penal theorists commonly assess the pain and punishment of inmates in relation to wider social sentiments, police theory has yet to regard police violence and harm in the same fashion. As a result, police scholars often fail to address why the damage caused by public constabularies, even when widely publicized, is accommodated and accepted. Adapting the idea of ‘punitiveness’ from penal theory allows some explanation of how the public views injury and suffering caused by the police by illuminating the emotions and sentiments their actions generate.

Bridging the Gap between Criminological Theory and Penal Theory within the International Criminal Justice System

The main objective of this article is to put forward a critical analysis of the emergent international criminal justice system, epitomized by the creation of the permanent International Criminal Court (icc). Such an endeavour is warranted on the assertion that international criminal justice scholarship has entered into a ‘reflective’ phase, the hallmark of which lies in the re-evaluation of the institutions of international criminal law in the light of the distinctive traits of international criminality derived from the combination of the criminological theory of state crime and the rising theory of international crime in the domain of international criminal law. In this context, the article summarizes the basic points and the epistemological premises of the criminological theory of state crime, while seeks to delimit the subject matter by alluding to the concept of core international crimes arising from the normative system of the icc. The core aim of such a combined approach is not to downplay the existing differences between the criminological concept of state crime and the penal concept of core international crimes, but to highlight common points in order to draw tentative conclusions and make some preliminary suggestions from a criminal policy perspective.

Beyond Mass Incarceration?

Beyond Mass Incarceration?

Fear of Fever and the Limits of the Enlightenment

ABSTRACTHistorians have exaggerated considerably the part played by enlightenment ideas in the birth of the modern prison in England. Analysis of ground-level reform activity in late eighteenth-century England shows that enlightenment penal theory failed to convince local officials that penal reforms should be adopted. Responding to the economic, political and cultural context in which they operated, reform-minded officials were required to abandon enlightenment discourse and adopt instead actively anti-enlightenment arguments and language. Only once reform was strategically repackaged as a solution to the lurking, hidden threat that was the ‘fever’ were recognisably modern prisons constructed in England.

Why Globalisation Doesn’t Spell Convergence: Models of Institutional Variation and the Comparative Political Economy of Punishment

This paper argues that contemporary patterns of punishment can only be fully understood through comparative analysis, and makes in particular a case for a political – economic approach based on the analysis of comparative institutional advantage of differently structured systems. This comparative advantage explains why, notwithstanding a measure of globalization and policy transfer in criminal justice, longstanding differences in the penal practices of different countries persist. The paper also examines the distrust of model-building in contemporary social theories of punishment, acknowledging that this distrust proceeds from some legitimate and eminently understandable concerns: but arguing that it is nonetheless obstructive to the capacity of comparative research to achieve its full explanatory potential. The second part of the paper examines the objections to typology or model-building in penal theory by drawing on the case studies of New Zealand and the USA – countries which on the face of it present difficulties for the model sketched in The Prisoners’ Dilemma (2008). It argues that the objections to model-building may be more readily overcome than is usually recognized; and that the apparently different enterprises of model-building or theoretical generalization on the one hand and detailed empirical research on the other are intimately linked in a number of ways. By moving between these complementary methods, moving back and forth between model and data, it is possible to revise and refine models in the light of further findings. And this in turn will open up new and fruitful fields of local empirical inquiry for criminologists and others. .

Punishment: Political, not Moral

Alan Brudner’s Punishment and Freedom is a remarkable contribution to liberal and penal theory offering a well-argued and compelling theory of “legal retributivism.” This theory is an improved account of retributivism as alternative retributivist theories are thought to incorporate a problematic view of morality which only legal retributivism can overcome. While I agree with much of Brudner’s Hegelian-inspired account, I believe that it could be even further protected from problems facing retributivist theories more generally if he took greater account of insights into penal theory offered by British Hegelians. This article will explain what these insights are and how they might usefully inform Brudner’s legal retributivism and further increase its attractiveness.

Punishment: Political, Not Moral

Alan Brudner’s Punishment and Freedom is a remarkable contribution to liberal and penal theory offering a well-argued and compelling theory of “legal retributivism.” This theory is an improved account of retributivism as alternative retributivist theories are thought to incorporate a problematic view of morality which only legal retributivism can overcome. While I agree with much of Brudner’s Hegelian-inspired account, I believe that it could be even further protected from problems facing retributivist theories more generally if he took greater account of insights into penal theory offered by British Hegelians. This article will explain what these insights are and how they might usefully inform Brudner’s legal retributivism and further increase its attractiveness.

Alternatives to the Prison

This paper examines the problem of alternatives to the prison in order to problematize the prison as an institution, as a form of punishment and as a system for promoting respect for the law. It argues that the mechanisms that were central to the prison during the 19th century, such as the practice of penitence as a principle of rehabilitation, the family as agent of correction, or as agent of legality, and labour as a fundamental instrument for punishment, still operate today, if in altered forms, in both the conventional and alternatives types of prison. The prison has been a factory for producing criminals; this production is not a mark of its failure but of its success. Prison manages control over illegalities by means of a whole set of apparatuses that manage their reorganization, redistributing them according to an economy of illegalisms. It may well be that changes in the economy and in the mechanisms for regulating populations mean that the carceral functions of the prison are today being disseminated at the level of the social body, so that they would now operate beyond the space of the prison through multiple instances of control, surveillance, normalization and re-socialization. The question of the prison cannot be resolved or even posed in terms of a simple penal theory. Neither can it be posed in tems of a psychology or sociology of crime. The question of the role and possible disappearance of the prison can only be posed in terms of an economy and a politics, that is, a political economy of illegalisms.

Girardin: abolicionismo entre el segundo imperio y la tercera república francesa

The article tries to show the current criminological thinking of the French journalist Emile Girardin. The author, although originating in the nineteenth century, develops a thesis penal abolitionist character with a high degree of actuality, not only with regard to the existing penal theory, contrary to state punitive power, but also with respect to a State development Previdente necessary for the gradual abolition of penalties.