Douglas Husak

Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed retributivist, I find these allegations to be troubling and unwarranted. The point of this paper is to take steps to rebut them. I begin by making four conceptual points about retributivism. If I am correct, retributivism comes in countless flavors, and the particular variety to which I am most attracted can be applied to show why some punishments should be less severe than those presently imposed. Next I argue that many persons deserve less punishment than our legal system currently inflicts. Reflection about whether perpetrators should be afforded a complete or partial defense reveals retributivism to be less punitive than conventional wisdom would suggest.

Efforts to apply the principle of proportionality to criminal sentences are notoriously problematic. But even though they are daunting, only a few legal philosophers believe we should give up trying to do so. Perhaps we can make progress overcoming some of the many legal difficulties by attending to how the principle is applied in non-legal contexts—that is, in contexts I call personal life. Proportionality, I believe, is an attractive principle in penal sentencing because it is an attractive principle in ordinary situations in which persons are sanctioned for wrongdoing. I briefly mention several familiar non-legal contexts in which sanctions have recently been imposed on celebrities or public figures for real or perceived wrongdoing. My hope is that sensitivity to how the principle of proportionality is interpreted in these contexts might facilitate efforts to apply this principle to sentencing domains. At first glance, proportionality as applied in non-legal contexts appears to differ from its penal analogue. I describe some of these alleged differences. Among the foremost is that judgments of proportionality in personal life often respond to how the transgressor has behaved apart from the particular incident that has attracted media attention. Penal sanctions, by contrast, are said to be imposed only for the particular crime charged. I argue that this difference is more apparent than real. I conclude that we can reach a few modest insights about how to apply the principle of proportionality in criminal sentencing by attending to its counterpart in personal life.

Reflections on Crime and Culpability seeks to elaborate, extend, and occasionally qualify the insights reached by Larry Alexander and Kim Ferzan in their influential prior collaboration, Crime and Culpability. They deftly explore any number of new issue that all criminal theorists should be encouraged to address. In my essay, I discuss and challenge their positions on omissions as well as on moral ignorance. Their treatment of the latter issue is a clear improvement over that in their earlier book. But their views on omissions suggest to me that they should have had reservations about some of the most fundamental claims of their overarching theory.

Under what circumstances should ignorance that someone is violating a moral or criminal rule preclude or lessen his moral responsibility and/or penal liability? In this chapter, I first construct a schema or framework for how to think about this issue. Quite a bit of confusion and uncertainty, I am sure, derives from a failure to understand exactly what this question is asking. I next defend some substantive views about how this question should be answered. If my defense is cogent, I conclude that a person who is ignorant that his conduct violates a moral or legal rule is almost never as blameworthy and/or deserving of as much punishment as someone who is fully aware that his behavior is wrongful and/or criminal. The best general accounts of responsibility and blameworthiness are far more receptive than positive law to allowing ignorance of wrongdoing as a complete or partial excuse.

I describe how our understanding of some of the central principles long held dear by most criminal theorists may have to be interpreted in light of the need to devise lenient responses for low-level offenders. Several of the most plausible suggestions for how to deal with minor infractions force us to take seriously some ideas that many legal philosophers have tended to resist elsewhere. I briefly touch upon four topics: whether informal can substitute for or count against the appropriate state sanction; the significance of repeat offending for sentencing; whether punishment for culpable public wrongdoing has intrinsic value; and the scope of police powers in a liberal democratic state. The context for this discussion is R. A. Duff’s insightful examination of whether and under what conditions we should criminalize a public wrong or respond to it in some other manner.

I will focus on Tadros’s general views about criminalization and how he contends philosophers should not think about it. Misguided approaches, according to Tadros, include attempts to identify principles that constrain the scope of the criminal law, as well as efforts to establish that given considerations constitute reasons for or against the use of the penal sanction. In what follows, I begin with a few general remarks about the connections between Tadros’s treatment of criminal justice and the real world. Next, I try to salvage the viability of the two approaches to criminalization he rejects. Finally, I turn a skeptical eye to what I take to be the most radical thesis in Wrongs and Crimes: the state should occasionally criminalize conduct that is not wrongful.

I respond to Michael Zimmerman and Gideon Yaffe, both of whom have written thoughtful and constructive criticisms of my “Ignorance of Law”. Zimmerman believes I do not go far enough in exculpating morally ignorant wrongdoers; he accuses me of lacking the courage of my convictions in allowing exceptions for reckless wrongdoers and for willfully ignorant wrongdoers. Yaffe, by contrast, thinks I rely on a defective foundation of moral blameworthiness. He proposes an alternative account he alleges to conform more closely to common sense. In responding to both critics, I emphasize that our points of agreement may be more significant than our disagreements.

Medical ethicists debate whether or not the moral assessment of cases of euthanasia should depend on whether the patient is 'killed' or 'allowed to die'. The usual presupposition is that a clear distinction between killing and letting die can be drawn so that this substantive question is not begged. I contend that the categorisation of cases of instances of killing rather than as instances of letting die depends in part on a prior moral assessment of the case. Hence is it trivially rather than substantively true that the distinction has moral significance. But even if a morally neutral (ie non-question begging) distinction could be drawn, its application to the euthanasia controversy is problematic. I illustrate the difficulties of employing this distinction to reach moral conclusions by critically discussing Philippa Foot's recent treatment of euthanasia. I conclude that even if an act of euthanasia is an instance of killing, and there exists a prima facie moral duty not to kill, and no more stringent duty overrides this duty, one still cannot determine such an act to be morally impermissible

A rational defense of the criminal law must provide a comprehensive theory of culpability. A comprehensive theory of culpability must resolve several difficult issues; in this article I will focus on only one. The general problem arises from the lack of a systematic account of relative culpability. An account of relative culpability would identify and defend a set of considerations to assess whether, why, under what circumstances, and to what extent persons who perform a criminal act with a given culpable state are more or less blameworthy than persons who perform that act with a different culpable state.

Offences and Defences is an outstanding collection of eleven of John Gardner's previously published papers in the philosophy of criminal law. I briefly examine his views on five central issues: his claims about basic responsibility and whether it should be construed as relational; his positions on agent neutrality; his arguments about whether moral and criminal wrongs are typically strict; his thoughts about the structure of defences, and, finally, what his account of rape reveals about the content of the harm principle

In this article I examine one condition a minimalist theory of criminalization might contain: the criminal law should be used only as a last resort. I discuss how this principle should be interpreted and the reasons we have to accept it. I conclude that a theory of criminalization should probably include the (appropriately construed) last resort principle. But this conclusion will prove disappointing to those who hope to employ this principle to bring about fundamental reform in the substantive criminal law. I argue that the last resort principle may not help to reverse the growth of the criminal law to any degree that could not be achieved more directly and less controversially by other principles that a theory of criminalization is generally thought to include. Unless we reject others parts of conventional wisdom about crime and punishment, the application of a last resort principle is unlikely to bring about sweeping changes that theorists might have anticipated

Gideon Yaffe is to be commended for beginning his exhaustive treatment by asking a surprisingly difficult question: Why punish attempts at all? He addresses this inquiry in the context of defending (what he calls) the transfer principle: “If a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” I begin by expressing a few reservations about the transfer principle itself. But my main point is that we are justified in punishing attempts only when and for a different reason than Yaffe provides. I argue that attempts are legitimately punished only when they raise the risk that a harm will actually occur. To overcome the problems my explanation encounters with factually impossible attempts, I suggest an account of risk that relies on ordinary language and possible worlds