Richard Lippke

Mixed theories of legal punishment treat both crime reduction and retributive concerns as irreducibly important and so worthy of inclusion in a single justificatory framework. Yet crime reduction and retributive approaches employ different assumptions about the necessary characteristics of those liable to punishment. Retributive accounts of legal punishment require offenders to be more responsive to moral considerations than do crime reduction accounts. The tensions these different assumptions create are explored in the mixed theories of John Rawls, H. L. A. Hart, and Andrew von Hirsch. It is argued that none of these theories successfully resolve the tensions. The prospects for resolving them are then discussed

The question addressed here is whether evidence concerning defendants' past criminal records should be introduced at their trials because such evidence reveals their character and thus reveals whether they are the kinds of persons likely to have committed the crimes with which they are currently charged. I strongly caution against the introduction of such evidence for a number of reasons. First, the link between defendants' past criminal records and claims about their standing dispositions to think and act is tenuous, at best. Second, noncharacter, or trace, evidence should have primacy in determining the guilt or innocence of defendants. Third, character evidence will vary in its freshness and specificity. Other things being equal, only relatively fresh and specific character evidence has probative value. Moreover, such evidence will have greater probative value in criminal cases where the issue before the court is whether a crime has been committed than in cases where the issue is whether it was the defendant who committed the crime. Finally, we might be more sanguine about the introduction of fresh and specific character evidence under conditions likely to work against its misuse or misinterpretation. However, the relevant conditions may not often be satisfied in the real world of criminal trials and defendants.

abstract Supermax prisons subject inmates to extreme isolation and sensory deprivation for extended periods of time. Crime reduction and retributive arguments in favour of supermax confinement are elaborated. Both types of arguments are shown to falter once the logic of the two approaches to the justification of legal punishment is made clear and evidence about the effects of supermax confinement on inmates is considered. It is also argued that many criminal offenders suffer from defects in their capacities for morally responsible action, lack sufficient opportunities to remain law‐abiding, or are understandably alienated from society and the prison regime. The implications of this more realistic picture of offenders for supermax confinement are then explored briefly

The starting frame with which jurors begin trials and the approach which they should take toward the presentation of evidence by the prosecution and defense are distinguished. A robust interpretation of the starting frame, according to which jurors should begin trials by presuming the material innocence of defendants, is defended. Alternative starting frames which are less defendant-friendly are shown to cohere less well with the notion that criminal trials should constitute stern tests of the government's case against those it has charged with crimes. The intuitive case for the robust presumption of innocence is supplemented with empirical evidence concerning the psychology of belief formation and preservation. Various objections to the proposed starting frame are addressed

In what ways is the conduct of prosecutors constrained by the presumption of innocence? To address this question, I first develop an account of the presumption in the trial context, according to which it is a vital element in a moral assurance procedure for the justified infliction of legal punishment. Jurors must presume the factual innocence of defendants at the outset of trials and then be convinced beyond a reasonable doubt by the government’s evidence before they convict defendants. Prosecutors’ responsibilities to promote the integrity of this moral assurance procedure are then divided into pre-trial, during-trial, and post-trial phases. Since most charge adjudication is effected through plea bargaining, the ways in which plea procedures must be modified to conform to this moral assurance procedure, and thus honor the presumption of innocence, are also discussed

Very few scholars discuss the moral basis of the right of persons accused of crimes to be supplied with attorneys if they cannot afford them. More discussion of the topic is needed, in particular because political theorists who prefer a minimal state deny that indigent persons have such a moral right. This article addresses their contentions by developing three arguments for supplying poor persons accused of crimes with defense attorneys. First, doing so will prevent state officials from becoming emboldened in their dealings with the poor, such that they might come to pose a threat to the non-poor. Second, poor persons who believe that the state does not treat them fairly will have reduced incentives to abide by the law, which will, in turn, increase the cost of the minimal state. Third, the better off should show solidarity with the poor in demanding that the minimal state honor all citizens’ rights to life, liberty, and property. Crucial to these arguments is the claim that a right of indigent defense is unlike other welfare rights in that securing it protects other basic moral rights that minimal statists acknowledge.

Negative retributivism is the view that though the primary justifying aim of legal punishment is the reduction of crime, the state's efforts to do so are subject to side-constraints that forbid punishment of the innocent and disproportionate punishment of the guilty. I contend that insufficient attention has been paid to what the side-constraints commit us to in constructing a theory of legal punishment, even one primarily oriented toward reducing crime. Specifically, I argue that the side-constraints limit the kinds of actions that are appropriately criminalised, the kinds of beings who are appropriately liable to legal punishment, and the absolute and comparative severity of sanctions. I also argue that a third retributive constraint is needed, one which I term a ‘non-degradation constraint’. According to this third constraint, in our efforts to reduce crime, we must avoid treating offenders as non-moral beings and ensure that punishment does not atrophy or erode the complex capacity for moral responsibility. When this third constraint is combined with the persuasive instrumental case for promoting the moral responsiveness of offenders, the result is an approach to crime reduction that is quite different from ones which emphasise general deterrence and incapacitation. In the closing section, I broach the question whether negative retributivism has been appropriately characterised in the literature on legal punishment

Two recent discussions concerning punishment of the socially deprived reach conflicting conclusions. Andrew von Hirsch and Andrew Ashworth argue that we should sympathize with the predicament of the poor and therefore mitigate their sentences. Peter Chau disputes von Hirsch and Ashworth’s conclusion, contending that having to face strong temptations is not an appropriate ground for reducing anyone’s punishment for their crimes. I argue that neither von Hirsch and Ashworth’s account nor Chau’s critique of it is persuasive. I then take up the challenge of showing why social deprivation renders punishment problematic. I contend that it establishes a perverse incentive structure that is persistent and powerful, requiring the disadvantaged to exercise self-control on an ongoing basis. Repeated acts of self-control are difficult, especially for youths whose skills at it are not yet fully developed. Also, in a variety of more and less subtle ways, social deprivation reduces the incentives for self-control and may work to stunt its development. In closing, I briefly consider the options for responding to the crimes of the chronically disadvantaged.

Retributive approaches to the justification of legal punishment are often thought to place exacting and unattractive demands on state officials, requiring them to expend scarce public resources on apprehending and punishing all offenders strictly in accordance with their criminal ill deserts. Against this caricature of the theory, I argue that retributivists can urge parsimony in the use of punishment. After clarifying what parsimony consists in, I show how retributivists can urge reductions in the use of punishment in order to conserve scarce resources for other valuable social purposes, minimize the foreseeable and adverse effects of legal punishment on the innocent, and accommodate the fact that existing societies fail in numerous ways to satisfy the conditions that make retributive punishment fully justified.

After surveying the many practical difficulties sentencing judges must confront in determining whether the offenders who appear before them are genuinely remorseful, recent dialogical accounts of remorse-based sentence reductions are examined. These accounts depend on a morally communicative approach to legal punishment’s justification and seem to confine such communication to offenders. They contend that, in order to respect remorseful offenders, sentencing judges must reduce their sentences. Why they should do so, by how much they should do so, and whether they should do so when the individuals being sentenced are recidivists, are among the questions discussed. Also examined is whether remorse should be a prominent mitigating factor in sentencing or only one among many aggravating or mitigating factors. In conclusion, it is suggested that existing sentencing practices might make more sense if we suppose judges to be looking for things other than genuine remorse in the individuals who appear before them.

The pre-trial detention of individuals charged with crimes is viewed by many legal scholars as problematic. Standard arguments against it are that it constitutes legal punishment of individuals not yet convicted of crimes, violates the presumption of innocence, and rests on dubious predictions of future crime. I defend modified and restrained forms of pre-trial detention. I argue that pre-trial detention could be made very different than imprisonment, should be governed by strict criteria, and is warranted, when the evidence of danger is convincing. I contend that the presumption of innocence does not preclude us from doing many other things to criminal suspects and defendants that imply their guilt. Finally, I dispute arguments designed to show that pre-trial detention can be justified to prevent absconding or interferences with the course of justice, but not to prevent other, and sometimes much more serious, offenses

Those found liable for negligently injuring others are required to compensate them, but current practices permit most tort feasors to spread the costs of their liability burdens through the purchase of insurance. Those found guilty of criminal offences, however, are not allowed to shift the burdens of their sentences onto others. Yet the reasons for not allowing criminal offenders to shift such burdens – harm reduction, retribution, and moral education – also appear to retain some force in relation to negligent tort feasors. Arguments for and against limiting the abilities of negligent tort feasors to spread such costs, thus imposing a penalty on them, are discussed. The conclusion reached is that further consideration of such a penalty is warranted.

The criminal law requires citizens to demonstrate ‘reasonable firmness’ in the face of temptations to violate its provisions. But what if individuals repeatedly face powerful temptations to offend, are not responsible for being in such predicaments, cannot escape them, and cannot alter or expunge their desires because they count as urgent on any plausible account of a decent human life? Should the criminal law make some sort of allowance for the chronically tempted? I argue that it should, because individuals in such predicaments will have to exhibit exemplary if not extraordinary self-control. Intuitively, such self-control is more than the criminal law can reasonably demand of individuals. Also, there is empirical evidence that repeated acts of self-control wear down individuals. Numerous objections to the position I defend are addressed and its implications for the criminal law are briefly explored

The dominant approach to the analysis of issues in business ethics consists in the articulation and use of a set of mid-level moral principles. This approach is geared to business practitioners who are not interested in the difficult problems of moral and political theory. I argue that this "practitioner model" is philosophically suspect. I show how the theoretical frameworks prominent business ethicists employ are insufficiently developed. I also show how many of their analyses presuppose substantive views about issues of social justice which they rarely defend or acknowledge. Since no neutral position on these issues is available, I argue that the only alternative is to address the problems such issue's raise for the analysis of institutions and the conduct of persons acting under those institutions. I offer suggestions about how we can develop a more philosophically defensible approach to business ethics.

While many countries are following the lead of the United States in making insider trading illegal, its moral status is still controversial. I summarise the scholarly debate over the fairness of insider trading and lay bare the assumptions about fairness implicit in that debate. I focus on the question whether those assumptions can be defended independently of a more comprehensive theory of social justice. Current analyses presuppose that we can intelligently discuss what the social rules regarding insider trading should be while ignoring questions about the broader principles of justice that should be adopted and the extent to which existing institutions realise those principles. I argue that such questions must be addressed. I then employ an egalitarian conception of social justice to analyse insider trading. I thereby illustrate how a more systematic approach, grounded in a comprehensive theory of justice, transforms the debate about the fairness of insider trading.

Criminal defendants in many countries are faced with a dilemma: If they waive their right to trial and plead guilty, they typically receive charge or sentence reductions in exchange for having done so. If they exercise their right to trial and are found guilty, they often receive stiffer sanctions than if they had pled guilty. I characterize the former as ‘waiver rewards’ and the latter as ‘non-waiver penalties.’ After clarifying the two and considering the relation between them, I briefly explicate the grounds for a moral right to trial. I then assess the defensibility of such rewards and penalties. In addition to considering whether waiver rewards and non-waiver penalties serve the aims of legal punishment, I address the three main arguments for permitting them. The first suggests that defendants willing to plead display more remorse for their crimes and thus are deserving of lighter sentences. The second defends waiver rewards and non-waiver penalties in cases where prosecutors are alleged to know that defendants are guilty but face problems establishing their guilt at trial. The third holds that guilty defendants who are willing to plead conserve scarce state resources and should be rewarded for it, whereas those unwilling to plead squander such resources and should be penalized accordingly. I contend that none of these arguments provides persuasive grounds for waiver rewards or non-waiver penalties, even on the assumption that we can distinguish those defendants who should waive their right to trial from those who should not. This conclusion presents a fundamental challenge to contemporary plea bargaining practices

What are termed the ‘collateral legal consequences’ (or CLCs) of criminal conviction have been defended in a variety of ways. The focus in this article is on efforts to justify the burdens and restrictions they involve as nonpenal measures designed to secure public safety. Zachary Hoskins' careful defense of such public-safety CLCs is utilized as a point of departure. Although it is granted that such measures might be defensible, the many complications and problems of ensuring that they do not amount to further legal punishment and are kept within reasonable bounds are explored. I argue that the state is unlikely to deploy such public safety measures wisely and with sufficient restraint.