Douglas Husak

This chapter begins with an argument nearly everyone will reject as unsound. The chapter rejects it too. What is far less obvious, however, is exactly what is wrong with the argument. Despite skeptical challenges from both sides, the chapter tentatively concludes that the best solution to this problem consists in construing some instances of behavior as a _course of conduct_ rather than as a discrete set of acts and omissions. When behavior consists in a course of conduct, it is a complex that consists in both acts and omissions. Attempts to pigeon-hole such behavior as either an act or an omission without regard to the complex in which both play a part are bound to produce philosophical distortion and normative confusion.

Kolber’s Punishment for the Greater Good solidifies his reputation as the most astute living critic of retributive theories of punishment. But his book does not even attempt to defend a consequentialist alternative. Instead, he hopes to evade crucial issues by focusing on a justification of incarceration rather than that of punishment. I question whether Kolber’s rationale for focusing on incarceration rather than punishment is persuasive. Whatever punishment is taken to be by a consequentialist—which I describe as quasi-punishment—it is certain to differ radically from familiar retributivist accounts. Because of Kolber’s professed agnosticism—his failure to tell us what punishment is—we remain unclear about the details of the practice that rival theories aspire to justify.

I present the following challenge to retributivists (including myself). I stipulate that retributivism is the claim that inflictions of deserved punishment produce intrinsic value. If this definition is accepted, it is curious that the academic writing of few if any retributivists express enthusiasm for punishing greater numbers of persons who commit serious crimes but are not apprehended. A great deal of intrinsic value could be added by increasing the clearance rates for serious offenses. In this paper I briefly explore five reasons that might explain and/or justify this reticence. Perhaps any value that is created by these punishments is too small to give rise to much concern. Or it is outweighed by competing disvalues. Or maybe efforts to increase existing rates of punishment would be too uncertain or difficult to implement. Or many of those we might seek to punish have viable excuses and are not blameworthy. Or perhaps the personal and political costs of broadening the net of penal liability are too great to incur among those committed to racial justice. Retributivists who are not eager to increase the number of deserving persons who are punished must choose from these five (or perhaps from other) options.

Legal and political philosophers (e.g., Scanlon, Schauser, etc.) typically regard speech as special in the sense that conduct that causes harm should be less subject to regulation if it involves speech than if it does not. Though speech is special in legal analysis, I argue that it should not be given comparable status in moral theory. I maintain that most limitations on state authority enacted on behalf of a moral principle of freedom of speech can be retained without supposing that speech is entitled to a degree of protection not afforded to (most) other forms of conduct. My argument questions some standard assumptions made by philosophers about the relationship between moral and legal principles.

Husak contends that the state should not abolish a police practice such as Stop Question and Frisk (SQF) simply because it has a disparate impact on racial minorities. The ultimate verdict on this practice depends on whether its advantages are sufficient to offset its costs—especially inasmuch as the crime-reduction effects of SQF tend to disproportionately benefit the very racial minorities who are subject to it. Husak reconstructs and responds to arguments of legal theorists who disagree with him, and seemingly believe that no practice implemented by legal officials who suffer from implicit racial biases can ever be justified.

In the United States today, the use or possession of many drugs is a criminal offense. Can these criminal laws be justified? What are the best reasons to punish or not to punish drug users? These are the fundamental issues debated in this book by two prominent philosophers of law. Douglas Husak argues in favor of drug decriminalization, by clarifying the meaning of crucial terms, such as legalize, decriminalize, and drugs; and by identifying the standards by which alternative drug policies should be assessed. He critically examines the reasons typically offered in favor of our current approach and explains why decriminalization is preferable. Peter de Marneffe argues against drug legalization, demonstrating why drug prohibition, especially the prohibition of heroin, is necessary to protect young people from self-destructive drug use. If the empirical assumptions of this argument are sound, he reasons, drug prohibition is perfectly compatible with our rights to liberty.

Among the most noteworthy and impressive aspects of A.P. Simester’s monumental Fundamentals of Criminal Law is its pervasive pluralism. Many philosophers of criminal law, I have frequently complained, are excessively monistic on a number of basic questions about which pluralism is the more defensible option. I fear, however, that Simester’s views are sometimes too pluralistic. In particular, he assigns five separate functions to mens rea, and advances the novel claim that “mens rea is not, uniquely or even predominately, about culpability.” He alleges that “the so-called ‘fault’ requirements plays an important role in mediating the scope of prohibitions.? My central objective is to challenge whether Simester is correct about whether mens rea has this alleged.

Husak makes a number of theoretical observations in favor of a general conception of sentencing that he calls sentencing pluralism. This framework is pluralistic in two different respects. In the first part of the chapter, he argues that the goals or objectives of a sentencing scheme are diverse and must draw from the insights supplied by various disciplines. Thus his framework embodies what he calls disciplinary pluralism. In the second part of the chapter, he argues that the sentence offenders deserve cannot be identified without taking account of factors that are not contained within the proportionality calculus. Thus Husak’s framework also embodies what he calls desert pluralism. A sentencing theory that fails to include these two kinds of pluralism is deficient.