Jami L. Anderson

Retributivists claim that those who deliberately and freely commit crimes deserve punishment proportionate to their crime. But Marx famously claimed that many criminals commit crimes because of social circumstances like abject poverty and therefore their punishment is unjust. ;I begin by outlining the retributivistic theory dominant in contemporary philosophical and legal literature, retributivism founded on social contractarianism. Such a theory has two strategies available to it to meet the Marxist's challenge: either claim that poverty denies persons the opportunity to enjoy benefits of social rules that justifies punishment or excuse the crimes by claiming that social conditions rendered the crime an unfree act, one failing to warrant punishment. I conclude that both strategies are unacceptable. The first rests on a serious misunderstanding of social contractarianism and both fail to take retributivism seriously enough. I then examine Hegel's theory of punishment, and my own development of that theory, as a viable alternative. I develop his justification for retributive punishment, namely that punishment "annuls crime". Finally I address Hegel's claim that in order for a crime to be annulled, members of that society must regard the punitive practices of their society as "valid." The "rabble", individuals alienated from their society, can only regard their punishment as "contingent". Hegel does not make it clear how social practices can have a meaning to some individuals, yet fail to have that meaning for others. I argue that in order for the social practice of punishment to function properly , members of that society must be properly socialized. This socialization process must include primarily the ongoing experience of interdependent, economic activities. A necessary feature of this socialization process is an internalization of the normative systems of one's society, of which punishment is an integral part. The rabble regard the norms of their society as shams and therefore necessarily regard their punishment as a sham. ;This Hegelian theory of retributivism explains why we are uneasy in punishing the rabble and argues compellingly that the punishment of all crimes is a necessary means to reforming society's injustices

What is so striking about Breaking Bad is how centrally impairment and disability feature in the lives of the characters of this series. It is unusual for a television series to cast characters with visible or invisible impairments. On the rare occasions that television shows do have characters with impairments, these characters serve no purpose other than to contribute to their ‘Otherness.’ Breaking Bad not only centralizes impairment, but impairment drives and sustains the story lines. I use three interrelated themes from Disability Scholarship to analyze Breaking Bad. The first theme, Bodily Control, is that good bodies are controlled bodies and that uncontrolled, messy bodies are frightening, bad bodies. Indeed, the messiness of impairment and disability is so bad, that impaired and disabled individuals are excluded or shut out or excluded from many areas of public life. The second theme, Normalcy, is that the effect of hiding away impairment, of attempting to conceal disability, is that society becomes defined by, and structured around, the concept of normalcy. Normalcy, being normal, attaining and maintaining normalcy, is the preoccupation of most in society. To fail to be normal, or to fall from what is considered to be normal, is a source of tremendous anxiety for most people. These two themes, Bodily Control and Normalcy are conceptually connected: impairment, disease and dying are so feared because they are socially invisible and, therefore unknown and unknowable. They are the undiscussable taboos. The third theme, Bodily Realism, is that having a realistic view of the body, which would at minimum require accepting the fact that human bodies are fragile things, prone to disease and accident and are ultimately destined to die, makes one more at ease in the world, and able to live better lives and live as a better person. Indeed, so the argument goes, our lives would be richer, more rewarding—emotionally and morally—if we cared less about normalcy because of a dread of abnormalcy, but instead learned to accept if not positively value the physical variability of human existence.

Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of deterring other criminals. Because the most commonly discussed version of retributivism is developed from Kant's moral and legal theory, I will refer to it as Kantian Retributivism. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair. I have argued elsewhere that neither strategy is tenable.

Whiteness theorists argue that whiteness has two essential features. First, whiteness colonizes, appropriates and controls the Other. Whiteness is, then, racist.Second, whiteness is constructed unwittingly. Whites are, it is claimed, unaware of the harms they inflict on a genocidal scale because whiteness, like the air we breathe, is “invisible” to those who construct it and are constructed by it. Whiteness is, then, innocent. I think defining whiteness as innocent racism is troubling for two reasons. First, it leaves whites unaccountable for the acts of racism they perpetuate. Second, I think that the claim that whiteness is invisible “like the air we breathe,” while a powerful and fascinating metaphor, is mistaken. I will argue that whiteness is closeted; and while the closet makes the acknowledgement of whiteness difficult, it does not make it impossible. Thus, though closeted, whites are morally accountable for the acts of racism they commit.

Since the 1970s, sexual assault laws have evolved to include prohibitions of sexual acts with cognitively impaired individuals. The argument justifying this prohibition is typically as follows: A sex act that is forced (without the legally valid consent of) someone is sexual assault. Cognitively impaired individuals, because they lack certain intellectual abilities, cannot give legally valid consent. Therefore, cognitively impaired individuals cannot consent to sex. Therefore, sex acts with cognitively impaired individuals is sexual assault. The prohibition of sex with such individuals is regarded by many as a significant advance. It certainly seems to be an improvement upon the days in which individuals could engage in sex with cognitively impaired adults with impunity regardless of the physical, emotional and psychological consequences such sex acts caused for those individuals. Yet, this legislation raises serious puzzles. For example, in the U.S., cognitively impaired individuals are routinely convicted for sexual assault with non-cognitively impaired minors. How should we think about the conviction of a cognitively impaired individual who has sex with an underage, non-cognitively impaired individual? Does this imply that cognitively impaired persons are capable of understanding the criminality of failing to obtain legal consent while being, nonetheless, incapable of giving such consent? Should the law address only those cases in which either both or neither of the individuals involved are cognitively impaired? If so, why? In this paper, I claim that shifting the analysis to one based on harms (away from legal standards of consent) better captures our intuitions about sex acts involving cognitively impaired individuals. (Indeed, a review of case law reveals a focus within these cases on the harms experienced by the impaired individuals involved.) I close the paper by identifying the difficulties that plague any legislation concerning individuals with mental impairments.

Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of deterring other criminals. Because the most commonly discussed version of retributivism is developed from Kant's moral and legal theory, I will refer to it as Kantian Retributivism. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair. I have argued elsewhere that neither strategy is tenable.

Hegel claims that punishment is justified because it annuls crimes thereby revealing the criminal act for what it is, a will “null and void.” In this paper I analyze the complex notion of annulment, arguing that Hegel is claiming that punishment does not change the past, but alters the status of the criminal will so as to reveal that will for what it is, a violation of a victim’s rights. In short, punishment invalidates the criminal's will and validates the victim's rights. I conclude that Hegel has offered a compelling reason to punish criminals and one that fits well a commitment to taking victim rights seriously.

If one can judge a society by how it treats its prisoners, one can surely judge a society by how it treats cognitively- and learning-impaired children. In the United States children with physical and cognitive impairments are subjected to higher rates of corporal punishment than are non-disabled children. Children with disabilities make up just over 13% of the student population in the U.S. yet make up over 18% of those children who receive corporal punishment. Autistic children are among the most likely to receive corporal punishment. Although they may deny or redescribe particular instances of corporal punishment or their use of restraints, educators defend such actions as legitimate punishment. In this paper, I assess the logic underlying the use of restraints and corporal punishment on autistic children by educators. The rationalizations for the corporal punishment or restraint of autistics stems from the educator’s desire to control the autistic children so as to end typical autistic behaviors such as rocking, repetitive verbalizations, or “flapping” but also the autistic child’s non-affective responses such as not appearing to feel remorse or shame or the absence of a verbal acknowledgement of remorse or shame. The educators assume that the autistic’s failure to exhibit the desired responses is evidence of the autistic’s moral incorrigibility and is, therefore, evidence of the appropriateness of corporal punishment. But this assumption of the incorrigibility of the autistic child is questionable. Indeed accepting this incorrigibility assumption reveals two important problems. First, instructors using physical punishment on autistic children do not understand autism. Second, they are not working with a tenable conception of punishment. Any action undertaken to induce socially acceptable behaviors (whether it be the end of autistic acts or responses such as remorse) is to fail to understand what the legitimate punishment of children is about.

After stating "I am gay" Navy Lieutenant Paul G. Thomasson was honorably discharged from the military. In Thomasson v. Perry (1996), the United States Court of Appeals for the Fourth District affirmed Thomasson's discharge. Thomasson is now considered the leading case evaluating the U.S. military's "don't ask, don't tell" policy. In this paper, I show that the court's analysis of the Department of Defense policy rests of two unarticulated and undefended assumptions about sexuality. The first is that an act of sex is essentially defined in terms of the sexual orientation of the persons engaging in that act. The second is that whether or not a person is an open homosexual determines the essential nature of the homosexual acts of others. I conclude that both assumptions are untenable, therefore the "don't ask, don't tell" policy is indefensible.

Retributivism is regarded by many as an attractive theory of punishment. Its primary assumption is that persons are morally responsible agents, and it demands that the social practices of punishment acknowledge that agency. But others have criticized retributivism as being barbaric, claiming that the theory is nothing more than a rationalization for revenge that fails to offer a compelling non-consequentialist justification for the infliction of harm. Much of the contemporary philosophical literature on retributivism has attempted to meet this criticism. One common move has been to recast retributivism within the social contractarian tradition. The argument is that the justification for retributive punishment flows naturally from social contractarian political theories. Thus, not only is it reasonable to claim that wrongdoers merit punishment independent of any consequentialist concerns, but that fairness requires retributive punishment. While allying retributivism with social contractarianism provides retributivism with a nonconsequentialist justification for punishment (one fuller and less problematic than the conception of "desert" that worries the critics of retributivism), I will argue that far from strengthening the justification of retributivism, social contractarianism weakens it. For this version of the theory invites the Marxist charge that our society is ordered by profoundly unfair political and social institutions, and that to justify punishing the criminals disadvantaged by such institutions with the claim that fairness requires their punishment approaches a cruel joke. Some have defended the contractarian-based theory of retributivism against the Marxist criticism by claiming that it does not require the punishment of such individuals precisely because social relations are unfair. I will conclude in this paper that although such a move is appealing, it is untenable. And if such a move is not open to the retributivist, she is now in the uncomfortable position of either turning a blind eye to the injustices by which many criminals are victimized or abandoning her retributivist intuitions (the very intuitions that drove her to social contractarianism to bolster her theory of retributivism in the first place). I will conclude that attempts to bolster retributivism by appeal to social contractarianism should be abandoned and retributivists ought instead to seek to develop their theory of punishment within an alternative type of political theory.

This anthology of contemporary articles (and court cases provides a philosophical analysis of race, sex and gender concepts and issues. Divided into three relatively independent yet thematically linked sections, the anthology first addresses identity issues, then injustices and inequalities, and then specific social and legal issues relevant to race, sex and gender. By exposing readers to both theoretical foundations, opposing views, and "real life" applications, the anthology prepares them to make critically reasoned decisions concerning today's race, gender and sex social issues. Sex and Gender Identity. Sexuality and Sexual Orientation. Race and Ethnicity. Racism. Sexism. Heterosexism and Homophobia. Equality and Preferential Treatment. Discriminatory Harassment. Identity Speech and Political Speech. Sexual Speech. Sexual Assault. For anyone interested in the philosophical underpinnings of today's Race, Sex, and Gender issues.

In this chapter, I describe my “post-diagnosis” experiences as the parent of an autistic child, those years in which I tried, but failed, to make sense of the overwhelming and often nonsensical information I received about autism. I argue that immediately after being given an autism diagnosis, parents are pressured into making what amounts to a life-long commitment to a therapy program that (they are told) will not only dramatically change their child, but their family’s financial situation and even their entire mode of existence. Moreover, despite information overload, many treatment programs for autism rely on empty jargon and make completely unrealistic promises, so parents are left feeling overwhelmed and panicked. Even well respected therapy programs encourage parents to spend liberally. Indeed, autistic therapists, who help construct what I refer to as the Culture of Autism, advise parents to commit to a minimum of 35 to 45 hours of intensive therapy every week. The implications are clear: for a parent who works full-time, their autistic child becomes a second full-time job. Autism is big business right now, and therapists are pushing parents to the brink of desperation. So it is not too surprising that there is a desperate cry for a more permanent solution—which is why researchers seek to cure autism. But there are two ways to conceptualize cure. A Therapeutic Cure model (TC) conceives of a cure as a beneficial treatment for the patient that eliminates or ameliorates the harms of the disease or condition. But the notion of a therapeutic cure for autism is highly implausible, given the complexities of autism. Indeed, at this point, the vast majority of researchers have come to the conclusion that the idea of a therapeutic cure for autism is simply a non-starter. Therefore the bulk of research seeking a cure for autism focuses instead on a second approach, which I refer to as the Negative Eugenics Cure model (NEC). With this model, the intention is to eliminate the disease or condition without regard for the health or well-being of the organism carrying the disease or condition. So, with regard to autism, researchers are focusing on identifying genetic markers for autism that can be detected in utero, or in embryos, so that autistic fetuses can be eliminated and autism eradicated by preventing the existence of autistic individuals. I review both models and argue that both fail to provide convincing arguments that the “solution” either offers is desirable. Both rest on the assumption that autism renders a life not worth living which, all things considered, is false. Instead of pushing to cure autism, an idea pervasive in this Culture of Autism, I contend that autistics are individuals with lives worth living. Moreover, rather than expend millions on research to search for the means to eliminate autism, we should instead expend our resources to ensure autistic individuals have access to support they may need. If the phenomenology of autism were better understood and appreciated, the panicked demand for a cure for autism might abate and perhaps autism could be seen as having value in and of its own right.

Unjustifiable assumptions about sex and gender roles, the untamable potency of maleness, and gynophobic notions about women's bodies inform and influence a broad range of policy-making institutions in this society. In December 2004, the U.S. Court of Appeals for the Sixth Circuit continued this ignoble cultural pastime when they decided Everson v. Michigan Department of Corrections. In this decision, the Everson Court accepted the Michigan Department of Correction's claim that “the very manhood” of male prison guards both threatens the safety of female inmates and violates the women's “special sense of privacy in their genitals” and declared that sex-specific employment policies for prison guards is not impermissibly discriminatory. I believe that the Court's decision relies on unacceptable stereotypes about sex, gender and sexuality and it significantly undermines Title VII's power to end discriminatory employment practices