Joseph Adams

This paper argues that many of our most important theories of retributivism are unwittingly committed to the radical thesis that prepunishment—punishment before an offense—is morally permissible. From the perspective of diachronic justice on which these theories crucially depend, the timing of retribution is, ceteris paribus, irrelevant. But retributivism’s counterintuitive support does not stop there: there are conditions under which pre-offense apprehension and punishment guarantees a higher probability of justice being done. Under these conditions, the popular retributive theories I have in mind do not just permit, but require, prepunishment.

Herbert Morris argues in his influential retributivist paper, "Persons and Punishment," that criminals deserve punishment because their actions represent an unfair distribution of benefits and burdens in society. The proper distribution of benefits and burdens is important, in part, to restore law abiding citizens’ confidence that others will follow the law. In this paper I show that Morris's argument for why criminals deserve punishment morally requires us to set up an institution of rehabilitation in addition to the institution of punishment. Such an institution is morally required because neither pure punishment systems nor punishment systems that incorporate quasi-rehabilitative aspects have ever worked to uphold the necessary confidence that Morris tells us law abiding citizens must have in order to protect the social order. Moreover, we cannot abandon Morris's appeal to the duty to maintain social order without also abandoning a plausibly Morrisian framework.