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Abstract:
What are the terms of legitimate punishment in a liberal democracy? Traditional approaches to this question tend to focus on the purposes punishment is supposed to serve (deterrence, retribution, rehabilitation, moral education, etc.) while giving little if any consideration to the coercive deployment of state power punishment represents. In this article, I take the coercive nature of state punishment as my starting point. My aim is to determine what normative constraints, if any, exist on the state's power to punish criminal offenders in a liberal democracy - a determination, I argue, that is especially urgent given the current size of America's prison population.

To answer this question, I draw on the work of John Rawls. I do so because I share Rawls' view that, if the exercise of state power in a liberal democracy is to be legitimate, it must be justifiable in terms that all members of society subject to that power would accept as just and fair. Rawls' deliberative model was originally intended for questions of ideal theory, on which all members of society are assumed to act justly towards others. The first task of the paper is thus to render Rawls' model applicable to problems of partial compliance, of which punishment is one. Ultimately I argue that, assuming conditions of partial compliance, deliberating parties would approach the task of selecting principles of punishment by considering the implications of various alternative principles as if they could end up as either crime victim or punished offender once they enter society as citizens.

Having established this perspective, and its consistency with the basic liberal ideals of moral equality and individual sovereignty, I then go on to determine the principles of punishment that would be selected by parties deliberating under these conditions and would thus constitute the terms of legitimate punishment in liberal democracy. I identify five such principles, at the heart of which is what I call, following Braithwaite and Pettit, the "parsimony principle." The basic idea of this central principle is that the punishment of convicted offenders must be no more severe than necessary to yield an appreciable deterrent effect on the commission of serious offenses.

Finally, I consider how the principles of legitimate punishment might be translated into actual criminal justice policy. Here, I concede that the inevitability of reasonable disagreement, even among legislators deliberating in good faith over what punishments the principles allow, means that in practice we can never be fully confident of the legitimacy of any punishments imposed. As I show, however, the principles of legitimate punishment I identify still provide the basis from which to call into question the legitimacy of a range of criminal justice policies currently in force in the United States, including mandatory minimums, California's "three strikes" law, the under-funding of indigent defense, and the widespread overcrowding and sexual violence in the nation's prisons and jails. In this way, the theoretical analysis I offer provides a basis for challenging the legitimacy of many criminal sentences being served right now in American prisons.

punishment, state power, legitimacy of criminal sentences

Abstract:
To date, the debate over private prisons has focused largely on the relative efficiency of private prisons as compared to their publicly run counterparts, and has assumed that, if private contractors can run the prisons for less money than the state without a drop in quality, then states should be willing to privatize. This comparative efficiency approach, however, has two significant problems. First, it is concerned exclusively with efficiency, despite the fact that the privatization of prisons arguably implicates more urgent values. Second, it accepts the current state of public prisons as an unproblematic baseline, thus failing to consider the possibility that neither public prisons as presently constituted nor private prisons in the form currently on offer are adequate to satisfy society's obligations to those it incarcerates. In this Article, I examine the private prisons issue from a third perspective, that of liberal legitimacy. On this standard, if our penal policies and practices are to be legitimate, they must be consistent with two basic principles: the humanity principle, which obliges the state to avoid imposing punishments that are gratuitously inhumane; and the parsimony principle, which obliges the state to avoid imposing punishments of incarceration that are gratuitously long. After sketching the foundation for this legitimacy standard, I then apply it to the case of private prisons. Approaching the issue of private prisons from this perspective helps to reframe the debate in two ways, both long overdue. First, it allows for a direct focus on the structure and functioning of private prisons, without being derailed by premature demands for comparison with public-sector prisons. It thus becomes possible to assess directly the oft-heard claim that the profit incentive motivating prison contractors will distort the decisions taken by private prison administrators and lead to abuses. Second, it makes it possible to see that the state's use of private prisons is the logical extension of policies and practices that are already standard features of the penal system in general, thus throwing into sharper relief several problematic aspects of this system that are currently taken for granted. In this sense, the study of private prisons operates as a miner's canary, warning that not just the structure of private prisons, but also that of American punishment practices more broadly, may need reconsideration.

Private prisions, privitization of state-run prisions, policies and practices of the penal system

Abstract:
Debates over contracting out government functions to private, for-profit entities often play out within a deliberative framework that can be thought of as "comparative efficiency." From this perspective, the decision whether to privatize any given government function turns on which sector, public or private, would perform the relevant function more efficiently. Comparative efficiency thus has two defining features: it views the motivating question as a choice between public and private, and it treats efficiency as the sole value guiding the analysis. That comparative efficiency is the appropriate way to approach the issue of privatization tends to be taken for granted. Its value neutrality is also assumed. In this essay, I challenge these assumptions. Using the example of private prisons, I argue that comparative efficiency operates instead as a rhetorical device that keeps the debate within particular bounds, excluding some concerns altogether and reframing others in ways consistent with its own priorities. I then consider the interests and values served by the ways comparative efficiency structures the private prisons debate, and argue that it is the project of privatization itself that is the beneficiary.

privatization of government functions, private prison debate, comparative efficiency

Abstract:
In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating - that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens - disproportionately poor people of color - who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control. This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.

imprisonment, corrections, administration of criminal justice

Abstract:
The dominant model of ethical lawyering views lawyers as zealous advocates, who do whatever possible within the bounds of the law to serve their client's interests, regardless of what the lawyers themselves think of their client's ends. More recently, however, legal ethics scholars have begun to challenge the hegemony of this model, arguing that ethical lawyering involves not the suspension of moral judgment but the exercise of it. On this alternative "contextual view," lawyers must, as Deborah Rhode puts it, take "personal moral responsibility for the consequences of their professional acts." In developing this alternative model, Rhode and others have focused on the obligations of ethical lawyers. But any complete account of ethical lawyering also needs a theory of moral character. That is, we must ask not only what ethical lawyers do, but what traits of character ethical lawyers possess which make them able to fulfill their moral responsibilities. In this article, I focus on this latter question, and argue that the character traits on which Rhode's contextual model implicitly relies are those commonly associated with people of integrity.

Part I explores both the standard "zealous advocacy" conception of the lawyer's role and the alternative contextual account Rhode develops in her book In the Interests of Justice: Reforming the Legal Profession. Part II provides a brief philosophical exploration into the moral quality of integrity, then returns to Rhode's account to demonstrate the extent to which Rhode's vision of the ethical lawyer depends on lawyers possessing the character traits that comprise integrity. Finally, Part III explores some implications of this dependence for the legal profession itself. It argues that although basic moral character is to some extent shaped long before lawyers enter practice, the institutional structures and practices of the profession can nonetheless have a significant influence on whether a lawyer's integrity is nurtured or undermined. Part III closes by identifying an incompatibility between ethical lawyering and an undue concern with maximizing profit, and argues that engaging in this latter pursuit may undermine the very qualities of integrity on which ethical lawyering on the contextual model depends for its success.

This article was originally published in 2002 in the Fordham Law Review, as part of a symposium in honor of the publication of Deborah Rhode's book, In the Interests of Justice: Reforming the Legal Profession. A lightly edited version of the piece will be reprinted in Professional Ethics and Personal Integrity, Tim Dare and Brad Wendel, eds. (forthcoming, Cambridge Scholars Publishing).

ethical lawyering, zealous advocacy, integrity, profit, institutional ethics

Abstract:
The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes.With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.

At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice - and thereby creates incentives for officers not to notice - despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-à-vis society’s prisoners.

Eighth Amendment, treatment of prisoners, Farmer vs. Brennan, prison conditions, Supreme Court scrutiny