Mass Incarceration and the Theory of Punishment
“Mass Incarceration and the Theory of Punishment,” Criminal Law & Philosophy 2015, DOI 10.1007/s11572-015-9378-x
23 Pages Posted: 16 Apr 2016
Date Written: July 19, 2015
An influential strain in the literature on state punishment analyzes the permissibility of punishment in exclusively deontological terms, whether in terms of an individual's rights, the state's obligation to vindicate the law, or both. I argue that we should reject a deontological theory of punishment because it cannot explain what is unjust about mass incarceration, although mass incarceration is widely considered — including by proponents of deontological theories — to be unjust. The failure of deontological theories suggests a minimum criterion of adequacy for a theory of punishment: it must take aggregation seriously such that it returns plausible results when scaled up from individual cases to large public institutions. In this vein, I briefly sketch a prioritarian metric for evaluating the use of custodial sanctions in creating and allocating social advantage.
Keywords: punishment, mass incarceration, aggregation, deontology
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