Real-World Criminal Law and the Norm against Punishing the Innocent: Two Cheers for Threshold Deontology

Abstract

This paper assesses how a deontological retributivist might elaborate the norm against punishing the innocent and explains how that norm can be reconciled with the practicalities of the criminal law. While something like the Doctrine of Double Effect has been deployed for that purpose, the doctrine is controversial and may not reach far enough to justify all the instances in which a robust norm against punishing the innocent confronts real-world difficulties, including in the framing of criminal prohibitions. The paper considers the role that threshold deontology might play in the process. Along the way, it responds to an extended critique of threshold deontology.

Keywords: Punishing the Innocent, Retributivism, Deontological Retributivism, Threshold Deontology, Doctrine of Double Effect