A Theory of Legal Punishment Deterrence, Retribution, and the Aims of the State
This book argues for a mixed theory of legal punishment that treats both crime reduction and retribution as important aims of the state.
A central question in the philosophy of law is why the state’s punishment of its own citizens is justified. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. According to consequentialism, punishment is justified when it maximizes positive outcomes. According to retributivism, criminals should be punished because they deserve it. This book recognizes the strength of both positions. According to the two-tiered model, the institution of punishment and statutory penalties, as set by the legislature, are justified based on their costs and benefits, in terms of deterrence and rehabilitation. The law exists to preserve the public order. Criminal courts, by contrast, determine who is punished and how much based on what offenders deserve. The courts express the community’s collective sense of resentment at being wronged.
This book supports the two-tiered model by showing that it accords with our moral intuitions, commonly held (compatibilist) theories of freedom, and assumptions about how the extent of our knowledge affects our obligations. It engages classic and contemporary work in the philosophy of law and explains the theory’s advantages over competing approaches from retributivists and other mixed theorists. The book also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. Drawing on recent criminological research, the two-tiered model can help us to address some of our most pressing social issues, including the death penalty, drug policy, and mass incarceration. This book will be of interest to philosophers, legal scholars, policymakers, and social scientists, especially criminologists, economists, and political scientists.
Part I Defining Punishment
1 Crimes and Burdens
Part II Normative Foundations
2 Preserving the Public Order: A Defense of Consequentialism
3 The Rational and the Reasonable
4 Expressing Resentment: A Defense of Retributivism
5 The Two-Tiered Model of Punishment
Part III Three Arguments
6 The Epistemic Argument
7 The Compatibilist Argument
8 The Moral Argument
Part IV Decision Procedure
9 In Defense of Criminology
10 On Proportionality
11 Jury Nullification and Reflective Equilibrium
Part V Applications
12 Consequences of Capital Punishment
13 Retribution and Restorative Justice
Philosophers will enjoy this book for its interdisciplinary insights and thoughtful analysis, but we non-philosopher workers in the criminal law orchard will be thrilled to have the book’s accessible insights into solving the real world problems of both doing justice and fighting crime. Not many books of philosophy can provide such a real contribution to making the criminal law better.
– Paul H. Robinson, Colin S. Diver Professor of Law, University of Pennsylvania.
Professor Altman brings fresh insight to the debate between consequentialist and retributivist theories of punishment by highlighting how important it is to consider the institutional actor imposing punishment. Altman's two-tiered model explains why legislative and judicial actors should be viewed through different lenses. This is the rare book that speaks both to those interested in the philosophy of punishment and those concerned with practical questions of institutional design in an age of mass incarceration.
– Rachel Barkow, Vice Dean and Professor, NYU School of Law; and author of Prisoners of Politics: Breaking the Cycle of Mass Incarceration.
Political discourse on the merits of criminal sanction policies is invariably argued in consequentialist terms – the sanction’s crime-prevention benefits and the social cost of the sanction – without consideration of the justness of punishment for the crime committed. The result far too often is tragic miscarriages of justice. Altman’s fine book offers a two-tiered system to remedy this myopia. If legislatures and the courts follow his lead, the punishment can fit the crime.
– Daniel S. Nagin, Teresa and H. John Heinz III University Professor of Public Policy and Statistics, Carnegie Mellon University.