Retributivism Has a Past: Has It a Future?Michael Tonry For nearly two centuries in the United States, the punishment of crime was largely aimed, in theory and in practice, at prevention, rehabilitation or incapacitation, and deterrence. In the mid-1970s, a sharp-and some argued permanent-shift occurred. Punishment in the criminal justice system became first and foremost about retribution. Retribution trumped rehabilitation; proportionality outweighed prevention. The retributivist sea change was short-lived, however. After a few decades, some policy makers returned tentatively to individualized approaches to punishment, launching initiatives like drug courts and programs for treatment and reentry. Others promoted policies that retained the rhetoric but betrayed the theory-punishment in proportion to culpability-of retributivism, resulting in mandatory minimum sentences, three-strikes-and-you're-out laws, "dangerous offender" and "sexual predator" laws, "truth in sentencing," and life without the possibility of parole. What now for retributivism? Retributivism Has a Past: Has It a Future? brings thoughtfulness and rigor back into the retributivism debate. This collection of essays trains some of the most influential and brightest established and up-and-coming legal and philosophical minds on how retributivism does, might, or should affect contemporary policy and practices. The volume's aim is neither to condemn nor to justify, but to take new policies and practices seriously and examine them closely. At a time when criminal-justice policy makers are forced to reconsider contemporary approaches to punishment and attempt to devise new ones, Retributivism Has a Past: Has It a Future? offers serious theoretical critiques of the recent past and justifications for possible futures. |
Contents
| 3 | |
2 Is Twentyfirst Century Punishment Postdesert? | 30 |
3 What Does Wrongdoing Deserve? | 46 |
4 Responsibility Restoration and Retribution | 63 |
5 Punishment and Desertadjusted Utilitarianism | 86 |
The Role of Public Opinion in Sentencing | 101 |
7 A Political Theory of Imprisonment for Public Protection | 130 |
8 Terror as a Theory of Punishment | 155 |
9 Can Abovedesert Penalties Be Justified by Competing Deontological Theories? | 169 |
10 Never Mind the Pain Its a Measure Justifying Measures as Part of the Dutch Bifurcated System of Sanctions | 188 |
11 Retributivism Proportionality and the Challenge of the Drug Court Movement | 214 |
12 Drug Treatment Courts as Communicative Punishment | 234 |
Th e Desertmodel Debate and the Importance of the Criminal Law Context | 256 |
| 275 | |
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above-desert Andrew Ashworth Antony Duff argue argument Ashworth assessment Braithwaite censure citizens committed conception concerns consequentialist considered convicted criminal justice criminal justice system criminal law Cullompton culpability dangerous defendants desert-adjusted utilitarian discussion drug court drug possession Duff Dutch empirical desert enemy criminal law essay example fear future H. L. A. Hart hard treatment harm Hart Hirsch Husak imposed imprisonment incapacitation incarceration issues justified Keijser Kleinig Law Review liberal limited ment Michael Tonry moral neoliberal Netherlands normative offender’s offenders Oxford University Press penal theory penalties person Philosophy political potential prevention principle prison problem programs proportionality protection measures public opinion public wrong punitive question Rawls Rawlsian response restorative justice retributive retributivism retributivist risk role sanctions sentencing laws severity social suffering tencing theorists theory of punishment therapeutic jurisprudence three-strikes laws tion traditional treat victims violations von Hirsch wrongdoing deserves York