Law & Society Blog

While I greatly appreciate Bloomfield’s addition of the bears that shoot laser beams out of their eyes to the cast of characters that appear in the discourse about the justification of punishment (such as the ubiquitous small-town Sheriff who, in order to prevent a murderous riot, sacrifices an innocent person to the mob), I am not sure that framing the justification debate in terms of rights against the state for protection is particularly helpful. Those rights, I would argue, are derivative of the state’s right to punish criminals. And whether such rights are morally defensible is the issue. Moreover, even if state punishment can be justified (on consequentialist and/or retributive grounds), one could still argue that third parties have no right to compel state action. Some countries grant such rights vis-?… -vis the executive branch more liberally than others. Other states even permit or have seriously considered permitting suits against the legislative branch for legislative inaction. But the considerations for and against granting such rights include a broader set of questions than “just” whether punishment is morally justifiable or even morally required.

That said, I do agree with Bloomfield’s observation that the choice of a particular theory of punishment as the “official” theory would commit a state to certain features of a criminal justice system. For example, if retributivism were the official theory, then plea bargains, prosecutorial discretion, indeterminate sentencing, and any form of coercive crime prevention would be hard to justify. The latter, in particular, would probably require a different justification altogether. The conceptual separation between (backward-looking, i.e., retributive) punishment and (forward looking) prevention arguably led to the bifurcated police system in some states such as Germany, where the police acts in two capacities, each subject to very different rules and constraints: criminal investigation (as part of the criminal justice system), and threat prevention (as part of the administrative system). In contrast, if the official theory was of consequentialist nature, we would expect the line between investigation and prevention to be blurred, as is the case in the U.S. We would also expect an opportunistic calibration and re-calibration of punishments, as well as a significant discrepancy in the announced punishments and the real time served. Moreover, prosecutorial discretion would be of paramount importance, as would be a practice of plea bargaining. However, the critical question that started this thread remains: Can punishment be justified on purely consequentialist grounds? Whether I am justified in defending myself against homicidal, cybernetically enhanced bears or whether I have a right to demand that the state protect me from this long overlooked yet endemic threat, is a different question.