Brooklyn Law School

Abolitionist theory combines both ideas and struggle into a vision for a better world. This review of Tommie Shelby’s book “The Idea of Prison Abolition” argues that Shelby’s critique of prison abolition separates out philosophical ideas from those born of struggle, and by doing so, necessarily sells the idea of prison abolition short. Using two examples of abolitionist on-the-ground practices connected to the work of Angela Davis–community bail funds and collective defense campaigns–this review argues that the collective work of experimenting with and prefiguring a world without prisons is part of what gives prison abolition its moral and empirical content.

Abstract Over ten million people are incarcerated throughout the world, even though punishment theorists have struggled for centuries to morally justify the practice. Theorists usually address criminal justice under abstract, idealized conditions that assume away real-world uncertainty. We don’t have time, however, to wait for a perfect moral theory, and the history of philosophy suggests we will never find it. This book examines the justification of punishment in the here and now, recognizing that we are uncertain about matters of both fact and value. Retributivists believe offenders deserve punishment because of their wrongdoing. They treat deserved punishment as intrinsically valuable. Retributivism is too unfinished, however, to address punishment in the here and now, and the widely popular notion of proportional punishment at its core is both elusive and often undesirable. Rather than seeking retribution, we should reduce suffering by deterring crime and incapacitating and rehabilitating dangerous people. Though this consequentialist approach has fallen out of favor in recent decades, it is better suited to addressing punishment in the here and now than the approach commonly taken by retributivists. If consequentialism successfully justifies punishment, then contrary to some carceral abolitionists, at least some incarceration under some conditions is justified today. In the here and now, we will rarely know how to punish for the greatest good, but we can seek to punish for the greater good.

Article 103 of the United Nations Charter establishes the primacy of states’ obligations under the Charter over their other international obligations. The effect of Article 103 on states’ obligations has been discussed in the jurisprudence and literature but only in the context of obligations conflicting with binding Security Council decisions. Those discussions fail to shed light on its legal significance in a variety of other situations. This writing explores the application of Article 103 in other contexts. It explores the legal ramifications of Article 103 applied to states’ obligations that conflict with the Charter itself, with obligations contained in certain General Assembly resolutions, and with International Court of Justice (“ICJ”) judgments. The importance of filling this gap can be seen when applying the rule in Article 103 to the conflict in Ukraine, including to the Ukraine v. Russia case under the Genocide Convention before the ICJ, as a case study.

Abstract If punishment is ever morally appropriate, it will only be so in amounts that fit the circumstances. We cannot possibly punish justly without at least some ability to measure punishment severity. Since punishment is often thought to require an intentional infliction, one might think punishment severity depends on the severity punishers intend. But since real-world punishment practices include both intended and unintended inflictions, the “intent approach” to severity fatally ignores unintended harms. Our punishment practices cannot be justified unless we justify their side-effect harms as well. The “harm approach” to punishment severity, by contrast, focuses not on intentions but on foreseeably caused harms. Because the harm approach measures what needs to be morally justified, it better fits theories that seek to justify punishment practices. It also fits well with our intuitions about severity: those punished care little about what punishers intend and a lot about how much they are harmed. Once harm is properly measured, however, our traditional notions of retributive proportionality look surprisingly unattractive, and two seemingly plausible ways of fixing proportionality fail.