Abstract Robin Hood and the mercy killer embody one paradigm of the ethically-motivated offender: a person who breaks the law to ameliorate the suffering of someone who is in urgent need but lacks good lawful means of helping herself. Typically, we assume that this suffering person is someone other than the offender. But if socially disadvantaged offenders’ own unmet needs and unrealized capabilities are great, and their lawful opportunities are poor, might there be an ethical motivation behind even their seemingly self-interested crimes? In recent work supportive of such a thought, Christopher Lewis contends that because disadvantaged offenders generally will have had greater ‘incentives’ to offend, presumptively the state has weaker evidence of bad motivation and blameworthiness on their part and should mitigate their punishment. In this chapter, I show that Lewis’s analysis is more transparent and plausible if reframed as an argument that disadvantaged offenders’ crimes are presumptively less negative in their overall expected impact on society (and in that sense more ‘ethical’), because meeting disadvantaged offenders’ basic needs has a moral priority over satisfying non-disadvantaged offenders’ less important interests. Even when reframed in that way, however, the argument is ultimately unconvincing. I doubt that the criminal law should presume disadvantaged offenders have stronger incentives to offend, or more ethical motivations for offending, than non-disadvantaged offenders.

Minors should not be punished as harshly as adults for any given crimes they commit. The most common explanation of why is that youths have diminished responsibility-relevant capacities. Recently, Gideon Yaffe has defended the revisionist view that the reason to give juvenile offenders a break in sentencing derives from their political disempowerment. Here, I defend a third alternative: youth is a developmental stage between legal infancy and adulthood during which people are owed special opportunities to cultivate their moral capacities and otherwise fortify themselves against engaging in criminal wrongdoing. Given that minors have not yet received all those opportunities they are owed, they have a claim to mitigated punishment on account of lacking a fully fair opportunity to protect themselves against criminal liability and punishment. They also have distinctive grounds to object to any punishment that would thwart their continued receipt of the developmental opportunity they are owed as youths.

Even if a hiring process is merit-based and non-discriminatory, it may still fail to ensure substantive fairness if some applicants lacked a fair opportunity to develop their qualifications to compete. A familiar potential remedy for the problem is ‘affirmative action’, in the sense of preferential treatment for job candidates who lacked a fair opportunity to develop their job qualifications. I defend two analogous contentions about criminal justice. Even if criminal sentencing is formally fair—ie free of discrimination and bias—it may still be substantively unfair because some disadvantaged offenders have lacked a fair opportunity to develop their capacities and structure their choice environments to fortify themselves against resorting to crime. And the criminal justice system might implement a form of ‘affirmative action in criminal justice’ by mitigating the punishment of offenders who are culpable for crimes but lacked a fair opportunity to avoid becoming so.

Section 718.2(e) of the Criminal Code directs sentencing judges to exercise restraint in the use of incarceration 'with particular attention to the circumstances of Aboriginal offenders.' In R v Gladue, the Supreme Court of Canada interpreted this as a remedial provision aiming to reduce the incarceration of Indigenous people. That has made it appear to be a failure by its own lights. Yet to write off section 718.2(e) and the Gladue principles would be to fail properly to understand their moral foundations and structure. Judges are called upon to reduce the incarceration of Indigenous people neither by working backwards from prison demographic targets nor merely by combating implicit bias. Rather, Gladue requires judges to open their minds to hitherto unappreciated reasons that many Indigenous offenders should be afforded mitigation, restorative justice, and community-based accountability. One reason, we argue, relates to the unfair criminogenic disadvantages disproportionately faced by Indigenous offenders. Another reason is that the Canadian state's complicity in such disadvantages calls into question its legitimate authority and its standing to blame Indigenous offenders. In sum, Gladue calls upon our courts to widen the horizon of fairness in their treatment of Indigenous people. This matters for its own sake in each and every case, whether or not it brings about an appreciable reduction in Indigenous incarceration in the aggregate. Our reconstruction of Gladue not only rescues it from cynical dismissals but also helps to solve the central doctrinal puzzles surrounding it: how Indigenous offenders' unique life circumstances must be connected to their offences to be mitigating; how Gladue principles should apply differently to more and less serious offences; how a variant of Gladue principles should be extended to members of other disadvantaged groups such as Black Canadians; and how judges should weigh the interests of Indigenous victims when sentencing Indigenous offenders.

An incisive and sympathetic examination of the case for ending the practice of imprisonment Despite its omnipresence and long history, imprisonment is a deeply troubling practice. In the United States and elsewhere, prison conditions are inhumane, prisoners are treated without dignity, and sentences are extremely harsh. Mass incarceration and its devastating impact on black communities have been widely condemned as neoslavery or “the new Jim Crow.” Can the practice of imprisonment be reformed, or does justice require it to be ended altogether? In The Idea of Prison Abolition , Tommie Shelby examines the abolitionist case against prisons and its formidable challenge to would-be prison reformers. Philosophers have long theorized punishment and its justifications, but they haven’t paid enough attention to incarceration or its related problems in societies structured by racial and economic injustice. Taking up this urgent topic, Shelby argues that prisons, once reformed and under the right circumstances, can be legitimate and effective tools of crime control. Yet he draws on insights from black radicals and leading prison abolitionists, especially Angela Davis, to argue that we should dramatically decrease imprisonment and think beyond bars when responding to the problem of crime. While a world without prisons might be utopian, The Idea of Prison Abolition makes the case that we can make meaningful progress toward this ideal by abolishing the structural injustices that too often lead to crime and its harmful consequences.

Journal Article The Idea of Prison Abolition, by Tommie Shelby Get access The Idea of Prison Abolition, by Tommie Shelby. Princeton, NJ: Princeton University Press, 2022. Pp. xii + 231. Benjamin Ewing Benjamin Ewing Queen's University Faculty of Law, Canada benjamin.ewing@queensu.ca https://orcid.org/0000-0003-0551-5188 Search for other works by this author on: Oxford Academic Google Scholar Mind, fzad075, https://doi.org/10.1093/mind/fzad075 Published: 07 February 2024

If an offender was treated unjustly by her state in a way that curtailed her options or otherwise made it more likely she would commit her crime, does her state have the moral standing to blame her for that crime? Many theorists have expressed scepticism that the state does. I present three reservations about such scepticism. First, much of it appears to derive its intuitive appeal from problems with the content of state condemnation that can be solved by changing its content rather than its source. Second, adequate legal recognition of everyone’s fundamental moral rights arguably requires not merely the proscription of violations of those rights, but authoritative public condemnation of such violations, which only the state is capable of supplying. Finally, an unjust state would not do disadvantaged offenders any favours by holding its tongue—nor would such offenders help themselves by closing their ears to its criticism.

It is often thought that an agent is blameworthy only for wrongdoing she had a fair opportunity to avoid. However, in this article, I defend the thesis that there is a form of culpability for wrongdoing-exemplified by criminal guilt-that it is possible to accrue even for wrongdoing one lacked a fair opportunity to avoid. If I am right that criminal guilt, properly conceived, is not something everyone necessarily has a fair opportunity to avoid, an offender's lack of fair opportunity to avoid her guilt would appear to be an important potential ground for mitigation at sentencing. Hence, the thesis of this article may point the way toward a novel explanation of a moral intuition that a coterie of moral, political, and legal theorists has for decades sought but struggled to vindicate: the intuition that offenders who have suffered from various social disadvantages should receive less punishment for their crimes, even when those crimes are not morally justified or excused.

This paper presents a novel theory of why recidivists appear to have a weaker moral complaint about punishment than first-timers: we implicitly assume that crime and punishment give people valuable “moral” opportunities to reflect upon the sources of their fallibility as agents and take steps to guard against them. This helps to secure them against succumbing to crime, thereby diminishing the reasonableness of their objection to future punishment. Though compelling in theory, this line of thought is problematic in practice because ex-offenders’ opportunities to avoid reoffending are arguably worsened by criminogenic prison conditions and collateral consequences of conviction to a greater extent than they are improved by the moral opportunities inherent in crime and punishment for it. The moral link between ex-offenders’ opportunities and recidivist “premiums” implies we should bolster the former or scale back the latter.

In the 1970s and 1980s, a handful of legal theorists addressed the problem of criminal justice for offenders who faced criminogenic social disadvantages. Their discussions were provocative but alternatively unpersuasive and underdeveloped. More recently, in the wake of mass incarceration in America, philosophers have put forth new analyses that make important headway but remain scattered, partial, and in need of a systematic and integrated review. In this article, I reconstruct and critique the most prominent and well-developed explanations yet offered of the distinctive moral problems that offenders’ criminogenic social disadvantages may pose for criminal justice. I conclude that some views are misguided, others are unduly limited, and one – based on the ideals of fair opportunity to avoid crime and punishment – is particularly promising but as yet underdeveloped.

Legal philosophers have taken what Ronald Dworkin called “theoretical disagreement” or disagreement about the “grounds of law,” to be of jurisprudential interest because of its putative incompatibility with legal positivism. The first aim of this article is to reframe theoretical disagreement as part of a broader challenge for all jurisprudential theories, positivist or not: how to refine and reconcile three theses that should appear plausible, important, and in tension. (1) Conventionality: the content of the law is determined, presumptively if not definitively, by meta-rules of law whose status as meta-rules arises from a consensus among relevant legal actors to treat them as having that status. (2) Disagreement: judges have theoretical disagreements about the law-i.e., disagreements about such meta-rules of law as legal interpretive methods, which they do not attempt to resolve merely by reference to explicit or implicit empirical consensus. (3) Fidelity: judges’ theoretical disagreements can be in good faith, reasonable, and legally resolvable. The article’s second ambition is to synthesize a broad range of jurisprudential writing pertinent to conventionality, theoretical disagreement, and judicial fidelity to law, in order to bring forward a potential reconciliation of all three that gives each one its due. Law and the requirements of judicial fidelity can be broadly conventional yet subject to reasonable, genuinely “theoretical disagreement” insofar as they are determined not only by contingent empirical truths about convergent practice but also by non-contingent conceptual truths about law’s nature and distinctive virtues. Unlike accounts of theoretical disagreement developed by theorists attacking or defending legal positivism, the view of theoretical disagreement I sketch here is ecumenical. It is compatible with accepting or rejecting legal positivism-though not on all positivists’ or all non-positivists’ terms.

Retributivism is often portrayed as a rights-respecting alternative to consequentialist justifications of punishment. However, I argue that the political legitimacy of retribution is doubtful precisely because retribution privileges a controversial conception of the good over citizens’ rights and more widely shared, publicly accessible interests. First, even if retribution is valuable, the best accounts of its value fail to show that it can override or partially nullify offenders’ rights to the fundamental forms of liberty of which criminal punishment paradigmatically deprives them. Second, the importance of publicly justifying basic forms of coercion on the basis of broadly shared values is a good reason to think that the state should not punish for retribution even those citizens whose actions have created a state interest in punishing them that overrides or partially nullifies their presumptive rights.

AbstractThe prevalence of instrumentalist (particularly economic) approaches to tort law owes not only to the success of the law and economics movement but also to lingering questions about how well tort law instantiates such non-economic values as fairness and responsibility. In this article I use recent work in philosophy to help defend the view that tort law embodies distinctive interpersonal norms of responsibility. First, I draw on T. M. Scanlon’s work to help clarify the role that morally significant forms of agential responsibility play in tort law. Second, I connect the resulting analysis with Christian List’s and Philip Pettit’s theory of group agency and responsibility to defend the idea that responsibility-based explanations and justifications of tort law continue to make sense even when—as is often the case—defendants are groups such as corporations rather than individual human agents.

Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional separation of powers also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertain collective political action when necessary. Though an inversion of the assumed direction of checks and balances, such prods and pleas are not a radical reconfiguration of the basic structure and principles of American government. Rather, they are limited government’s failsafe: a latent capacity inherent to a system of divided authority that does and should activate when the external pressures of a changing world threaten the sustainability of disaggregated governance. By understanding and embracing their role in the shadow logic of prods and pleas, judges and other public officials can protect limited government by, when necessary, counteracting its potential to over-prefer passivity. Through the case study of climate change nuisance litigation - particularly American Electric Power v. Connecticut, a case pending in the Supreme Court of the United States - we examine how three potential obstacles to merits adjudication - political question doctrine, standing, and preemption - should be evaluated in recognition of the significance of prods and pleas. We conclude that federal and state tort law provide an important defense mechanism that can help limited government sustain itself in the face of climate change and other dramatic twenty-first century threats, where the nature of the threat is, in large part, a function of limited government itself. As a residual locus for the airing of grievances when no other government actor is responsive to societal need, the common law of tort is a - and perhaps the - paradigmatic vehicle for the expression of prods and pleas. Although climate change plaintiffs still face long odds on the actual merits of their claims, judges would sell short their institutional role if they dismissed such claims as categorically beyond the proper domain of the courts and the common law. They would duck and weave when they should prod and plea.