Abstract
In the 1970s, retributivism gained attention as a critical project against the indeterminate sentences led by the rehabilitative philosophy, and over the past decades became the prevalent theory of punishment. Retributivism calls for the respect of offenders as responsible moral agents who should get the punishment they deserve in proportion to the severity of the crime and the degree of culpability. Current retributive theories stress the importance of punishment’s expression or communication of blame to the offender for the wrong committed. However, unfortunately, as commentators have pointed out, what started as a liberal call for fair sentencing was used by politicians for harsher punishments. The increase in harsher punishments under the banner of giving offenders what they deserve led to mass incarceration in the United States as Kelly reminds us that “almost 2.3 million people currently sit in prison or jail” (p. 16).
Kelly’s timely book contributes to an important discussion about the problem of mass incarceration in the United States and calls for rethinking blame as a justifiable aim of punishment. The book is structured in six chapters. In the first three chapters, she dissects the idea of moral blameworthiness and argues for its incompatibility with legal systems of punishment. In the first chapter, through a discussion of criminal liability and excuses in the American legal system, she shows how criminal liability does not entail moral culpability. Thus, the moral criteria needed for considering offenders blameworthy or deserving blame are not met. In the second chapter, Kelly discusses possible retributive proposals to amend the law to reflect the moral competence of the offenders to have acted better so as to deserve blame when they do not. However, Kelly argues that such proposals will not work because “it is so hard to provide evidence that enables us to understand how difficult it would have been for a person to have acted better than she did” (p. 68). In the third chapter, Kelly argues for an understanding of moral excuses that takes into account the context of hardships and obstacles that an agent face and calls for shifting the focus from the moral blameworthiness of the offender to the wrongful nature of his/her actions.
Kelly moves in the fourth chapter to discuss the suitability of the criminal justice institution to express blame. She provides persuasive arguments for the inability of the institution to assess blameworthiness, given the exclusion of motives in assessing criminal culpability. Kelly also discusses a range of engaged moral responses that the institution could adopt instead of blame. In the final section, she reflects briefly on the public nature of the criminal law and the limits of its authority over citizens, however, giving more space to discussing the limits of state authority could have added strength to her arguments.
In the fifth chapter, Kelly turns to propose an alternative theory after rejecting blame in the past chapters. She offers a just harm reduction theory where the need to protect people’s basic rights permits shifting the harm caused by the crime onto the offender. Further, she proposes a specific deterrence rationale where punishment aims to guide individual actions and to disincentivize persons from reoffending within limits driven from ideas of due process and fairness.
The problem with Kelly’s theory appears when she argues for a principle of shared responsibility, where “people who have committed crimes should be considered as members of a group: the group of criminal lawbreakers”, and each lawbreaker is responsible “for a share in the total effects of his crime type … responsibility for the threat of harm, distributed across the population of criminal wrongdoers” (p. 136, 140). Further, she argues that in deciding the intensity of “harm reduction efforts, for a given crime, [it] should be … a function of how important the society decides it is to deter and remediate crimes of the sort in question” (p. 141). Kelly’s approach raises serious concerns in at least two respects. One, proposing shared responsibility instead of individual responsibility raises doubts about the theory’s vulnerability to using offenders as means for the protection of the society, despite the limitations she proposes. Second, giving the decision on the upper scale of punishment to what the society would reasonably see as effective deterrence makes Kelly’s theory equally vulnerable to being abused for harsher punishments under claims of reducing the harm of crimes. Her recommendation potentially repeats what happened with retributivism, which initially started from claims of respect for individuals’ rights and agency.
In the final chapter of the book, Kelly ends with an interesting discussion of the justification of punishment in unjust societies. She reflects on how social injustices challenge the moral standing of the state to blame in retributive theories but equally submits to the challenge social injustices pose to her theory or any other theory of punishment. Kelly argues, under such conditions, “the use of punishment should be strictly limited and qualified”, and the legitimacy of the criminal justice institution can only then be acquired “piecemeal” depending on the practices of the institution and the respect for individual rights (pp.174–176).
The book is an important contribution and a call to rethink blame and retributive justifications. It highlights the context of hardships surrounding offenders and sheds doubts on the suitability of blame as an aim of punishment. It provides a quick sketch of an alternative theory of punishment, which starts from important grounds of protecting basic rights; however, it raises concerns that the solution might turn into part of the problem.
ORCID iD
Hend Hanafy https://orcid.org/0000-0003-1044-2075