Philosophy of Crime and Punishment

Much of what I hear on Hi-Phi Nation directly contravenes my training and mentoring as a lawyer and a judge. But its reasoned arguments and story format keep me constantly re-evaluating my assumptions when I listen, and it keeps law right where it belongs: joined after the hip to philosophy. “-Joseph Laplante, US District Court Judge, District of New Hampshire and Adjunct Professor of Law, Georgetown.

Criminal justice is the most common theme of Hi-Phi Nation, having been the focus of an entire season, and more. Eleven episodes can form the backbone of a possible course, pitched at any level, on the relationship between moral and criminal responsibility, the aim of a criminal justice system, the political morality of criminal legislation, policing, prosecution, sentencing, and incarceration.

This page gives a sketch of a course to guide instructors in forming their own syllabus of accompanying readings, discussion questions, and assignments that are appropriate for their courses/students. The show page for each episode contains links to the philosophical works discussed in the episode, and can serve as readings for more advanced courses.

Philosophy of Crime and Punishment

This course looks at some timeless philosophical questions about criminal and moral responsibility by looking at some of the peculiar and pathological features of criminal justice as it is implemented in America today. The course will use episode of Hi-Phi Nation that looks at particular stories, practices, and criminal cases from recent years to examine which philosophical commitments about justice, both good and bad, underlie the way we implement criminal justice today.

The following are possible units in a course. Some episodes appear in different units.

Legislation

A unit on theories of criminalization with the “actus reus” section including readings on malum in se and malum prohibitum distinction, and “the social construction of crime” from sociological theory.

  • Criminal Minds– An episode about the battle over mens rea requirements for crimes, strict liability crimes, and the wrongdoing/culpability distinction.

Additional Readings:

  • Victor Tadros’ Wrongs and Crimes
  • Doug Husak’s “Wrongs, Crimes, and Criminalization”
  • Frances Heidensohn’s “The Social Construction of Crime.
  • Susan Dimock, Chad Flanders, and Stuart Freen, “A Trilogy of Papers on the Malum prohibitum—Malum in se Distinction in Criminal Law”
  • Gideon Yaffe’s “Excusing Mistakes of Law”, “Mens Rea by the Numbers”
  • Marcia Baron’s “Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide”
  • Paulina Sliwa’s “The Power of Excuses”

Policing and Profiling

  • The Precrime Unit*-Predictive policing technologies and the ethics of profiling.
  • Police Discretion-The history of fourth amendment litigation in Supreme Court starting with Carroll, and a Rawlsian approach to political ethics of police discretion.
  • Risky Business*-The use of predictive algorithms in pre-trial detention and sentencing, and whether future danger can justify imprisonment.

Accompanying Readings:

  • Judith Jarvis Thomson, “Liability and Individualized Evidence,”
  • Christopher New, “Time and Punishment”.
  • Saul Smilanksy, “The Time to Punish”.
  • Christopher New, “Punishing Times: Reply to Smilansky”.
  • Additional Readings on the show pages.

Discretion versus The Rule of Law

  • Police Discretion-The history of fourth amendment litigation in Supreme Court, and a Rawlsian approach to political ethics of police discretion.
  • The Informant-The use of informant deals in sting and undercover operations, and the tension between discretion and rule of law.
  • Gender Justice-The use of police and prosecutorial discretion to prosecute domestic violence and sexual assault, and its contribution to mass incarceration.
  • Redemption in the DDU-How an inmate ends up in solitary confinement, and the existentialist questions about humanity and dehumanization.

Additional Readings:

  • John Rawl’s “The Idea of Public Reason Revisited”
  • Paul Gowder’s “The Rule of Law and Equality”
  • Jeremy Waldron’s “The Rule of Law and the Importance of Procedure”
  • Timothy Endicott’s “The Impossibility of the Rule of Law”
  • Michelle Madden Dempsey’s “Prosecuting Domestic Violence”
  • Chloe Taylor’s “Anti-Carceral Feminism and Sexual Assault—A Defense.”

Punishment

  • The Loophole-The use of acquitted and uncharged conduct in sentencing raises questions of judicial discretion and aggravating/mitigating factors for crimes.
  • Redemption in the DDU-How an inmate ends up in solitary confinement, and the existentialist questions about humanity and dehumanization.
  • Punishment without End-Whether collateral consequences post-imprisonment count as further punishment or civil risk reduction, and how proportionality constraints punishment
  • Justice and Retribution*-Prison abolitionism and its philosophical basis; the case for and against retributive justice.

Additional Readings

  • Angela Davis, Are Prisons Obsolete?
  • Michael S. Moore, “The Moral Worth of Retribution”
  • Jean Hampton “The Moral Education Theory of Punish
  • Russ Shafer- Landau, ‘The Failure of Retributivism”
  • Heidi Hurd, ‘The Morality of Mercy’
  • Heather Strang and Lawrence W. Sherman, “Repairing Harm: Victims and Restorative Justice”

The Excuses

  • Willful Acts-Two cases of litigation on whether addiction should be an excuse in the law, and the disease/choice distinction
  • Criminal Minds– An episode about the battle over mens rea requirements for crimes, strict liability crimes, and the wrongdoing/culpability distinction.
  • The Loophole-The use of acquitted and uncharged conduct in sentencing raises questions of judicial discretion and aggravating/mitigating factors for crimes.

Additional readings:

  • Paulina Sliwa’s “The Power of Excuses”
  • Harry Frankfurt’s “Freedom of the Will and the Concept of a Person”
  • Harold Kincaid and Jacqueline Anne Sullivan’s “Medical Models of Addiction”
  • Hanna Pickard “Responsibility without Blame for Addiction”
  • Michael S. Moore “Addiction and Responsibility”

The following are discussion questions and essay/research prompts that may form assignments (coming soon).