• The Corrective Justice Theory of Punishment

    Author(s):
    Jacob Bronsther
    Date:
    2021
    Group(s):
    MSU Law Faculty Repository
    Item Type:
    Article
    Permanent URL:
    https://doi.org/10.17613/m09f-ye08
    Abstract:
    The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question-central to determining the degree to which punishment is justified-is why society's need for general deterrence is an offender's problem. Why is it his responsibility to scare off wouldbe future offenders? His past offense does not magically render him accountable for the actions of total strangers. Existing theories of criminal justice are unable to answer this question. This Article fills the lacuna-justifying state punishment, but, more importantly, establishing its moral limits-with the help of tort law principles. It argues that deterrent punishment can be justified as a means of rectifying an offender's contribution to "criminality"-not merely the perceived but the objective threat of crime in society. Criminality chills the exercise of our rights, forces us to take expensive precautions, and exposes us to unreasonable risks of harm. By having increased the level of criminality in the past, an offender owes a duty of repair to society as a whole, a duty of "corrective justice" in the language of tort theorists. He can fulfill this duty by decreasing the threat of crime in the future. In this way, deterrent punishment does not merely sacrifice him to limit the problem offuture crime, for which he has no personal responsibility. Rather, it forces him to fulfill his own duty of repair.
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    Published as:
    Journal article    
    Status:
    Published
    Last Updated:
    3 months ago
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