Theories of punishment, Sharon Dolovich, John Rawls, Utilitariansim, Retribution
Criminal Law | Criminal Procedure
When the state punishes a person, it treats him as it ordinarily should not. It takes away his property, throws him in prison, or otherwise interferes with his liberty. Theories of punishment try to explain why such harsh treatment is nonetheless morally permissible, if not morally obligatory. Such theories often seem to take for granted that the state in question is an upright one.
Among other things, the states in which we live fail, one might reasonably believe, to distribute wealth and power fairly among their citizens. Nor are the criminal justice systems they superintend flawless, not least of which because they sometimes convict and punish the innocent. So even if an ideal state is morally permitted (or even obligated) to punish, can the same be said of states like the ones in which we live, whose hands are not so clean? If so, what principles must such fallen states follow in order to lend legitimacy to the punishment they impose?
In order to answer these questions, Sharon Dolovich invites us to imagine ourselves as parties to the original social contract. She places us in the "original position" behind a "veil of ignorance"--ideas synonymous with the work of John Rawls--where we don't know who we are or where we will end up in the social pecking order when the veil is lifted. Once there, we are asked to identify the principles of legitimate punishment in a non-ideal liberal democracy, one which has failed to satisfy the demands of distributive justice, and which sometimes convicts and punishes the innocent.
Scholarly efforts to deploy Rawls's method to the problem of punishment have been made before, but none, so far as I know, is as detailed, subtle, or sophisticated as that of Dolovich. I won't question the logic leading the Dolovichian contractors to the principles they ultimately embrace. Nonetheless, once the contractors step outside the original position and reflect on the principles they've adopted, it seems to me they will ultimately be disappointed.
Garvey, Stephen P., "Lifting the Veil on Punishment" (2004). Cornell Law Faculty Publications. Paper 276.
Published in: Buffalo Criminal Law Review, vol. 7, no. 2 (2004).