Criminal Punishment and The Protection of Rights

Regardless of the gravity of the offense, victims of crime in modern states are prohibited from seeking personal vengeance. Instead, criminal justice systems use public tax revenues to fund institutions of punishment that typically limit the autonomy, rights, and freedom of offenders. In some cases, punishment may involve harm or stigmatization being inflicted intentionally. Given that the core values of liberal democratic societies include the rights and autonomy of individual citizens, the question arises as to how such a practice can be justified. How can a government morally justify actions that restrict the rights of criminal offenders? In the literature, this problem is known as the justification problem of punishment. In attempting to solve this problem, many philosophical theories of punishment have been put forward—retributivism, rights-forfeiture theories, deterrence theories, paternalism, communication theory, moral education theory, and self-defense theories. Retributivism, which holds that offenders should be given their “just deserts,” including harsh treatment, has recently experienced a revival. Many people insist that non-retributive theories cannot morally justify criminal punishment, and that retributivism therefore provides the only acceptable solution. In practice, however, prison reforms typically aim to treat inmates more humanely. Most people view such reforms as a sign of moral progress rather than regress. A second question then arises—if it is correct to apply retributivism and give offenders their just deserts, how can we make sense of institutional reforms in which the human rights and welfare of inmates are protected to a greater degree? My research project will propose and defend a theory of criminal punishment that will help to make sense of recent prison reforms in several societies such as Norway, New Zealand, and Taiwan. Three main aspects will be considered: first, the concept or definition of punishment; second, the justification problem of punishment; and third, the relationship between the theory and the practice of criminal punishment. Existing theories provide moral justification but no practical guidance, as the practical value and feasibility of these theories are not considered by the philosophers who propose them. This work aims to provide solid theoretical foundations for developing and implementing explicit policies and reforms. To address the justification problem, and to make sense of recent institutional reform, I will propose a new theory of state punishment: the rights-protection theory. This theory holds that a citizen’s basic civil rights (typically those listed in the constitution of the state) both justify and constrain the government’s right to impose criminal punishment. I will describe this theory and then defend it against objections. I will also compare it with alternative theories and explain why the rights-protection theory is more appropriate for liberal democratic societies. I will show that, the rights-protection theory not only provides the best moral justification for such societies, but also offers them the most reasonable practical guidance for government-imposed punishment. By clarifying the overarching objectives of criminal justice, it will be possible to reform institutions of punishment appropriately to protect the rights of all citizens.