A Restorative Signaling Theory of Punitive Desert.

Abstract

I explain why and how much criminals deserve to be punished on the basis of a novel theory of punitive desert. Criminals deserve to be punished in the negative sense that the state would not violate their rights by punishing them against their will. Explaining why this is so is challenging because punishing someone involves intentionally harming her, and people have a prima facie right not to be intentionally harmed against their will. My restorative signaling theory avoids the shortcomings but incorporates the insights of the main competing theories in the literature, including expressive, consensual, unfair advantage, annulment, moral education, and deterrence theories of punitive desert. My theory draws on the fact that when someone commits a crime without an exculpatory defense, she undermines conditions of trust, which are the conditions necessary for others' being justified in believing that she is not disposed to commit crimes. The criminal is obligated to restore such conditions because unless she does so, she will cause others to incur certain costs of insecurity. To restore the conditions of trust, the criminal must demonstrate to others that she has a good will, and to do so, she must sacrifice some of her sufficiently important personal interests for a sufficiently long time for the sake of benefiting others. According to the theory's main principle, a criminal deserves to be punished for her crime no more severely than the burdens she is obligated to undertake to restore the conditions of trust she undermined by committing her crime. The theory explains why punishments should ideally take the form of labor intensive community service performed under reasonable conditions of incapacitation. I argue that the theory best explains why the state would not be justified in punishing all criminals extremely severely even though doing so could be the most efficient means of achieving deterrence. I also argue that it best explains the mitigating effects of exculpatory defenses on how much criminal actors not only deserve to be punished, but also are blameworthy. Finally, I argue that the theory illuminates what it means and when it is warranted to forgive criminals.