Why Philosophy of Crime and Punishment, Now?

I am teaching this course again. Every year it changes, and this year I hope it changes a lot. Here’s what I said about this today, our first day of classes:

Any story about crime and punishment is bound to start with a few stylized facts. Until this year, I’ve started with the same number: 2.3 million people are incarcerated in the United States, which is roughly seven times as many people as our peer nations would incarcerate if they had the same population we do. But last year something extraordinary happened: somewhere around 8% of those people were released and not replaced. We can’t be very exact because prisons across the country are not very careful about counting and reporting the number of people they imprison, but any way you slice it the pandemic has started an unprecedented process of decarceration that we’re going to be talking about throughout the semester.

I’m starting with that stat, but I could equally well start with another one: 

The FBI says that—during the first six months of this year—the number of murders in 22 cities increased by 16% compared to the same period in 2020 and by 42% compared to the first six months of 2019.


Incarceration is down. Crime is up. Could there be a connection?

First, an interlude: when I taught this course in 2019, I had a student stand up about halfway through class and loudly leave, commenting “I thought this was going to be a course on Dostoevsky’s novel.” That’s a different class. And while I can tell you that there is almost certainly not a connection between decreasing incarceration and increasing violence, that’s not really what this class is about, either.

What we will do together if you continue in this class is somewhat different. I want to remind you about something literally academic: departments and disciplines. This is a philosophy class. And there’s a difference between how we approach a problem like mass incarceration in this department, compared to how it might be approached in a political science class, a psychology class, or a history class. I have colleagues and collaborators in all of those departments—as well as Theology, Linguistics, English, Biology, Sociology, and others—who apply their disciplinary approach to this issue. Meanwhile, we all are truly colleagues and collaborators: we work together, learn from each other, and read each other’s work.

So what I want you to think about—a little bit—is what the specifically philosophical approach to crime and punishment might be. 

One specifically philosophical approach is the analysis of concepts: 

  • What is a crime? What is the relationship between crime and moral obligation? Is crime any violation of the criminal code? Or are some things outlined in the criminal code that shouldn’t be, and some things allowed by the code that ought to be criminal? 
  • Is mens rea always required for something to be criminal? What about all the edge cases in mens rea—mental illness, youth, disability, and addictions—do they excuse otherwise criminal conduct? 
  • What counts as legitimate punishment? Are capital punishment, torture, exile, incarceration, branding, public shaming, all legitimate? 
  • What obligations do we have to those we punish? 
  • What is punishment for, anyway?

I have lots of good things to read on all those questions, and lots of little lectures to give on the history of answers to these questions, and honestly I think we can’t avoid some of them. But I don’t think this is the only right way to do philosophy, and in this class I think it’s more important to start with the real questions we have about these issues and try to weave these questions into them. Maybe in the abstract caning is a potentially legitimate punishment—but in the US, given the strong association between torture and slavery, we can’t endorse it. 

Right now, today, we face multiple crises related to crime and punishment. And I believe we are obligated to think through what we are doing in response to those crises. I believe that sometimes the best philosophy on a specific question is done in some other department or discipline: the historians, psychologists, linguists, and sociologists are usually pretty good at some crucial philosophical steps that philosophers ourselves sometimes miss.

So I ask you: what questions are you bringing to the classroom?

My students’ questions

As you can see, primed with those analytic questions, my students ended up sounding pretty analytic! (Also, my handwriting is atrocious.) My humble observation is that often five groups of questions and themes emerge when I teach this class:

  1. What have we done? What is the current situation with prisons and policing? What are prisons like? What is it like to experience a violent crime? Who experiences that, and what do we do about it? What is it like to be stopped and frisked regularly? Does stopping and frisking millions of people every year reduce violence crime? What is it like to spend a month in prison? A year? The rest of your life?
  2. How did we get here? What is the cause or causes of mass incarceration—in the United States, but also in some other countries? Is it entirely white supremacy? Is it the War of Drugs?
  3. What should we hope for? Should we aim to abolish prisons and policing, or merely reform them? What are the alternatives? How do we enforce norms without an “or else”? What else has to change to change the legal punishment system?
  4. What can we do about it right now? What are the most promising policies and practices for ending mass incarceration in the United States? Do we need legal reforms, mass movements and protest, cultural and spiritual renewal, an end to capitalism, or something else entirely?
  5. What should we do with our anger, rage, and resentment?

Now look: we can’t duck the econometrics of crime and punishment. But we are going to ask some critical and philosophical questions about their methodologies.

I then led the class through some charts and graphs that debunk some of the major myths about mass incarceration in the US.

Next week? Danielle Allen’s Cuz. She’s a philosopher, after all!






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