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A Restorative Signaling Theory of Punitive Desert by Jim C. Staihar A

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A Restorative Signaling Theory of Punitive Desert by Jim C. Staihar A A Restorative Signaling Theory of Punitive Desert by Jim C. Staihar A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (Philosophy) in The University of Michigan 2008 Doctoral Committee: Professor Elizabeth S. Anderson, Chair Professor Stephen Leicester Darwall Professor Allan F. Gibbard Professor Thomas A. Green Acknowledgements For all their comments and support, I very much thank my dissertation committee: Elizabeth Anderson (chair), Stephen Darwall, Allan Gibbard, and Thomas Green. For insightful discussion and advice on writing the dissertation, I very much thank Tom Beauchamp, Aaron Bronfman, Sarah Buss, Wayne Davis, Ed Curley, David Dick, Lee Fennell, Steven Kuhn, Saul Levmore, Eric Lormand, James Mattingly, Richard McAdams, Martha Nussbaum, Matt Pugsley, Peter Railton, Don Regan, Scott Shapiro, and Matty Silverstein. For financial support while completing the dissertation, I thank the University of Michigan Philosophy Department and Rackham Graduate School, the John M. Olin Center for Law and Economics at the University of Michigan Law School, and the University of Chicago Law School. For their special friendship and support, I very much thank Bob Darden, Chrysta Lienczewski, and my family. ii Table of Contents Acknowledgements ....................................................................................................ii Abstract ......................................................................................................................vi Chapter 1: A Restorative Signaling Theory of Punitive Desert ................................1 I. Introduction ................................................................................................1 II. A General Theory of the Justification of Punishment ..............................4 III. Presuppositions ........................................................................................5 IV. Five Theories of Punitive Desert .............................................................7 A. An Expressive Theory ...................................................................7 B. An Actual Consent Theory ..........................................................10 C. An Unfair Advantage Theory ......................................................13 D. An Annulment Theory .................................................................15 E. A Prevention Theory ....................................................................17 V. A Restorative Signaling Theory ..............................................................20 VI. Critical Discussion .................................................................................26 A. A Specific Deterrence Theory .....................................................26 B. A General Deterrence Theory ......................................................30 C. The Gradational Character of Conditions of Trust ......................33 D. Timing .........................................................................................35 E. Restorative Signaling ...................................................................37 F. The Character of Criminals ..........................................................45 G. The Death Penalty ........................................................................49 H. The Entailment .............................................................................51 I. One Problem with Defiant Criminals ............................................52 J. A Second Problem with Defiant Criminals ...................................53 K. The Authority to Punish ...............................................................56 L. Punishable Crimes .........................................................................60 M. Two Constraints ...........................................................................62 VII. Concluding Remarks ..............................................................................63 Chapter 2: On the Optimal Enforcement of a Criminal Law .....................................65 I. Introduction ................................................................................................65 II. Two Requirements of Justified Punishment .............................................69 III. The Value Requirement ...........................................................................69 A. An Egalitarian Argument ..............................................................70 B. A Prioritarian Argument ................................................................74 C. An Absolutist Argument ................................................................75 D. A Retributive Argument ................................................................78 IV. The Desert Requirement ...........................................................................81 A. An Expressive Theory ....................................................................81 B. A Restorative Signaling Theory ......................................................84 iii V. Three Objections .......................................................................................86 A. First Objection ...............................................................................86 B. Second Objection ...........................................................................87 C. Third Objection ..............................................................................89 VI. Concluding Remarks ................................................................................92 VII. Appendix .................................................................................................92 Chapter 3: A New Systematic Explanation of the Types and Mitigating Effects of Exculpatory Defenses ..................................................................................................99 I. Introduction .................................................................................................99 II. Presuppositions .........................................................................................101 III. A Taxonomy of Defenses ........................................................................103 A. Type 1 Defenses ............................................................................103 B. Justifications ..................................................................................116 C. Type 2 Defenses ............................................................................124 D. Type 3 Defenses ............................................................................134 E. Additional Types of Defenses .......................................................139 IV. Two Requirements of Justified Punishment ............................................141 V. The Value Requirement ............................................................................142 A. First Argument ..............................................................................143 B. Second Argument ..........................................................................146 C. Third Argument .............................................................................147 D. Fourth Argument ...........................................................................150 E. Fifth Argument ..............................................................................153 VI. The Desert Requirement ..........................................................................157 A. A Fairness Theory .........................................................................158 B. A Second Fairness Theory .............................................................160 C. A Third Fairness Theory ................................................................161 D. An Expressive Theory ....................................................................164 E. A Restorative Signaling Theory .....................................................167 1. Type 1 Defenses ..................................................................169 2. Type 2 Defenses ..................................................................170 3. Type 3 Defenses ..................................................................171 4. Type 4 Defenses ..................................................................174 VII. Blameworthiness .....................................................................................179 VIII. Conclusion ..............................................................................................180 Chapter 4: Forgiving Criminals: What It Means and When It is Warranted ..............181 I. Introduction ..................................................................................................181 II. A Restorative Signaling Theory of Punitive Desert ....................................185 III. Blaming Criminals ......................................................................................186 IV. Forgiving Criminals ....................................................................................187 A. The Meaning of Forgiveness ............................................................187 B. Degrees of Forgiveness ....................................................................188 C. Forgiving from Three Perspectives ..................................................190 D. Warranted Forgiveness ....................................................................191 E. The Value of Warranted Forgiveness ...............................................191 iv V. Implications
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