In addition to these formal legal consequences of a conviction, people with criminal records also face a number of informal collateral consequences, such as social stigma, family tensions, discrimination by employers and housing authorities, and financial challenges. These consequences are not imposed by positive law, but they may be permitted by or facilitated by formal legal provisions (e.g., those that give broad discretion to public housing authorities in the United States that make licensing decisions) (e.g., where laws that make criminal records generally accessible allow employers or landlords to discriminate against persons with a criminal past). There are also well-documented distressing consequences of sentencing for family members or relatives of convicts and their communities. Such informal consequences of criminal convictions seem less likely than formal legal consequences, as they are not intentionally imposed by the state (cf. Kolber 2012). Nevertheless, the informal collateral consequences of a conviction are arguably relevant to sentencing theorization, and we should consider whether, if so, such charges are relevant to the conviction (for sentencing, see § 10), or whether the state has an obligation to ensure that the burden of the sentence does not exceed the anticipated burden of the criminal conviction (see Manning 2011; Bülow, 2014; Lippke, 2017). Others offer contractual or contractual justifications for sanctions based not on the treatment to which the perpetrators tacitly consented, but on what rational agents or reasonable citizens would approve. The punishment of those who commit crimes is then permitted by the fact that the perpetrator himself, as a rational actor or a reasonable citizen, would have consented to a legal system providing for such penalties (see, for example, Dolovich 2004; Brettschneider, 2007; Finkelstein, 2011; for criticism, see Dagger 2011; see also Matravers, 2000). Still others present punishment (especially deterrent punishment) as a form of social (self-)defense – and it seems clear that defending against an unlawful attack does not mean using the aggressor „only as a means“ or not showing him the respect he deserves. (For versions of these types of arguments, see Alexander 1980; Quinn, 1985; Farrell, 1985, 1995; Montague, 1995; Ellis 2003 and 2012. For criticism, see Boonin 2008: 192-207. For a particularly complicated development of this line of thought, which bases the justification of punishment on the duties we assume by committing injustice, see Tadros 2011; for critical answers, see the special issue of Law and Philosophy, 2013.) These questions that introduce punishment have received a lot of attention in the specialized literature, and many philosophers continue to discuss them, offering various answers to the questions raised. However, the issues raised here are not the only ones.
There are many, including the role of apologies and mitigating circumstances, the use of insanity as a defence, the imprisonment of offenders, and the cultural and historical context of punishment. For example, some argue that those who willfully break the law thereby lose at least some of the rights that citizens can normally claim: their misconduct legitimizes the types of treatment (e.g., reformist or incapacitating treatment or deterrent punishment) that would normally be reprehensible as violations of civil liberties (see Goldman 1982; C Morris, 1991; Wellman, 2012; on critical points, see Lippke 2001a; Boonin 2008: 103-19). However, we must ask ourselves whether we should be so quick to exclude our fellow citizens from the rights and status of citizenship, or whether we should not seek a punishment (if it is to be justified) on which punishment can still be demanded in order to treat the punished as full citizens. (The common practice of denying incarcerated offenders the right to vote while in prison and perhaps even after release from prison is symbolic in this context: those who argue that punishment should be consistent with recognized citizenship should also oppose such practices; see Lippke 2001b; Zeitschrift für Angewandte Philosophie 2005; See also generally p. 9.) Perhaps the most common objection to the utilitarian justification of punishment is that its proponent is committed to punishing individuals in situations where punishment would be clearly morally wrong. H.J. McCloskey gives the following example: We might think, on the other hand, that the heinous nature of a crime or the existence of due process is not enough. We also need a relational account of why the international legal community – and not this or that national legal entity – has the power to hold perpetrators of genocide or crimes against humanity accountable: that is, why perpetrators must be accountable to the international community (see Duff 2010). For claims of standing to be legitimate, they must be based on a common normative community that includes both the authors themselves and those on whose behalf the international legal community holds authors accountable. (For further discussion of jurisdiction to prosecute and punish international crimes, see W.
Lee 2010; Wellman, 2011; Giudice and Schaeffer, 2012; Davidovic, 2015.) The justifications for punishment are retaliation,[15] deterrence, rehabilitation and neutralization. These could include measures such as solitary confinement to prevent the abuser`s contact with potential victims, or removing a hand to make theft more difficult. [16] Some abolitionists, however, argue that we should try to eliminate the notion of crime from our social vocabulary: we should not speak and think of „crime,“ but of „conflict“ or „difficulties“ (Christie, 1977; Hulsman, 1986). One motivation for this might be the idea that „crime“ implies punishment as an appropriate response: but it doesn`t, because we could imagine a criminal justice system without punishment. Indeed, defining something as a „crime“ implies that some form of public reaction is appropriate, since it means defining it as a kind of injustice that affects the whole community; And this implies that this response should be a condemnation, because to identify injustice as wrong is to mark it as fit for condemnation: but this public and condemning response could consist, for example, of a version of a criminal case in which the alleged perpetrator is held responsible for his alleged wrongdoing. and convicts them for this by means of a criminal conviction if proven guilty. A criminal conviction can, of course, be considered a kind of punishment: but it does not involve the kind of materially incriminating post-conviction sentence that primarily concerns criminal theorists. There are many different conceptions of what punishment is. [6] The widely accepted belief that, in most cases, the amount of the sentence should vary directly according to the seriousness of the offence. However, utilitarians and reposters have different ways of arriving at this general conclusion. Theoretical discussions on the criminal sanction and its justification generally focus on the criminal sanction in the context of national criminal law.
But a theory of punishment must also say something about its justification and justification in the context of international criminal law: how we understand the sentences imposed by tribunals such as the International Criminal Court and whether and how we can justify them. For we cannot assume that a normative theory of domestic prosecution can simply be read in the context of international criminal law (cf. Drumbl 2007). On the contrary, sentencing in the international context raises various conceptual and normative questions. Another mixed view worth mentioning is that punishment is justified in order to teach a moral lesson to those who commit crimes, and perhaps to members of the community at large (the seminal articulations from this point of view are H. Morris 1981 and Hampton 1984; for a more recent account, see Demetriou 2012; for criticism, see Deigh 1984, Shafer-Landau 1991). Like the usual consequentialist narratives, moral education recognizes that the role of punishment in reducing crime is central to its raison d`être (see, for example, Hampton 1984:211). But educational theorists also take seriously the Hegelian concern discussed earlier; They see punishment not as a way to condition people to behave in a certain way, but as a way to teach them that what they have done should not be done because it is morally wrong.
