"Punishment, Family, and State," in Larry May, et al., eds, Liberty and Equality (University of Kansas Press, forthcoming)

Several philosophers have recently sought to justify punishment on the ground that it is directed at the moral good of the offender. The moral reform theory derives a substantial part of its credibility from the analogy -- implicit or explicit -- with parental punishment. Its advocates seek to demonstrate that such punishment reflects a deep concern for the good of the offender, similar to the concern of parents who discipline their children. I shall argue that parental punishment is specifically justified by the lack of moral equality between parent and child (in the case of young children) or is crucially dependent on the emotional bond between parent and child (in the case of older children). Moreover, as soon as we come to regard our children as our moral equals, punishment ceases to be appropriate. Thus, our intuitions regarding the justifiability of parental punishment should not form the basis for a derivative intuition that state punishment for the purpose of moral reform is likewise justified.

"Punishment: An Institution in Search of a Moral Grounding," in Christine Sistare, ed., Punishment: Social Control and Coercion (Center for Semiotic Research, 1996)

Fundamentally, there are only three grounds on which punishment can be justified: that the harm it does is outweighed by some greater good; that harming offenders is good in itself; and that punishment is not properly considered a harm to the offender. Each of these positions first appears at a very early point in the history of punishment theory, and each of them has been subjected to criticisms periodically regarded as dispositive. Yet the idea that punishment might not be justified has received little attention. Typically, criticism taken to refute the currently popular theory has shifted the attention of philosophers to one of the other grounds, rather than crystallizing into opposition to the institution. In this article I suggest that this continual shifting of the moral grounding for punishment reflects a fundamental uneasiness with the institution that should be respected rather than denied. As the justification of punishment comes full circle back to the most ancient idea of all, that harming offenders is good, it is worth reexamining our commitment to the institution.

"Public Opinion, Crime Seriousness, and Sentencing Policy," (with James P. Lynch) American Journal of Criminal Law 22:703 Spring 1995

Important philosophical and methodological issues are raised by the statutory requirement that the United States Sentencing Commission consider the relevance of community opinion to its guidelines. Our analysis suggests that it is unlikely that public opinion data can play a meaningful role in sentencing policy, no matter what is taken to be the purpose of punishment. We argue that public opinion data are of small relevance to deterrent and rehabilitative purposes; the construction of retributivism to which public opinion data are most directly relevant is not a justifiable purpose of punishment; and the possibility of collecting meaningful data for more defensible constructions of retributivism is small.

"Pluralism, Integrity, and the Interpretive Theory of Law," Philosophy in the Contemporary World, vol. 1, no. 3 (Winter 1994)

In Law's Empire, Ronald Dworkin argues that the choice between conflicting interpretations of law is, and should be, influenced by the aspiration to "integrity" -- that is, the construction of law as a coherent whole, as though it were the product of a single author. I argue that, particularly under conditions where opinion on relevant issues is significantly divided, the search for a single coherent explanation of law may be seriously misleading. The idea of integrity is a principled basis for legal interpretation only where there is an underlying unity, rather than an underlying plurality. Dworkin suggests that there is a basis for striving toward such unity, and for an obligation to obey the law, in our "associative" obligations to fellow members of our political community. I argue that such obligations, to the extent that they exist, are too weak to provide an adequate basis for a moral obligation to obey the law.

"Race, Fairness, and Jury Selection," Behavioral Sciences and the Law 10:155 (1992).

The Supreme Court in recent years has made efforts to change the demographic composition of juries. These effects are in part explainable on the basis of fairness to prospective jurors; but the Court also suggests that the demographic composition of the jury is important to the fairness of the trial. In some respects fairness maybe improved by a jury demographically close to the defendant, while in other respects it may be improved by a diverse jury or a jury representative of the community. These effects occur only if there are real differences among demographic groups; however, the existence of such differences precludes the simultaneous achievement of both types of effects. Further, random selection of jurors prevents the optimization of either set of effects. I conclude that recent changes in jury selection law do not improve the fairness of the trial process, but only the appearance of fairness.