Punishing Disadvantage: Culpability, Opportunity, and Responsibility

Abstract

Punishment is a burden borne disproportionately by the disadvantaged, in part because they are at special risk of succumbing to crime. Yet intermittent academic discussions of the issue since the 1970s have failed to produce a systematic theory of criminal justice for those at unfair risk of criminally offending. In this dissertation, I develop such a theory. In Chapter 1, I review and critique existing views of the distinctive moral problem that can arise with respect to the punishment of criminals who have suffered from criminogenic disadvantages, finding some of those views to be unpersuasive, others to be unduly limited, and one—based on the ideals of fair opportunity to avoid crime and punishment—to be particularly promising but as yet underdeveloped. In Chapter 2, I analyze the limits of excuses for wrongdoing and argue that there is a morally significant form of culpability for wrongdoing that an agent can accrue despite having lacked a fair opportunity to avoid it. In Chapter 3, I develop the idea of fair “moral” opportunity by which to avoid culpable criminal wrongdoing and offer a sketch of a substantive theory of fairness in moral opportunity. In Chapter 4, I argue that the role of fair moral opportunity in the justification of punishment is analogous to the role that fair opportunity for education and training plays in the fairness of hiring practices. And I use the analogy to develop a rigorous defense of compensatory affirmative action in criminal justice, in the form of mitigated sentences for offenders who have been deprived of fair moral opportunity. Finally, in Chapter 5, I work through some institutional and constitutional difficulties that might arise were we to attempt to operationalize affirmative action in American criminal law.