Public Right and Humane Punishment

Retribution is the strategic lynchpin for securing justice and the presumption of innocence. It is the justification that takes the criminal defendant to be a human being rather than a mere instrument of social engineering and political control. By contrast, modern, results-oriented theories of punishment—​deterrence, incapacitation, and rehabilitation—have made our institutions of criminal justice less humane in important ways. Gerard Bradley’s contemporary, detailed account of the old idea of retribution can be cashed out in legal doctrines that secure the presumption of innocence and limit the corrosive effects of strict-liability offenses. This new articulation of an old juristic concept provides a conceptual basis to roll back overcriminalization and build a humane culture of criminal punishment.