Understanding Legal Punishment: A Critical Analysis

In “The Problem of Punishment,” Boonin (2008) defines legal punishment, or punishment, as “authorized reprobative retributive intentional harm” (p. 23). Punishment must include intentional harm, which intentionally makes the offender “worse off than she otherwise would be” (Boonin, 2008, p. 7). Punishment must be only imposed by an authorized agent of the state, within their power, in order to be legal. It must be reprobative and retributive, because it is necessary to express disapproval toward the illegal offense while only harming the person or people who committed it. It does not qualify as punishment if the punishment inflicted upon an offender is missing any one of these five elements. In this book, Boonin argues that there is no good

This pro-punishment position is the most plausible because unlike Fairness-Based Retributivism, Trust-Based Retributivism, Forfeiture Based Retributivism, the Consent Solution, the Moral Education Solution, and the Self-Defense Solution, it actually justifies punishment. The whole point is to argue why punishment is morally permissible, so these solutions are useless. Furthermore, Consequentialist solutions such as, Act-Utilitarianism, Rule-Utilitarianism, Motive-Utilitarianism, and all other forms of consequentialism, do not work because they are forward-looking. Using a forward-looking approach does not make sense because we cannot punish people in the present based on the predicted the number and types of of crimes people will commit. There is absolutely no way of knowing. Consequentialism aims to provide the greatest good which is a problem because it means punishing the innocent, removing mitigating excuses, involving disproportionate punishment, or treating people as a means to achieve that. However, Desert-Based Retributivism does not remove mitigating excuses, involve disproportionate punishment, or treat people as a means. Desert-Based Retributivism is more plausible than the Reprobative Solution, the Debt-Based Solution, and Rule-Utilitarianism because it does not include an unjustified

Otherwise, the offender owes nothing if a just law was not violated. However, In cases of failed attempts, the offender still owes the victim something because risking harm makes her worse off than she otherwise would be because she was subjected to a greater risk of harm (Glasgow, 2015b, p. 11). If there was a failed attempt, the offender should still pay restitution. If she attempted to murder someone but failed, she can live far away from people to restore victim security. She can pay for the victim’s therapy sessions or for security systems to be put in their home. An airplane flying overhead risks harm to people because there is a chance that it could crash and kill them. This risk makes them worse off than if there was no airplane overhead, which means they have been actually harmed. To pay restitution to the victims, the airplanes can simply fly during designated times or on designated paths in order to restore victim security. Likewise in the cases of negligence only, risk of harm increased is actually harm. All that needs to be done is for the offender to restore the victim's’ level of