Political Theory

H19(a) - Justice and Punishment in Liberal Societies

Date: Jun 5 | Time: 01:45pm to 03:15pm | Location:

Chair/Président/Présidente : Jim Farney (Johnson Shoyama Graduate School of Public Policy, University of Regina)

Utilitarianism's Boomerangs and the Meaning of a Punitive Society: Chris Barker (The American University in Cairo)
Abstract: Utilitarianism’s Boomerangs and the Meaning of a Punitive Society The questions typically asked about mass incarceration are about how and when it intensified – is mass incarceration (especially in the US) a product of implicit or structural racial bias or a rise in violent crime? The War on Drugs, or policy choices such as mandatory minimums? Policing choices such as “broken windows” approaches? These are crucial questions, but the problematization of this paper is made in a different register, namely through the historical meaning of punishment within punitive societies. Analyzing these societies, Didier Fassin asks about a “penal chain” which, through ethnography, can connect elements of a system from policing and arrest through trial, conviction, sentencing, and post-release. Through this study, he asks three questions about a punitive society: what is it, who does it punish, and why does it punish? This sociological approach demotes traditional theories of punishment from their traditional place in the evaluation of punishment and draws new attention to the “how” that explains the “why” of punishment. Thus, for example, warehousing (as a "how") draws attention to the limits of stated aims such as rehabilitation (the "why"). The particular interest of this paper is the question of whether the "how" of the US’s various regional penal regimes and their pursuit of punishment can be explained as democratic or authoritarian, retrogressive or nightmarishly “enlightened” why's? Beccarian egalitarianism is criticized by James Whitman for a leveling-downward effect, leading to a US penal style of punishing all offenders as if they were hard criminals, as opposed to the leveling-up effect attributed to continental Europe and especially to Scandinavian countries such as Norway. Is the meaning of Beccarian universalism that it creates a social boomerang, rendering the entire society one where repressive punishment circulates, as Foucault thinks? Or is there a genuine problem, violent crime, and an institutionalized will to over-punish attributable to the penal populism of county-level stakeholders, as John Pfaff argues? Or is the problem authoritarianism in one or another form? The paper examines utilitarian theories of punishment and their practical commitments (Bentham, James Mill, and Beccaria) for shortcomings of policing, surveillance, and over-incarceration. The paper is then better situated to answer the following question about the boomerang effect of punishment, and of the potential social utility achieved through improving and humanizing punishment: Will Foucault’s criticisms of Bentham and Beccaria, or Beccaria’s emphasis on certainty, leniency, proportionality, and publicity, cure the US of over-punishment and help to ensure that punishment is not an “act of violence” perpetrated by the public on an individual?

Criminalizing 'Residential School Denialism': What are the Political and Academic Implications?: Frances Widdowson (Frontier Centre for Public Policy)
Abstract: In September 2024, NDP Member of Parliament (Winnipeg Centre), Leah Gazan, tabled a Private Member’s Bill – Bill C-413 - in the House of Commons to amend the Criminal Code. Its purpose was “to create an offence of wilfully promoting hatred against Indigenous peoples by condoning, denying, downplaying or justifying the Indian residential school system in Canada through statements communicated other than in private conversation”. This paper will examine the political and economic forces that created the conditions for the tabling of this bill. It will argue that this decision is the result of “truth and reconciliation” processes that have been unfolding for the last 15 years, as well as the prominence of diversity, inclusion and equity initiatives in many Canadian institutions. These processes and initiatives, this paper will show, are connected to the relativization of the concept of “truth” and the demand that the identities of oppressed groups be affirmed. Accepting these developments will have serious consequences for both freedom of expression in Canadian society and the ability of political scientists to rigorously analyze the claims being made about the residential schools.

What rights can be denied to felons?: Peter Lindsay (Georgia State University)
Abstract: Democracies commonly recognize that certain rights can be denied to individuals convicted of a felony offense. In the U.S., forty-eight states deny the incarcerated the right to vote, and only thirteen states restore that right upon release. In the rest, individuals have to wait until their parole or probation is over, or, in the case of eleven states, they may never get the right back, depending on their crime. Other examples of rights denials abound. Incarceration obviously denies any rights of mobility, and it is common that persons on parole and probation have limitations placed on travel. Incarcerated individuals also have only limited rights against search and seizure, and their rights to property are heavily circumscribed. While there exists in the United States no right to employment or housing, there do exist rights not to be discriminated against with respect to either, and these rights are heavily attenuated for many of those who have already served their prison sentence. This paper explores the justification for such rights denials. The analysis uses as its framework the common justifications for legal punishment: retributivism, deterrence, quarantine and rehabilitation. In each case I explore what the reasonable scope of punishment with respect to rights is. I will supplement this analysis with a few reflections based on eight years of teaching in Georgia’s maximum-security prisons and working with the state’s formerly incarcerated.