Punishment and democracy

Abstract

Leading contemporary branches of punishment theory stemming from the traditional schools of consequentialism and retributivism support a role for public deliberation to secure core values communicated through punishment and to encourage greater accountability for punishment practices. Drawing on Habermas’s democratic theory to develop the ideal of public deliberation, this article explores how punishment policies might be subjected to public rational-critical debate. Two contrasting cases exemplify the importance of the deliberative standards stressed by Habermas. Neglecting standards of rational-critical debate results in mere opinion rather than public opinion, the shortcomings of which are illustrated by three strikes legislation where punishment policy emerged from the public but in an unreflective way. In contrast, recent innovations in the imposition of punishment represented by problem-solving courts, like the drug, domestic violence, mental health and community courts developing in jurisdictions around the United States, show how rational-critical public debate can flourish. Habermas’s procedural theory does not advocate particular principles, but shows how civic accountability for punishment reflecting multiple values can gain deeper roots in public culture.