ECPR

Install the app

Install this application on your home screen for quick and easy access when you’re on the go.

Just tap Share then “Add to Home Screen”

ECPR

Install the app

Install this application on your home screen for quick and easy access when you’re on the go.

Just tap Share then “Add to Home Screen”

Parental imprisonment, Social injustice, and the Right to Punish

Political Theory
Social Justice
Jurisprudence

Abstract

Several legal philosophers and political theorist have that proposed the the legitimacy of legal punishment depends on political legitimacy and social justice. If a political community (such as a state) is illegitimate or unjust, it lacks the right to punish wrongdoers. In this paper I wish to draw attention to one possible form of social injustice that results from the criminal justice system, and in turn might undermine states right to punish, namely the consequences some individuals suffer due to parental imprisonment. In assessing whether parental imprisonment may count as an injustice which calls a states right to punish into question, I discuss two possible lines of argumentation. First, one might argue as Ristroph (2016), that whether state punishment is legitimate or not, depends on whether it fulfils requirements of jus in poena proportionality. On this view, the benefits of penalties must be proportional to the collateral damage it inflicts, where this includes the burdens and consequences suffered due to parental imprisonment. Second, following Tadros (2009) one might argue that if the state contributes to, or sustain, circumstances and social conditions which are criminogenic, their right to hold individuals who are affected by these circumstances accountable is undermined. Although Tadros’ discussion is limited to social issues of poverty and distributive injustice, I argue that parental imprisonment can be understood from the same perspective, as parental imprisonment and/or the consequences associated it, give rise to risks of future delinquency (Bülow 2014; Comfort 2007; Murray 2005). Both of these views suggest that the state, in order to retain the right to punish, must at least make the effort to mitigate the negative effects of parental imprisonment. However, in contrasting these views I propose that the argument developed by Tadros gives rise to stronger duties and responsibility for mitigation compared to the one made by Ristroph. Moreover, a view similar to Tadros explains how the consequences of parental imprisonment are connected to the legitimacy of punishment, whereas Ristroph provides no clear argument to this end. By contrasting and discussing these views I also propose that the notion of social injustice present in discussion on the legitimacy of state punishment and issues of social injustice ought to include more than socio-economic aspects and not focus exclusively on fairness and justice in distribution.