Unlocking Lex Talionis
Working Paper
Abstract:
In this paper, I operationalize the classical retributive formulation of proportionality--Lex Talionis, or “an eye for an eye”— to give some rough estimates of what it might in fact entail as a limit on the severity of permissible punishment. Despite a conservative set of assumptions that are biased against my conclusions, I show that respecting Lex Talionis would entail a radically lenient transformation of the criminal legal systems of the United States (and many other countries), reducing sentence lengths for non-homicide offenses by at least an order of magnitude.
Working Paper
Abstract:
In this paper, I operationalize the classical retributive formulation of proportionality--Lex Talionis, or “an eye for an eye”— to give some rough estimates of what it might in fact entail as a limit on the severity of permissible punishment. Despite a conservative set of assumptions that are biased against my conclusions, I show that respecting Lex Talionis would entail a radically lenient transformation of the criminal legal systems of the United States (and many other countries), reducing sentence lengths for non-homicide offenses by at least an order of magnitude.
The Libertarian Case Against Property
forthcoming, Law & Philosophy (2025) (with Adaner Usmani)
Abstract:
In this paper, we argue that right-libertarianism implies astronomically large reparations for historical injustice, undermining the existing distribution of property into perpetuity. We defend and operationalize what we call the “quasi-trustee” model of reparations under right-libertarianism. By our downwardly biased estimates, the injustice of American slavery alone calls the entire stock of global wealth into question.
forthcoming, Law & Philosophy (2025) (with Adaner Usmani)
Abstract:
In this paper, we argue that right-libertarianism implies astronomically large reparations for historical injustice, undermining the existing distribution of property into perpetuity. We defend and operationalize what we call the “quasi-trustee” model of reparations under right-libertarianism. By our downwardly biased estimates, the injustice of American slavery alone calls the entire stock of global wealth into question.
The Currency of Racial Justice
30 Legal Theory 229 (2024) (with Adaner Usmani)
Abstract:
Racial justice is widely seen as a central animating moral and political ideal of our time, especially on the liberal-egalitarian left. And racial justice goes hand in hand with racial equality. The centrality of these ideals would be hard to justify if they had no bearing on material or economic inequality, or applied solely to semiotic and cultural issues. But we argue that, at present, the only plausible basis for understanding racial equality as a distinctive aim for the economic domain—rather than a mere implication of more general egalitarian or progressive principles—depends on minimal state, right-libertarian foundations. As such, racial equality is a strange focus for the left.
30 Legal Theory 229 (2024) (with Adaner Usmani)
Abstract:
Racial justice is widely seen as a central animating moral and political ideal of our time, especially on the liberal-egalitarian left. And racial justice goes hand in hand with racial equality. The centrality of these ideals would be hard to justify if they had no bearing on material or economic inequality, or applied solely to semiotic and cultural issues. But we argue that, at present, the only plausible basis for understanding racial equality as a distinctive aim for the economic domain—rather than a mere implication of more general egalitarian or progressive principles—depends on minimal state, right-libertarian foundations. As such, racial equality is a strange focus for the left.
Abolition of What?
114 Journal of Criminal Law & Criminology 525 (2024)(with Adaner Usmani)
Abstract:
This article advances a structural theory of the brutality of the carceral state. The structural theory stands on two premises. First, we defend The Principle of Less Eligibility, which holds that it would be politically infeasible for governments to permit the expected returns of a law-defying life to exceed those of a law-abiding life in the lowest social stratum of any capitalist democracy. The Principle of Less Eligibility implies that the brutality of the American carceral state is a symptom of the clustered and concentrated disadvantage that define the American ghetto.
Second, we show that social policy is bedeviled by what we call the Efficiency-Feasibility Paradox. Hyper-targeted social policy is a much more efficient way to improve the lives of the least well-off than social programs with broad eligibility criteria. But it is politically infeasible for governments to fund hyper-targeted social programs at the scale necessary to eliminate the American ghetto. The Efficiency-Feasibility Paradox implies that the most feasible path to abolishing the American ghetto will be broad-based social democratic change.
Together, The Principle of Less Eligibility and The Efficiency- Feasibility Paradox imply that a dramatic improvement in the prospects of the least well-off is necessary to address the brutality of the carceral state; and that the most feasible path toward both goals is social democracy.
114 Journal of Criminal Law & Criminology 525 (2024)(with Adaner Usmani)
Abstract:
This article advances a structural theory of the brutality of the carceral state. The structural theory stands on two premises. First, we defend The Principle of Less Eligibility, which holds that it would be politically infeasible for governments to permit the expected returns of a law-defying life to exceed those of a law-abiding life in the lowest social stratum of any capitalist democracy. The Principle of Less Eligibility implies that the brutality of the American carceral state is a symptom of the clustered and concentrated disadvantage that define the American ghetto.
Second, we show that social policy is bedeviled by what we call the Efficiency-Feasibility Paradox. Hyper-targeted social policy is a much more efficient way to improve the lives of the least well-off than social programs with broad eligibility criteria. But it is politically infeasible for governments to fund hyper-targeted social programs at the scale necessary to eliminate the American ghetto. The Efficiency-Feasibility Paradox implies that the most feasible path to abolishing the American ghetto will be broad-based social democratic change.
Together, The Principle of Less Eligibility and The Efficiency- Feasibility Paradox imply that a dramatic improvement in the prospects of the least well-off is necessary to address the brutality of the carceral state; and that the most feasible path toward both goals is social democracy.
The Injustice of Under-Policing in America | Replication Code | Reply to Karakatsanis
2 American Journal of Law & Equality 85 (2022)(with Adaner Usmani)
Abstract:
In the United States, roughly three people are incarcerated per police officer employed. The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate. We argue that the United States has it backward. Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world. We call this the “First World Balance.”
We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration. This essay offers a preliminary sketch of some of the arguments in the book. In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor. One of us is a social scientist, and the other is a philosopher and legal scholar. Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct—but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system.
2 American Journal of Law & Equality 85 (2022)(with Adaner Usmani)
Abstract:
In the United States, roughly three people are incarcerated per police officer employed. The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate. We argue that the United States has it backward. Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world. We call this the “First World Balance.”
We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration. This essay offers a preliminary sketch of some of the arguments in the book. In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor. One of us is a social scientist, and the other is a philosopher and legal scholar. Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct—but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system.
Risk-Based Sentencing and the Principles of Punishment
112 Journal of Criminal Law & Criminology 213 (2022)
Abstract:
Many criminal justice reformers see risk-based sentencing—where an offender’s likelihood of returning to crime determines the amount of time they spend in prison—as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But, as this article shows, risk-based sentencing is indefensible—even assuming the truth of a number of controversial premises that proponents take to be sufficient for its justification. Instead of trying to cut sentences for those who are least likely to reoffend, officials should focus sentence reductions on the least well-off—who tend to be the most likely to reoffend.
112 Journal of Criminal Law & Criminology 213 (2022)
Abstract:
Many criminal justice reformers see risk-based sentencing—where an offender’s likelihood of returning to crime determines the amount of time they spend in prison—as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But, as this article shows, risk-based sentencing is indefensible—even assuming the truth of a number of controversial premises that proponents take to be sufficient for its justification. Instead of trying to cut sentences for those who are least likely to reoffend, officials should focus sentence reductions on the least well-off—who tend to be the most likely to reoffend.
The Paradox of Recidivism
70 Emory Law Journal 1209 (2021)
Abstract:
The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction.
This article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this article shows that it follows logically from fairly ordinary moral premises.
70 Emory Law Journal 1209 (2021)
Abstract:
The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction.
This article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this article shows that it follows logically from fairly ordinary moral premises.
Latinos and the Principles of Racial Demography
16 Du Bois Review: Social Science Research on Race 63 (2019)
Abstract:
U.S. federal agencies should treat Latinos as a racial or quasi-racial group in demographic data collection, rather than an ethnic or pan-ethnic group, as they do currently. Survey data must rely on self-reported racial and ethnic identification. But people often identify their own race differently from how others perceive them. In order for self-reported survey data to be useful for the enforcement of antidiscrimination law, it is important that it tracks how others perceive the respondents’ race and ethnicity, not just how they see themselves. To capture racial perceptions of Latinos, government surveys need to balance three subsidiary criteria: the promotion of self-reported racial identifications that are useful as a proxy for the perceptions of others; the ability to measure intra-group differences in how Latinos are racially perceived; and the extent to which Latinos are collectively perceived as a race. A survey format that treated Latinos as a racial group would likely be more amenable to these goals than the current format, but there are some areas, which this paper identifies, where further empirical research is needed in order to be sure.
16 Du Bois Review: Social Science Research on Race 63 (2019)
Abstract:
U.S. federal agencies should treat Latinos as a racial or quasi-racial group in demographic data collection, rather than an ethnic or pan-ethnic group, as they do currently. Survey data must rely on self-reported racial and ethnic identification. But people often identify their own race differently from how others perceive them. In order for self-reported survey data to be useful for the enforcement of antidiscrimination law, it is important that it tracks how others perceive the respondents’ race and ethnicity, not just how they see themselves. To capture racial perceptions of Latinos, government surveys need to balance three subsidiary criteria: the promotion of self-reported racial identifications that are useful as a proxy for the perceptions of others; the ability to measure intra-group differences in how Latinos are racially perceived; and the extent to which Latinos are collectively perceived as a race. A survey format that treated Latinos as a racial group would likely be more amenable to these goals than the current format, but there are some areas, which this paper identifies, where further empirical research is needed in order to be sure.
Inequality, Incentives, Criminality, and Blame
22 Legal Theory 153 (2016)
Abstract:
The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that the society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.
22 Legal Theory 153 (2016)
Abstract:
The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that the society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.
Oppositional Culture and Educational Opportunity
10 Theory and Research in Education 154 (2012)
Abstract:
The most common lay explanation for the racial gap in educational achievement in the US is the ‘oppositional culture hypothesis’, which holds that Black students tend to undervalue education and stigmatize their high-achieving peers, accusing them of ‘acting White’. Many believe that, insofar as this hypothesis is true, Black underachievement is unproblematic from the perspective of justice, because Black students are simply not taking the fair opportunities presented to them. This article offers a systematic critique of the normative aspects of this view and some conceptual clarifications regarding the nature of opportunity.
10 Theory and Research in Education 154 (2012)
Abstract:
The most common lay explanation for the racial gap in educational achievement in the US is the ‘oppositional culture hypothesis’, which holds that Black students tend to undervalue education and stigmatize their high-achieving peers, accusing them of ‘acting White’. Many believe that, insofar as this hypothesis is true, Black underachievement is unproblematic from the perspective of justice, because Black students are simply not taking the fair opportunities presented to them. This article offers a systematic critique of the normative aspects of this view and some conceptual clarifications regarding the nature of opportunity.