Retributivists thus face a difficult challenge. Either we must go against the social grain, and perhaps our own intuitions, by insisting that a criminal offense carry the same penalty or punishment no matter how many previous convictions an offender has accrued; or we must find a way to justify the recidivist premium. I shall take the second route here by arguing that recidivism itself is a kind of criminal offense. In developing this argument, I shall rely on Youngjae Lee's insightful analysis of "recidivism as omission." I shall complement his analysis, however, by grounding it in a conception of criminal law as a cooperative practice-a grounding that Lee's defense of the recidivist premium otherwise lacks. In doing so, I shall incorporate Lee's "recidivism as omission" into the familiar theory that justifies punishment as a matter of fair play.
Copyright © 2012 Lexington Books. This chapter first appeared in Recidivist Punishments: The Philosopher's View.
Please note that downloads of the book chapter are for private/personal use only.
Purchase online at Lexington Books.
Dagger, Richard. "Play Fair with Recidivists." In Recidivist Punishments: The Philosopher's View, edited by Claudio Tamburrini and Jesper Ryberg, 41-59. Lanham: Lexington Books, 2012.
Criminology Commons, Ethics and Political Philosophy Commons, Other Public Affairs, Public Policy and Public Administration Commons, Policy History, Theory, and Methods Commons, Political Theory Commons, Social Policy Commons