This chapter rests on two assumptions, at least one of which is controversial. The first is that something is wrong when a society imprisons as many people as the United States now does. According to a widely published columnist, George Will, the rate of imprisonment was about 100 per 100,000 Americans until the 1970s. Since then the rate has shot up, to the point where "700 per 100,000" are now in prison; "America," Will reported in 2013, "has nearly 5 percent of the world's population but almost 25 percent of its prisoners." It is possible, of course, that these figures are just where they ought to be, or even too low. When a professed conservative such as Will takes them to be alarming, however, there seems little need to defend the assumption that something is amiss. The second assumption is that the principle of fair play underpins the justification of legal punishment. This assumption is clearly controversial, for only a few scholars nowadays justify punishment in terms of fair play. For present purposes, however, I shall simply point to the defenses I have offered elsewhere and respond to criticisms of the fair-play approach only in passing. In effect, I shall be presenting an oblique defense of this approach by demonstrating how it provides a helpful way of addressing the problem of excessive incarceration. In doing so, I shall also address the concern that democratic societies are especially prone to this problem because of their tendency to foster what has come to be known as penal populism. My argument is that democracy leads to mass imprisonment only when an otherwise democratic polity neglects what Albert Dzur calls the "moral dimension" of democracy: "Because citizens are lawgivers as well as law abiders, they have a special obligation in a republic to be vigilant to the possibility that their laws are unfairly burdening some over others, that their laws are exclusionary or discriminatory." Dzur makes no explicit reference to the principle of fair play here or elsewhere in his book, but I hope to show that the vigilance he calls for requires attention to that principle.
Copyright © 2016 Oxford University Press. This book chapter first appeared in Democratic Theory and Mass Incarceration.
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Richard Dagger, "Playing Fair with Imprisonment," in Democratic Theory and Mass Incarceration, ed. Albert Dzur, Ian Loader, and Richard Sparks (Oxford: Oxford University Press, 2016), 60-83.