Raff Donelson (Chicago-Kent College of Law, Illinois Institute of Technology) has posted Pragmatism and Punishment (in Pragmatism Revisited 138–150, Cambridge University Press) on SSRN. Here is the abstract:
This paper demonstrates that pragmatism provides a valuable framework for addressing three critical issues surrounding punishment: its definition, the debates over its institutional forms, and the conceptualization of mass incarceration. First, punishment should be defined through practical criteria, such as ensuring that the Eighth Amendment to the United States Constitution is interpreted in a just fashion. Second, William James’s pragmatic method offers a way to reframe debates concerning policing and prisons. By adopting a Jamesian deflationary perspective, the tension between reformist and abolitionist positions can be understood as a debate over how to conceptually frame and discuss these institutions. Finally, the concept of “mass” incarceration is inherently normative. Natural facts alone cannot determine which levels of imprisonment are problematic; rather, identifying a system as one of mass incarceration requires the application of a normative criterion.
Recommended.
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