The Poverty of Punishment: From Social Exclu­sion to Criminal (In)Justice

Lady Justice is blind. Yet a disproportionate number of the individuals on whom she passes judgment share a conspicuous commonality: they are members of groups who have been wrongly denied adequate resources and opportunities to lead decent lives, develop their moral agency, and make positive contributions to society. Many criminal law theorists agree that this raises a fundamental problem for criminal justice: punishment compounds the injustice suffered by the least well-off in society.
They disagree, however, on why criminal justice is normatively subverted by social injustice. A popular response has been to argue that the state loses the moral standing to try and convict socially deprived offenders when the state itself shares responsibility for the offence they committed, or for similar wrongs. But recent contributions to the debate have cast serious doubt on whether complicity or hypocrisy have an appreciable normative effect on state punishment. 
It is more promising to pursue a different explanation – one that focuses on the idea that state-punishment must be construed as normative repair in order to be minimally justified. Thus understood, punishment is conceptually deficient if it is imposed on an offender who has been cut loose from the political community, and who therefore lies outside the legitimate grasp of criminal justice. I develop this novel perspective on the nexus between social exclusion and criminal justice in two journal articles. One paper demonstrates that the wrong of punishing the so­cially excluded is best conceptualised by reference to the goals of punishment, rather than by transferring inter­per­sonal norms of standing to the context of state punishment. Another paper grounds this approach in GWF Hegel’s political philosophy by bringing together his theory of punishment with the paragraphs on the rabble in the Philosophy of Right (§§ 240–245).