This Is Not Who We Are: Punishment Is Justified as Disavowal

Why is it ethically permissible for the state to harm citizens who have committed criminal offenses? The traditional answers fall short. According to newer expressivist justifications of punishment, offenses must be condemned in the appropriate way, and the appropriate way is punishment. However, the best-known versions of this type of justification cannot give satisfactory replies to two objections: offenses need not be condemned, and they need not be condemned via punishment. This Article proposes a new form of the expressivist justification which can answer these objections. A community holds certain values if the best account of why a group of people acts in a certain way is that they hold certain beliefs. Serious criminal offenses must be disavowed since otherwise it would be reasonable to judge that they are consistent with the community’s values. Disavowal must be sufficiently emphatic in order to answer the threat that the offense in question poses to the community’s values. Sufficiently emphatic disavowal of serious criminal offenses is only possible via punishment of the offender.