Extending the Limits of Blame
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Extending the Limits of Blame D. Justin Coates1
© Springer Nature B.V. 2020
Abstract Erin Kelly’s The Limits of Blame offers a series of powerful arguments against retributivist accounts of punishment. Among these, I first focus on Kelly’s Inscrutability Argument, which casts doubt on our epistemic justification for making judgments of moral desert. I then discuss Kelly’s defense of the Just Harm Reduction account of punishment. I consider how retributivists might respond to and learn from these arguments. Keywords Erin Kelly · The Limits of Blame · Retributivism · Moral desert · Punishment
1 Introduction In her exceptionally rewarding book, Professor Erin Kelly presents a series of arguments against retributivism that expand in an ever-widening circle from theory to practice. To begin, Kelly argues that retributivist accounts of desert and criminal punishment are conceptually inadequate. She then argues that retributivism leads to a host of predictable injustices and indignities, and so it upsets rather than restores justice in the wake of criminal wrongdoing. Finally, Kelly concludes with a humane and attractive alternative to retributivism: an account of criminal justice grounded in harm reduction that would reshape not only how we think about criminal punishment but also how we enforce the criminal law in an unjust society. Alas, I am a retributivist. I am, however, not exactly happy about this fact. My consternation with the view has only been exacerbated by Professor Kelly’s trenchant criticisms. Since I cannot hope to do justice to all of the arguments and themes of the book, I want to focus on two of her main themes. The first is Kelly’s powerful Inscrutability Argument against moral desert. The second is Professor Kelly’s development of the Just Harm Reduction theory of punishment. Each of these is highly
* D. Justin Coates [email protected] 1
University of Houston, Houston, USA
13
Vol.:(0123456789)
Criminal Law and Philosophy
original and interesting, and they provide powerful reasons to be worried about retributivist theories.
2 The Inscrutability Argument In the second chapter of her book, “Skepticism about Moral Desert,” Kelly offers an epistemic argument against moral desert serving as the justificatory basis for criminal sanctions. More exactly, she argues that the bases for moral desert—the capacities that underwrite an individual’s status as a morally responsible agent— are inscrutable given the kind of evidence that is available in criminal proceedings. As a result, we cannot reliably distinguish between which defendants have excuses and which do not. This is devastating to any reasonable system of criminal punishment, which surely includes high epistemic standards for guilt as a matter of procedural justice. Since we cannot meet those standards, Kelly concludes that, “skeptical modesty about our ability to make these judgments calls into question appraisals of blameworthiness and desert closely associated with criminal punishment.” (13). The upshot, of course, is that once we emb
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