Theory of Punishment

In Dark Ghettos, Shelby outlines the principles of normative nonideal theory. Type 3 principles of normative nonideal theory are guided by the theory of punishment. Shelby importantly highlights that within nonideal theory there is an important question: how should society “respond to lawbreaking when the society itself is seriously unjust” (Shelby 13)? Shelby explores this in The Idea of Prison Abolition. Shelby writes that pro-prison or prison reform theories discount the normative moral concerns around imprisonment and focus on material benefits. Further, these theories “assume that the society within which imprisonment occurs is a just one (or nearly) and that the governing authority is fully legitimate” (Shelby 2). 

In order to create a substantive debate around prison reform vs abolition, the comparative justice of nonideal imprisonment must be considered. According to Shelby, there haven’t been any prominent arguments explaining how imprisonment is just in “our own unjust society” (Shelby 3). One approach is the idea of greater injustice—that it is only permissible to commit an injustice if it means preventing an even greater one. For example, if releasing a serial killer will very likely result in more deaths, then wouldn’t it be a lesser injustice to imprison him despite the nonideal criminal justice system that will imprison him? The state might be justified in using nonideal imprisonment as the lesser evil, even if the system is not fully just. While Shelby might agree with this example, it is important to note he would not consider imprisonment as just, but rather a tragic necessity of a broken world, and one we have to eventually move beyond like Plato’s Socrates says in Republic. How can we transition to a prison free society?

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