Criminal Justice as Fairness: A Rawlsian Approach to Justifying Criminal Punishment

Open Access
Bernicker, Brendan
Area of Honors:
Bachelor of Arts
Document Type:
Thesis Supervisors:
  • Jonathan Marks, Thesis Supervisor
  • Brady Bowman, Honors Advisor
  • Philosophy
  • Philosophy of Law
  • Punishment
  • Mass Incarceration
  • Rawls
  • Justice as Fairness
  • Criminal Justice
Mass incarceration raises fundamental questions about how a political society ought to regard those who break its laws and the limits that ought to exist on the power of the state to impose suffering and deprivation on individuals or groups. These questions address issues at the heart of political philosophy, yet that discipline has remained nearly silent on criminal punishment over the past half-century. In this paper, I offer a justification for a practice of criminal punishment that is grounded in a Rawlsian public political conception of justice. On this view, punishment exists to rehabilitate offenders and protect society. Furthermore, all of the suffering that results from the imposition of punishment must be considered in establishing a practice of punishment—including both the suffering that is experienced by offenders’ loved ones or communities and that which is imposed on offenders extrajudicially, such as through sexual or other violence during incarceration. Where this suffering can be neither justified nor eliminated, it cannot be imposed. While the argument that I offer applies to the Rawlsian well-ordered society (with its assumption of full compliance relaxed), I use the last section of the paper to discuss some ways in which the current practice of criminal punishment in the United States falls far short of the theoretical ideal and results in unjustifiable suffering and deprivation.