Philosophers have been offering justifications for state-based punishment since at least Aquinas. Kant famously favors the death penalty for many crimes, and Jeremy Bentham had some really creative solutions for how to punish people in a humane way. Few of those philosophers considered whether the state could lose its right to punish people for breaking the law if the state itself was failing to live up to principles of justice. As philosophers, how can we interrogate our traditional justifications of punishment, and indeed of criminal law at all, given the social circumstances of the 21st century in the United States If there are widespread injustices in the basic structure of society, does the state have the moral standing to punish wrongdoers? If the criminal law institutions are also unjust, can they legitimately punish, or are they just using brute force?
In such circumstances, who, if anyone, is still morally obligated to follow criminal laws? What if you are a member of a racial or class group that has been harmed by the state? Do you have the same obligations to follow the laws as someone who is benefitting from the unjust circumstances?
As we are looking at how criminal law and punishment can go very wrong, we will also think about what criminal looks like when it is functioning well.