One of the unfortunate realities of working on philosophy of crime and punishment in the United States is that there are always new instances of police brutality, reports of abuse in prisons, and alarming executions that demand urgent and active responses, but doing philosophy feels ill-suited to respond to urgent circumstances or to mobilize people against manifest injustice. For example, on the day that I gave this paper at the Pacific APA, the trial of Derek Chauvin for George Floyd’s murder was underway. In that case, it was evident that no one needs a theory of criminal law or punishment to know that Chauvin’s actions were callous, and that Floyd could not have deserved such a death in the streets. No contemporary philosopher of criminal law or punishment would defend this murder, but neither would one need a philosopher to explain why the murder is indefensible. Though we rarely can respond with urgency, philosophers can use the tools we have to clarify important concepts that we use to interpret the world and to justify moral demands.
One example of philosophers doing just this in response to an urgent injustice is George Yancy and Janine Jones’s edited volume Pursuing Trayvon Martin. But, for the most part, contemporary philosophers of criminal law and punishment do not address the kinds of real-world problems posed by police killings of unarmed Black people, and the fact that these theories typically focus on justifying criminal law and punishments in idealized just societies is likely the reason. Notably, Tommie Shelby’s chapter “Punishment” in Dark Ghettos engages with mainstream philosophy of punishment applied in non-ideal contexts, but Shelby’s background is primarily in philosophy of race and social political philosophy, not philosophy of criminal law. Similarly, Erin Kelly’s book The Limits of Blame wrestles with questions of punishment and law enforcement in the United States, but again her background in social and political philosophy,