Category: Punishment

How much is too much? Why defining ‘mass incarceration’ is important – and isn’t as easy as it seems

In this post, Vincent Chiao, discusses his article recently published in the Journal of Applied Philosophy on how to understand the “mass” part of “mass incarceration.”

By Our World In Data. See English Wikipedia: Our World in Data. – https://ourworldindata.org/grapher/prison-population-rate. CC BY 4.0,

The United States incarcerates more people than any other country in the world. On a per capita basis, the United States incarcerates at a higher rate than any other democracy, with the possible exception of El Salvador. Yet at the same time, a disturbingly large share of crime is never reported much less punished. This raises the simple question: how do we know when a penal system incarcerates too many people? Even as “mass incarceration” has become a staple of both academic research and political discourse over the last decade, and even as renewed attention has been paid to glaring racial disparities, the question of scale – how much is too much – has remained surprisingly elusive.

Why defining excess is not as easy as it seems.

It is tempting to think that it is sufficient to point to the sheer scale of incarceration in the United States. Tempting—but wrong. Most crimes in the United States go unpunished, including “core” crimes of interpersonal violence. According to the National Crime Victimization Survey, a third of robberies, half of aggravated assaults, and the overwhelming majority of rapes and sexual assaults go unreported, much less punished. Strikingly, one advocacy group estimates that there are approximately 433,000 sexual assaults in the United States every year, and that ‘out of every 1000 sexual assaults, 975 perpetrators will walk free.’ This implies that each year there are approximately 422,000 instances of sexual assault in which no one is held accountable. For context, that is strikingly close to the total number of people admitted to prison in 2021.

It is true that people tend to be incarcerated for longer in the United States than in other parts of the world, but that alone does not show that the United States incarcerates “too many” people. In part, this is because punishments of varying degrees of severity might all be in some sense “proportionate,” and in part because the large number of unpunished crimes creates significant headroom in incarceration rates. The United States could incarcerate many more people, and potentially incarcerate them for longer, without violating basic rights against punishing the innocent or disproportionate punishment of the guilty.

Otherwise put: incarceration rates tend to be driven more by policy than by crime. What makes this into a philosophical problem is principled disagreement about what we are trying to do when we punish people for committing crimes. Crime prevention? Reparation? Symbolic vindication? Rehabilitation? Something else? We tend to be more confident that criminals should be punished than we are as to why they should be punished. But that makes it difficult to say if what we are getting is too much, too little, or just about right.

What about crime prevention?

Crime prevention is the most common, and most popular, answer to “why do we punish criminals?” But it is easy to see why one might hesitate. “Is incarceration an efficient way of preventing crime?” quickly leads to comparing the interests of the innocent in not being victimized against the interests of the guilty in not being imprisoned. Not only is that a hard question to answer objectively, but it also involves intrusive value judgments that liberals have reason to eschew. Telling people that their safety isn’t “worth the cost” can easily sound condescending, particularly when the costs mostly fall on those who choose to break the law.

Three conceptions of excess

This presents a difficult, though not insurmountable, challenge. For starters, we could define excess incarceration in strictly Paretian terms: can we release people from jails and prisons without increasing crime? Since this approach makes some people better off without making anyone worse off, it does not require trading off different people’s interests.

Alternatively, we could consider whether alternative modes of preventing crime could substitute for incarceration, again holding crime constant. By holding crime constant, we would only be asking whether there are ways of controlling crime that have a less malign impact on people’s lives than prisons. This too does not involve weighing competing interests.

The main limitation of these approaches is that they take existing levels of criminal victimization as sacrosanct. As a result, a quite substantial degree of incarceration could potentially be justified if it prevented trivial increases in crime. That might lead us to seek a more demanding conception of excess. That will, however, require weighing competing interests – those of potential victims in not having their rights violated and those of potential prisoners in not being incarcerated. As noted, this can easily come across as condescending, and worse, as involving intrusive judgments of worth.

That said, it’s worth noting that very few people are absolutists about crime. Most of us regularly make practical trade-offs between convenience and safety, for instance, which routes we will walk, where to lock our bikes, whether to install a security system. These mundane decisions – along with jury awards, tangible costs, and survey data – reveal how people subjectively value safety versus other goods.

Such information would, of course, need to be carefully considered to control for morally salient biases. Nonetheless, the broader point is that a utilitarian conception of excess is not committed to paternalistically evaluating whether people are wrong to fear crime as much as they do. Its theory of value can be constructed from the bottom up rather than imposed from the top down. Doing so can help mitigate concerns about condescending or intrusive value judgments.

So what?

Mass incarceration is unjust. This is in part because the burdens of incarceration are unfairly distributed, but it is also in part because those burdens are excessive in absolute terms. The moral critique of mass incarceration thus depends on an analytical metric—a theory of what it is to incarcerate too many people. The metric we choose will tell us what it means to truly bring the era of mass incarceration to an end.


Vincent Chiao’s research interests are in public law, with a particular focus on the philosophy of criminal law. He is the author of Criminal Law in the Age of the Administrative State (OUP 2018). Themes in his work include the place of law in formal and informal social orders, punishment and the evolution of cooperation, and the rule of law as a social technology.

Mass Deportation and Migrant Crime

A photograph of a Trump rally during the 2024 US Presidential Election campaign. Trump is visible in the front, and behind him are several rows of fans, some holding signs including "Latinos for Trump" and !Make America Great Again" signs.
President of the United States Donald Trump speaking with supporters at a “Make America Great Again” campaign rally at Phoenix Goodyear Airport in Goodyear, Arizona. (c) Gage Skidmore

This is a guest post by Mario J Cunningham M.

“Mass deportation now!” was the omnipresent motto of banners at the 2024 Trump rallies – replacing the “Build the wall!” of 2016. The re-election of Donald Trump, who openly ran on a mass deportation platform, represents a hard blow for all those concerned about migration justice. The hardening of anti-immigrant rhetoric is now understood as a mandate in the most prominent Western liberal democracy. How should we make sense of this? Paying attention to how this policy was marketed and the role “migrant crime” played in its success sheds light on an often-overlooked normative challenge migrant advocates need to come to terms with.

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From the Vault: Justice, Democracy, and Society

While Justice Everywhere takes a short break over the summer, we recall some of the highlights from our 2023-24 season. 

A person casts a vote during the 2007 French presidential election. Rama, CC BY-SA 2.0 FR https://creativecommons.org/licenses/by-sa/2.0/fr/deed.en, via Wikimedia Commons

Here are a few highlights from this year’s writing on a wide range of issues relating to justice, society and democratic systems:

Stay tuned for even more on this topic in our 2024-25 season!

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Justice Everywhere will return in full swing in September with fresh weekly posts by our cooperative of regular authors (published on Mondays), in addition to our Journal of Applied Philosophy series and other special series (published on Thursdays). If you would like to contribute a guest post on a topical justice-based issue (broadly construed), please feel free to get in touch with us at justice.everywhere.blog@gmail.com.

When whatever you do, you get what you least deserve

In this post, David Benatar (U. Cape Town) discusses his article recently published in the Journal of Applied Philosophy on the paradox of desert, exploring the issues that arise from ‘acting rightly’ and the costs it may incur.


(C) David Benatar. Camondo Stairs, Galata, Istanbul, 2022

Imagine that you are a soldier fighting a militia that is embedded within an urban civilian population. You face situations in which, in the fog of war, you are unsure whether the person you confront is a civilian or a combatant, not least because the combatants you are fighting often dress like civilians. You can either shoot and ask questions later, or you can pause, even momentarily, to take stock, and risk being shot.

Depending on the precise circumstances, pausing may be either a moral requirement or merely supererogatory (that is, a case of going beyond the call of duty). Either way, the soldier who pauses is morally superior to the soldier who shoots without hesitation. However, there will be situations in which a soldier is killed precisely because he acted in the morally better way.

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The care perspective and the police: reform, defund or abolition?

In recent months, the police have been the object of extensive discussion and harsh criticism in the UK. The Louise Casey report published in March found the Metropolitan Police (the police service for the Greater London area) to be institutionally racist, misogynistic and homophobic. Since then, various incidents in different parts of the country – most recently in Cardiff last week, resulting in the tragic deaths of teenagers Kyrees Sullivan and Harvey Evans – have seen the police behaving in deeply problematic ways. The police have also come under attack for its behaviour towards protesters, or people believed to be such, especially during the weekend of the Coronation following the passing of the Public Order Bill. This is in the context of a crisis of legitimacy that the institution has been facing for a few years now, in part as a result of a number of other high-profile cases and investigations. The police are increasingly seen not as an institution that function to protect all citizens, but as a potential threat to members of different social groups. Scepticism about whether the police can be trusted to act lawfully and to provide truthful accounts of its activities is mounting. Mistrust towards the police is of course not in itself a new phenomenon, especially among certain sectors of society, but it has been gaining more traction in broader segments of the population.

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Selling Silence: The Morality of Sexual Harassment NDAs

In this post, Scott Altman (USC Gould) discusses his recent JOAP 2022 Annual Essay Prize winning article about the morality of sexual harassment nondisclosure agreements.

Harvey Weinstein, Chairman, The Weinstein Company
Harvey Weinstein by Thomas Hawk (CC BY-NC 2.0)

Nondisclosure agreements (NDAs) pay sexual harassment and abuse victims not to tell their stories or name their abusers. Harvey Weinstein’s many NDAs, and the #MeToo movement, spurred some states to make such NDAs legally unenforceable. 

My Selling Silence article argued in favor of these laws. Sexual wrongdoer NDAs protect abusers, endanger future victims, and undermine deterrence. The article rejected three justifications for wrongdoer NDAs, two of which I will mention briefly before explaining the third.

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More attention is being paid to formal activism. Informal activism matters too

A common complaint made about contemporary political theory is that it is far too focused on describing what a perfect society looks like, and not focused enough on exploring the means by which we are to move toward the ideal. This criticism seems to me to be basically right. But it would not be correct to say that nothing has been said about the means by which to improve society. Political theorists have had a fair amount to say about ‘civil disobedience’, for instance.

Moreover, in recent years, scholars have increasingly turned their attention to allegedly ‘uncivil’ forms of activism, from hacktivism to hunger strikes, rioting to revolution. What all of these forms of activism have in common is that they typically have laws and policies as their targets. Hence, when political theorists think about activism, they tend to have what you might call ‘formal activism’ in mind.

While formal activism is of course essential, I want to draw attention to forms of activism that have social phenomena other than law or policy as their targets. Let’s call this kind of activism ‘informal activism’. There are at least three reasons why informal activism is important. (more…)

What the pandemic can tell us about prison

In the last few months, many countries have seen the lifting of numerous Covid 19 restrictions. While the pandemic is far from over and some countries are still opting for strict lockdowns, as in the notable case of China, in most of Europe and the US it has entered a new phase in which much of what made up life before Covid has resumed, at least for most people. A progressive return to the life before is also taking place in prisons. The time is right to have a look back at the last two years to review what prisons looked like during the pandemic, and what that can tell us about this fraught institution.

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Wrongly Weeded Out: Richardson’s Removal and Unreasonable Rules

In this guest post, John Tillson and Winston C. Thompson discuss the recent case of US track star Sha’Carri Richardson’s suspension from competing at the Olympics.

Sha’Carri Richardson was suspended from the US Olympic team after testing positive for marijuana. This is ultimately because the World Anti-Doping Agency (WADA) decided to ban THC in-competition in all sports. THC (or tetrahydrocannabinol) is the main psychoactive component of cannabis/marijuana. WADA can prohibit athletes’ use of substances in order compete in the Olympics and other major sporting events such as those organized under the auspices of World Athletics. Richardson has apologized for her actions and US President Biden has commented on the case saying, ‘the rules are the rules’. (more…)

A Criminal Law for Semi-Citizens

In this post, Cristián Irarrázaval Zaldívar and Ivó Coca-Vila discuss their recent article in Journal of Applied Philosophy on how to legitimate punishment in the context of varying forms of citizenship.


Ask yourself why an English court can legitimately punish an Indonesian who committed an offence in Japan but now lives in the UK, or a Spanish judge can punish a young Senegalese criminal offender who, after months crossing through Africa, enters Spain illegally and subsists in absolute hardship hidden from state authorities. Probably your answer would be something along the lines that punishment is necessary to prevent harm. Indeed, that is how most criminal law scholars respond. However, among contemporary authors, it is increasingly common to assert that the criminal law of a given state should be applicable only to those who, at the time of the commission of the offence, had some kind of political bond with it, namely, to those who belonged to the polity as “citizens”. In our recent article, we explain why the advantages of this approach outweigh the downsides, at least as long as we take seriously the fact that citizenship is not all-or-nothing, but comes in degrees. (more…)