Moral Blame and Criminal Punishment

The assumption that criminal punishment should align with a defendant’s level of culpability is prevalent in court decisions, legal theories, and public opinion. In practice, however, judgments about culpability often do not line up with findings of guilt or sentencing decisions. This tension has led some scholars to propose that the criminal justice system should dispense with blame assessments altogether. While this proposal deserves careful study and can make important contributions to criminal justice reform, I believe that it should ultimately be rejected because criminal punishment is inseparable from moral blame. My argument proceeds in five steps. First, I outline the prevailing view that culpability and punishment should be aligned. In Part II, I illustrate the practical gap between culpability and punishment in criminal law, using the Supreme Court’s decision in Kahler v. Kansas, 140 S. Ct. 1021 (2020), which affirmed a radically narrow reinterpretation of the insanity defense. Third, I present the main tenets of moral responsibility skepticism, the view that no one can be properly blamed or praised for their actions and that criminal liability should not, therefore, require blameworthiness. I discuss the most compelling criticisms of the skeptical position in Part IV. Finally, I propose a compromise position, adopting some of the insights of moral responsibility skeptics while rejecting some of the more extreme calls for a complete disconnect between moral blame and criminal responsibility. More specifically, I believe that the skeptical view helps to highlight the importance of using the law effectively to prevent future crimes by addressing their societal causes. Contrary to the skeptics’ claim, however, these very aims are best served by a stronger link between moral blame and criminal punishment.