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Durham Law School

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Publication details for Professor Thom Brooks

Brooks, Thom (2014). What is Wrong about the "Criminal Mind"? Northern Ireland Legal Quarterly 65(2): 141-151.

Author(s) from Durham

Abstract

Retributivists argue for a strong link between a criminal’s mind-set at the time of an offence and our community’s response through punishment. This view claims that punishment can be justified depending on the possession of a criminal mind which can be affected by factors that may affect culpability, such as mitigating factors. Retributivism is a powerful influence on our sentencing practices reflected in policy. This article argues it is based on a mistake about what makes the criminal mind relevant for punishment. It will be argued that a currently popular view of retribution endorsed by Feinberg and Duff – ‘retributivist expressivism’ – incorrectly link punishment to a criminal’s possession of moral responsibility. This is a problem because its absence is no defence to strict liability offences, the largest subset of crimes. It is not a crime’s threat or harm to morals that is most salient, but instead its threat or harm to our rights.