The fact that human fallibility virtually ensures that punishment will sometimes befall the innocent presents a theoretical puzzle to all forms of retributivism. Retributivists usually say that desert is a necessary condition for justified punishment. It remains unclear, following this view, how retributivists can support punishment in (imperfect) practice. The paper investigates a number of possible replies available to the retributivist. It concludes that one reply in particular can overcome the problem posed by fallibility, but it is not obvious that this reply is convincing.
KeywordsPenal System Innocent People Penal Practice Actual Punishment Human Fallibility
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Financial support to write this paper was provided by the Swedish Research Council and Riksbankens Jubileumsfond. I am grateful for the comments offered by audiences at the CELPA seminar at the University of Warwick, the political theory seminar at the University of Gothenburg, and the political theory workshop at the 2009 conference of the Swedish Political Science Association. In particular, I would like to thank Douglas Husak, Ann-Kristin Kölln, Sandra Lindgren, Ed Page, and three anonymous referees for helpful comments.