Criminogenic Disadvantage, Recidivism, and Fair Moral Opportunity

Thu, Dec 7, 2017, 4:30 pm
Corwin 127

Benjamin Ewing, Duke University School of Law

Dr. Ewing will speak for approximately 45 minutes, with discussion to follow. 

Part of his presentation will be based on a work-in-progress, “Prior Convictions as Moral Opportunities."  Email Maureen Killeen,, to gain access to the paper.

Ewing is a Visiting Assistant Professor at Duke University School of Law.

He earned his J.D. from Yale Law School in 2011 and his Ph.D. in Politics from Princeton in 2016. He is currently developing a distinctively political theory of criminal justice founded on the ideal of conditioning punishment on the quality and fairness of each defendant’s opportunity to avoid it.

In his dissertation, “Punishing Disadvantage: Culpability, Opportunity, and Responsibility,” Ewing argues that because of social and economic conditions unfairly hostile to the development and exercise of moral agency, some criminal defendants have lacked a fair opportunity to avoid their crimes. Consequently, they have a claim of fairness to mitigated punishment even if they lack a justification or excuse for their conduct. Using an analogy between the significance of fair economic opportunity for justice in the allocation of jobs and the significance of what he calls “fair ‘moral’ opportunity” for justice in the imposition of punishment, Ewing contends that we should implement a system of compensatory affirmative action in criminal justice by mitigating the punishments of offenders who have lacked fair moral opportunity.

In a more recent work-in-progress, “Prior Convictions as Moral Opportunities,” he argues that the idea of moral opportunity also sheds light on the moral justification of recidivist sentencing enhancements. In his view, recidivists appear to have a weaker complaint about punishment than first-timers in part because we implicitly assume that crime and punishment give people valuable moral opportunities to reflect upon the sources of their fallibility as moral agents and take steps to guard against them. These opportunities help to secure them against succumbing to crime, thereby diminishing their complaint about punishment if they reoffend. This line of reasoning offers support, in theory, for recidivist sentencing enhancements. Yet it also implies that we erode an important part of the moral foundation of such enhancements when we impose prison conditions and collateral consequences of conviction on ex-offenders that thwart, rather than buttress, their opportunities to avoid reoffending.

Cosponsored by the Program in Law and Public Affairs and the University Center for Human Values