Theory of Punishment and New Scenarios in the Age of AI

This chapter explores the theory of punishment, considering the new challenges posed by artificial intelligence in criminal law. We examine two distinct but interconnected scenarios: AI as the perpetrator of crime and the human offender who commits a crime with the aid of AI. For the first case, we investigate whether retributive punishment can be meaningfully applied to non-human entities, assessing both its theoretical foundations and the implications of extending legal personhood to AI systems. For the second case, we analyse the rationale for punishment when human conduct is mediated, facilitated, or amplified by AI systems, with particular attention to rehabilitative goals. By comparing retributive and rehabilitative perspectives, the chapter proposes a differentiated approach to punishment that accounts for the ontological status of the offender, the social meaning of condemnation, and the preventive needs of the criminal justice system. Ultimately, the discussion explores how AI compels a rethinking of traditional punitive theories, offering new scenarios in which criminal law must balance responsibility, fairness, and technological innovation.