Responsibility and Punishment [3 ed.] 1402041489, 9781402041488

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RESPONSIBILITY AND PUNISHMENT THIRD EDITION

LIBRARY OF ETHICS AND APPLIED PHILOSOPHY VOLUME 9

Editor in Chief: Marcus Düwell, Utrecht University, Utrecht, The Netherlands

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For My Mother Diane Bellotto Corlett

TABLE OF CONTENTS Preface Introduction

ix 1

CHAPTER 1: The Problem of Responsibility CHAPTER 2: The Problem of Punishment CHAPTER 3: Foundations of a Kantian Retributivism CHAPTER 4: Assessing Retributivism CHAPTER 5: Forgiveness, Apology, and Retributive Punishment CHAPTER 6: Capital Punishment CHAPTER 7: The Problem of Collective Responsibility CHAPTER 8: Corporate Responsibility and Punishment CHAPTER 9: Collective Wrongdoing, Reparations, and Native Americans Conclusion

11 27 49 71 107 131 147 165

List of Sources Index

231 249

183 227

PREFACE TO THE THIRD EDITION The contents of this book represent nearly twenty years of studying and assessing critically philosophical work in the areas related to responsibility and punishment theories. Certain chapters or sections of chapters of this book contain materials that I have contributed to various philosophy journals or other sources. For example, the contents of Chapter 3 consists of a revised version of an essay by the same title published in The Southern Journal of Philosophy to which thanks are expressed for the use of it herein. Substantial sections of Chapter 4 consist of my essay, “Making Sense of Retributivism,” Philosophy, 76 (2001), pp. 77-110, and gratitude is expressed to the Royal Institute of Philosophy, London, and Cambridge University Press, for use of it here. Chapter 5 is a revised version of an article having the same title forthcoming in the American Philosophical Quarterly, and gratitude is expressed to North American Philosophical Publications, Inc., for kind permission to use the contents of that article herein. The content of Chapter 7 is a revised version of “Collective Moral Responsibility,” in A. Jokic, Editor, From History to Justice (New York: Peter Lang Publishers, 2001), pp. 305-18. The contents of Chapters 7-8 are essentially revised forms of articles by the same titles from the Journal of Social Philosophy, and gratitude is expressed to Blackwell Publishers for use of both articles in this book. Chapter 9 contains substantial material from “Reparations to Native Americans?” in A. Jokic, Editor, War Crimes and Collective Wrongdoing (London: Blackwell Publishers, 2001), pp. 236-69. I am thankful to Blackwell Publishers for use of that material in this work. The “List of Sources” represents a comprehensive list of sources I have consulted over the years in my writing and revision of this book. I have made every attempt to give credit where credit is due concerning the ideas presented herein where ideas have, as far as I can discern, originated with authors other than myself. I beg the apologies of those philosophers whose work was not consulted or cited that pertains to the issues dealt with in this book. I have, however, made an ardent attempt to consult as many philosophical sources as possible that concern responsibility, punishment, and related topics. I am grateful to Joel Feinberg and Keith Lehrer for incisive comments on an early version of the contents of Chapter 4. I am grateful to Feinberg, Margaret Gilbert, Lehrer, James Nickel, and Burleigh Wilkins for helpful comments on earlier sections or drafts of Chapter 7. A section of this chapter was presented at the Conference on War, Collective Responsibility, and Inter-Ethnic Reconciliation, University of Belgrade, Belgrade, Yugoslavia, 27 June 1998. Another section

PREFACE

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was presented to The Serbian Philosophical Society, 1 July 1998. I am grateful to the participants of each session for their valuable comments, especially those from Jovan Babic, David Cooper, Aleksandar Jokic, Natalija Micunovic, Michael Slote, and Svetozar Stojanovic. For helpful comments on versions of Chapter 9, I am grateful to Robert Audi, Bernard Boxill, Anthony Ellis, Gilbert, Richard W. Miller, Jan Narveson, Nickel, Rodney C. Roberts, Slote, and Wilkins for incisive comments on earlier drafts of this chapter. Parts of this chapter in earlier draft forms were presented at the Canadian Society for the Study of Practical Ethics, Canadian Learneds Society, 1997, and at the Conference on War Crimes: Legal and Moral Issues, University of California, Santa Barbara, 1997. I am grateful to Ishtiyaque Haji who provided critical insights on the First Edition of this book by his supportive assessment of it in Mind, 111 (2002), pp. 847-52. I am also grateful to The Royal Institute of Philosophy in London for the adaptation of part of my “Making More Sense of Retributivism,” Philosophy, 78 (2003), pp. 277-85, on the nature of desert to the discussion of desert in Chapter 4 of this edition. For final proofreading and indexing of this edition, I owe thanks to Eduardo Salazar and Fernando Serrano. This edition features an updating of material on responsibility theory, a revision of some of the principles of proportional punishment in the defense of my own version of retributivism, some revisions concerning my conception of desert in light of recent philosophical work done on desert theory, a complete re-writing of the chapter on forgiveness and mercy in light of recent work done in this area, and a new chapter devoted to capital punishment. All in all, strong efforts have been made to address many of the issues found in the most recent philosophical literature on responsibility and punishment. To those who might find the contents of this book, in whole or in part, worthy of their philosophical reflection and critical scrutiny, I express my sincere gratitude, in advance, to you. J. Angelo Corlett San Diego, CA Autumn, 2005

INTRODUCTION Few social problems today seem to cause as much dissension among people as the problem of punishment. As crime rates soar in various countries around the world such as the United States of America, some of the republics of the former Soviet Union, Brasil, Colombia, the United States of Mexico, and the United Kingdom, reports of violent crimes have become commonplace. What should be done in order to solve the problems associated with crime? A comprehensive answer to this question is not offered in this book. For such an answer would not only involve providing answers to an array of sociological and psychological questions about human behavior and motivation, and how to counter-balance the myriad of motives concerning why criminals commit wrongful deeds, but it would entail a plausible theory of how we ought to act, and why, so that crimes can be effectively minimized. These and other queries concerning the solution to the problem of crime are beyond the scope of this book. Rather, this book is primarily concerned with some of the problems of responsibility and punishment, and it makes no pretensions as to how the problems of crime ought to be solved.1 Since crime is a fact of life in every sizeable society, this project takes on the task of analyzing philosophically the natures and justifications of responsibility and punishment. For if the problem of crime itself cannot be solved, the least we owe ourselves is a proper understanding of how best to respond to some crimes, and plausible reasons why punishment is either justified or obligatory to the extent that it is inflicted on responsible agents. The cluster of philosophical issues that constitute the problem of punishment has posed challenges to philosophers and legal scholars for generations, and includes such matters as Anthony M. Quinton’s2 and John Rawls’3 invaluable distinction, echoed by Stanley Benn4 and 1

Obviously, there is a sense in which punishment may to some extent and in some cases deter crime, thereby serving as a partial solution to the crime problem. However, I construe punishment in terms of the state's response to crime, rather than as a preventative solution to it. 2 Anthony M. Quinton, “Punishment,” Analysis, 14 (1954), pp. 133-142 [ cited in Joel Feinberg, “On Justifying Legal Punishment,” in Carl J. Friedrich, Editor, Responsibility (New York: The Liberal Arts Press, 1960), p. 161, note 5]. 3 John Rawls, “Two Concepts of Rules,” The Philosophical Review, 64 (1955), pp. 3-13. Pagination for purposes of this book is found in John Rawls, Collected Papers, Samuel Freeman, Editor (Cambridge: Harvard University Press, 1999), pp. 20-46. 4 Stanley Benn, “An Approach to the Problems of Punishment,” Philosophy, 33 (1958), pp. 325-41.

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INTRODUCTION

H. L. A. Hart,5 respectively, between the justification of the institution of punishment and the justification of particular forms of punishment. Under this twofold distinction of questions concerning punishment fall a number of other important queries, such as “What is the nature of punishment?” “What is the function of punishment?” “What is the legal justification of punishment?” “What is the moral justification of punishment?” “How ought punishments to be meted out?” These questions, taken cumulatively, constitute questions that some have argued are required for a theory of punishment.6 Providing answers to these and related questions concerning the problem of punishment not only reveals a conundrum of philosophical theories that compete with one another to answer plausibly the problem of punishment, but they also show how dependent at least some of the these punishment-related issues are for their answers on the concept of responsibility. Although much has been gained in the history of philosophical discussions regarding responsibility and punishment, there remain some basic confusions. In recent years, for instance, many philosophers have launched attacks against retributivism. Such critical discussions include the objections that retributivism is uniquely problematic in that it relies essentially on the dubious notion of desert, and that retributivism faces the unique difficulty of devising an adequate theory of proportional punishment. To be sure, others have even argued or implied that retributivism is implausible because it fails to account for the ideas of forgiveness and mercy, while still others seem to condemn retributivism because it entails, they believe, some notion or other concerning vengeance. These are among the most important objections to retributivism, and each requires careful consideration in order to establish the status of retributivism’s overall plausibility as a theory of punishment. In the interest of philosophical charity and fairness, I seek to defend a version of retributivism that might rightly be termed “Kantian” in that it draws significantly, though not entirely, from some of Immanuel Kant’s words on punishment. I argue that some of the previously mentioned objections to retributivism misattribute to retributivism some feature or other that retributivists neither do not nor need not hold. This is surely the case, for example, regarding the assumption that retributivism entails vengeance, that is, if Joel

5

H. L. A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), Chapter 1. 6 Jeffrie G. Murphy, “Does Kant Have a Theory of Punishment?” Columbia Law Review, 87 (1987), pp. 510-11.

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Feinberg’s7 and Robert Nozick’s8 incisive distinction between retribution and vengeance is plausible. It is also disingenuous to think that retributivist theories of punishment cannot accommodate the concepts of forgiveness and mercy and are therefore problematic on moral grounds. It is certainly conceptually possible to hold, for instance, that the state has a right and imperfect duty of justice to punish criminals, while at the same time argue that the state can exercise forgiveness and mercy toward criminals under certain circumstances of justice. One important question such a theory would face is how seriously it takes moral and legal responsibility of individuals and collectives. But we must never presume that forgiving a person, criminal or not, is always the right thing to do. Perhaps the greatest confusion in responsibility and punishment theories seems to be the assumption that retributivism suffers uniquely from the often perceived “malady” of being based substantially on the controversial notion of desert. However, there seems to be no plausible positive theory of punishment that would not base itself on the concept of desert. For if it did not, then it would be subject to the problem of justifying the state’s inflicting hard treatment on innocent persons, i.e., those who do not deserve hard treatment. In Rawls’ words, it would justify the infliction of “telishment” (e.g., punishment of innocent persons).9 So whatever turns out to be the most (and adequately) plausible analysis of the nature of desert seems to be foundational to any plausible positive theory of punishment. And if there are difficulties with the notion of desert, they do not plague retributivist theories alone. What theory of punishment, in other words, would dare insist that desert is not essential to who is and who is not rightly punishable? The real question about desert is not whether or not it is crucial to a plausible theory of punishment, but precisely what is the nature of desert? To this end, I proffer my own analysis of desert as moral responsibility coupled with proportional punishment. The details of this concept are worked out in Chapter 4. Similar things might be said of the objection to retributivism concerning proportional punishment. It is a grand confusion indeed to think that only retributivists face the daunting challenge of having to provide a plausible account of proportional punishment. Of course, what counts as proportional punishment is linked to the idea of desert. For the extent to which a criminal 7 8

9

Joel Feinberg, Editor, Reason and Responsibility (Belmont; Dickenson Publishing Company, Inc., 1965), pp. 296-99. Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 366-68. The more general point that punishment is not revenge is made in Ted Honderich, Punishment, Revised Edition (London: Penguin, 1976), p. 14. Perhaps what Rawls has in mind here are the words of F. H. Bradley: “Punishment is punishment only where it is deserved” [F. H. Bradley, Ethical Studies, Second Edition (Oxford: Oxford University Press, 1927), pp. 26-7].

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INTRODUCTION

ought to be punished should always be a matter of what she deserves, as opposed to what she does not deserve. Moreover, it is interesting to note that retributivists such as Kant have not directly devoted as much of their writing to the problem of proportional punishment as the utilitarian Jeremy Bentham. Clearly, any positive theory of punishment, retributivist or not, must concern itself with the nuances of proportional punishment. As with the concept of desert, so with the concept of proportional punishment: the question is not so much whether or not a theory of punishment ought to provide an account of proportional punishment. Rather, the more important question is which analysis of proportional punishment is most plausible, and why? Furthermore, can retributivist theories of punishment be made congruent with the most plausible account of proportionality? In Chapter 4, I discuss some issues of proportional punishment, and provide a set of principles that are designed to serve as a propadeutic to thinking about proportional punishment from a retributivist standpoint. Having noted some of the clarificatory contributions of this book, I now turn to a summary of the general flow of argument herein. The basic argument of this book will be that the anti-retributivist arguments considered herein either commit a straw person fallacy, refuting a version of retributivism that is so extreme that not even Kant (in the minds of most philosophers, a paradigmatic retributivist) would subscribe to it, or that such objections count equally against every positive theory of punishment (or both). After warding off some of the most important criticisms of retributivism, I set forth a Kantian version of it that, though somewhat less stringent than Kant’s in at least some vital respects, nonetheless evades the objections typically raised against retributivist theories. Indeed, the concept of desert as responsibility and proportional punishment forms the basis of my version of retributivism. In fact, these concepts form the basis of any plausible theory of punishment! Another consequence of my argument is that if it is plausible, it reveals a striking fact about much of what has transpired in punishment theory in recent decades of philosophical analysis. More specifically, in Chapter 3 I argue by way of primary textual evidence that Kant is not as “pure” a retributivist (of the anti-utilitarian variety) as many think he is. Instead, he makes, at least by way of implication, a key concession to considerations of social utility in his view of what justifies both the institution and particular forms of punishment. If this is true, then it is incorrect to state, as many do, that Kant is the arch-defender of the narrowest or purist kind of retributivism as an anti-utilitarian view of punishment. Kant, then, seems to be more of a retributivist of a “mixed” or impure type. And classifications of Kant into the pure retributivist camp are simplistic readings of the entirety of what Kant wrote about punishment. Subsequently, I argue that the same conditions of responsibility in individual cases are precisely the same ones that serve as the basis of collective

INTRODUCTION

5

responsibility for purposes of morality and the law. I consider and ultimately reject proposals that collective responsibility can accrue to aggregates or random collectives in favor of a position that collectives are rightly held accountable for their harms to the extent that they are conglomerates with decision-making structures and the like. Not only, then, does my analysis uniquely place moral responsibility theory at the heart of what justifies punishment (normatively speaking), it extends the analysis of responsibility and punishment to certain kinds of collectives. All the while, my theory of punishment reflects a uniquely nuanced Kantian version of retributivism. My theory of retributive punishment provides answers to some important questions about punishment, questions pertaining to the nature of punishment, its justification, the conditions of criminal responsibility, and some related matters. For instance, insofar as the justification of the institution of punishment is concerned, the reason why the state ought to punish is because offenders deserve it. What does it mean to say that an offender deserves punishment? It means, concisely, that to the extent that an offender is responsible for her offence, she should be punished in proportion to her harm to others. What does it mean to say that an offender is responsible for her harm to others? It means, generally, that she was at fault in acting, failing to act or attempting to act wrongfully and harm others, and that she has done so intentionally, knowingly, and voluntarily. And it is the extent to which she acts in these ways that she may and ought to be punished for her wrongful harm to others. However, offenders ought to be punished, but they ought not to be punished disproportionately to the harm they have wrongfully caused to others. This is not intended to advocate a strict or exact proportionality between criminal harms to others and punishments. Instead, my theory of punishment, not unlike Kant’s, holds to an approximate proportionality concerning punishment. But principles to guide proportional punishment are needed, and I provide and explore the plausibility of a number of such candidate principles. A handful of such principles are articulated, discussed and some are accepted as being worthy of being adopted by a reasonably just legal system. This deontological feature of my theory of punishment makes even more obvious its Kantian influence. Subsequent to proffering a defence of a Kantian retributivism, I explore the nature and plausibility of forgiveness and mercy. Some different conceptions of forgiveness are evaluated critically until a reasonable understanding of the possible nature and function of forgiveness and mercy in a legal system emerges. A new “offender-centered” analysis of the nature of forgiveness is explicated in terms of the concept of an apology. Forgiveness requires a genuine apology, though a true apology in no way makes forgiveness necessary from the moral standpoint. Forgiving is something altogether different. Anyone

6

INTRODUCTION

can forgive others as s/he pleases. But this in no way entails forgiveness. The words and even actions of forgiving oneself or others are not performatives, as is sometimes thought by certain philosophers who espouse quasi-religious metaphysical beliefs about forgiveness and reconciliation. As philosophers, we must not presumptuously assert that forgiveness aims at or entails reconciliation. Nor ought we ever to assume without adequate argument that forgiving self or others is in itself morally virtuous. Such assumptions beg important questions against punishment itself, or against certain kinds of punishments. In Chapter 6, I set forth a basic argument in favor of capital punishment. I then raise several objections to it. In the end, it will be argued that the demands of responsibility and proportionality require capital punishment in particular cases. That is, to the extent that an offender illicitly takes the life of another agent and to the extent that she does so while satisfying strongly each of the conditions of responsibility, that is the extent to which she deserves capital punishment. Under such circumstances, to not punish her with death would be to ignore considerations of responsibility and proportionality, e.g., desert. Indeed, it would be unjust. In Chapter 7 the shift turns to matters of collectives. What is a collective? Ought certain of them to be held accountable for what they do to harm others wrongfully? If so, under what conditions should they be held responsible, and why? I set forth and defend the first full-blown philosophical analysis of the nature of collective (moral) responsibility. The basic conditions of collective moral responsibility parallel those of individual moral responsibility, and there is an important distinction drawn between the question of whether or not decision-making collectives typically do satisfy such conditions (and, if so, to what extent) and the question of whether or not they can be re-made too. Much confusion in responsibility theory results from not respecting this distinction. With the notion of collective responsibility in place, in Chapter 8 I set out to apply this analysis to cases of corporate-collective harmful wrongdoing. Of course, in cases of collective harmful wrongdoing the range of what the state can and ought to do is different in kind than with individual harmful wrongdoings. Although certain responsible corporate-individuals might be imprisoned (even put to death, on my view) for harms they have caused to others wrongfully, the collective to which the most guilty members belong is subject to be forced to pay compensation for damages, assuming that it is truly responsible for a wrongdoing. Its deeper pockets become the state’s target of retribution. Thus the category of punishment takes on a broader meaning as it pertains to the corrective justice of collectives such as corporations. While corporate veils can and sometimes should be pierced in order to punish certain corporate-individuals most directly responsible for harmful wrongdoing, the

INTRODUCTION

7

corporation qua corporation cannot be punished physically (in the strict sense of “punishment”), but instead must be forced to pay compensatory damages. But what about states? Should they be held accountable for the atrocities they commit against others? Recent cases of state harms to others concern Serbians and Albanians, and even U.S. soldiers and Albanians. These cases raise the issue of war crimes and reparations for such crimes. Other historical instances of where states have been held accountable for war crimes and crimes against humanity include Nazi Germany’s genocide of millions of Jews, homosexuals, and others deemed “undesirable” by the Nazi regime. These crimes, along with the examples of when the U.S. permitted, even encouraged, the enslavement of millions of Africans and thousands of Native Americans for generations. Millions of such persons were killed and tortured in those tragic incidents, yet no reparations have been paid to African Americans,10 and very little has been done to adequately compensate Native Americans for the holocaust and land theft that took place in many instances by the U.S. government. It is this latter case that forms the focal point of Chapter 9 where the case for reparations to Native Americans is set forth. Several objections to such compensatory justice are considered and then rejected for a variety of reasons. In the end, some policies of reparations to Native Americans are outlined, each one rejected as being inadequate as a mode of compensation. None comes close to proportional compensation for the harms done. Indeed, one is left with the realization that, though considerable means of compensation to Native Americans and African Americans might become realized in a state which genuinely respects those against whom it has engaged in genocidal acts, it is transparent that the U.S. was not, is not, and is unlikely to become such a rights-respecting society when it comes to its paying the tragic debts that it owes to the millions of the descendants of those murdered by U.S. armed forces. In this respect, the U.S. seems to qualify as what Rawls terms an “outlaw state.”11 In sum, this book discusses philosophically the concept of punishment in a manner that binds it inextricably to that of responsibility. As a version of retributivism gradually emerges, it becomes clear that the concept of responsibility forms the basis of the content of desert claims in criminal justice contexts. But responsibility also serves as the ground for sentencing for the same retributivist, as criminals are to be punished to the extent that they wrongfully harm others, and (when possible) in similar ways that they harm others. In other words, criminals are to be punished in proportion to their wrongful harms to 10

For a discussion of this point, see Roy Brooks, Editor, When Sorry is Not Enough (New York: New York University Press, 1999), Parts 6-7; Randall Robinson, The Debt (New York: Dutton, 2000). 11 John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999).

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INTRODUCTION

others wherein by “harms” is meant to include actions, omissions and attempted actions. And this holds true both for individual criminals as well as corporate or other decision-making collective offenders. The concept of desert, then, is based on the dual concepts of responsibility and proportionality. When I say, for instance, that Susan Smith (the South Carolina mother who was found guilty of the murder of her two infant children by drowning them in a lake by way of locking them in her automobile, strapped to the back seat) deserves capital punishment because she murdered her two children, I mean that she is sufficiently responsible (ceteris paribus) such that some form of capital punishment is what would be proportional treatment for what she did to the children, and to others. The contributions that this book seeks to make to both responsibility and punishment theories include the following. First, although this project does not intend to make a contribution to contemporary moral responsibility theory itself, it seeks to conjoin directly and substantively the discussion of moral responsibility theory to punishment theory.12 In so doing, it suggests the broadening of the analysis of moral responsibility to include the concept of epistemic action (e.g., acting knowingly) in order to make it applicable to U.S. (and perhaps to other) legal contexts of punishment. I argue that the complex notions of criminal responsibility can be articulated more deeply in terms of the metaphysics of moral responsibility theory. Second, this book analyzes the nature of desert in terms of the fundamental concepts of responsibility and proportional punishment. Third, it provides a novel and morally challenging analysis of the nature of an apology, one which serves as a necessary condition of forgiveness, a forgiveness which is under no circumstances morally obligatory. My distinction between forgiving and forgiveness demonstrates the differences between my analysis of forgiveness and other conceptions of what is often claimed to be forgiveness, but is really a form of forgiving. Fourth, this project seeks to set straight the main issues pertaining to the morality of capital punishment. Fifth, this book seeks to provide and defend a new analysis of collective responsibility that is applicable to U.S. law and perhaps to other legal systems, both in terms of corporate-collective harmful wrongdoing and crimes committed by states against others. Substantial philosophical energy is devoted to the matters of compensatory damages owed by corporate-collectives that are, 12

Perhaps it is arguable that the very placing of the basics of moral responsibility theory, a genre of philosophical-ethical literature which has been grounded in metaphysical concerns about human freedom and unfreedom, into the context of collective moral and legal responsibility theories is itself a contribution to moral responsibility theory and to punishment theory in general. If so, I gladly accept my making this contribution both here and elsewhere. However, my claim is simply that I do not intend to make a contribution to (individual) moral responsibility theory or to punishment theory at the level of specific argumentation and analysis.

INTRODUCTION

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say, criminally negligent or otherwise liable for harms, and countries which are responsible for criminal wrongs against others. Indeed, perhaps no other philosophy book on punishment from a Western perspective devotes so much attention to matters of corporate responsibility and punishment (compensation), as well as to the problem of reparations.

CHAPTER 1 THE PROBLEM OF RESPONSIBILITY The purpose of this chapter is to establish the conceptual framework for, and articulate some of the pivotal assumptions of, this book. It attempts to set the stage for the analyses and arguments that follow, pointing the reader in the basic direction in which the philosophical discussion will ensue. It contains some general remarks about the metaphysics of human action, and concludes with a concise sketch of what is meant by “moral responsibility,” a conception which can and ought to undergird legal conceptions of criminal (liability) responsibility. To be sure, some crucial questions of punishment are quite contingent on answers obtained from moral responsibility theory. For example, that a criminal qualifies as punishable depends in part on the extent to which she committed (or failed to commit or attempted to commit, as the case may be)1 a harmful wrongdoing responsibly, which at least means that she acted knowingly, intentionally and voluntarily. Moral responsibility theory has focused significantly and directly on the nature of a moral agent's acting intentionally and voluntarily and the extent to which that would make one a morally responsible agent.2 Traditionally and philosophically speaking, it is held that a moral agent is properly construed as a morally responsible one (liable to praise or blame, reward or punishment) to the extent that she is a voluntary agent. Generally, to be a voluntary agent, one must, on the traditional view, be able to do otherwise even in a context of voluntariness-reducing factors.3 The concepts of responsibility and punishment are related. They imply each other, though perhaps not in a strictly logical sense. The notion of punishment implies that if criminals are to be punished, then they must be responsible agents, contrary to an act utilitarian theory of punishment. Thus responsibility is at least a necessary condition of punishment. Moreover, unless one is a punishment skeptic of the abolitionist variety, it would appear that whatever is plausibly argued of the nature and scope of legal responsibility ought to imply 1

For an account of equal punishments for failed attempts, see Joel Feinberg, Problems at the Roots of Law (Oxford: Oxford University Press, 2003), Chapter 4. 2 There is even an increasing concern in moral responsibility theory about a moral agent’s acting knowingly, e.g., of epistemic states. 3 For a discussion of a range of voluntariness-reducing factors, see Joel Feinberg, Harm to Self (Oxford: Oxford University Press, 1986).

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something about the punishability of a criminal, given the facts of the case. It would appear, moreover, that legal responsibility ought to be construed in such a manner that it is congruent with the nature of moral responsibility such that a general account of responsibility is co-terminus with the grounds that would morally justify the state’s right and/or duty to punish criminals. But as Joel Feinberg points out: Determining legal responsibility in problematic cases often comes down to the questions of who ought to pay or who ought to be punished and how much. These questions are rendered problematic by conflicting interests and principles of justice, and the answers to them usually depend on what the judge takes to be the “ends” or “purposes” of compensation or punishment.4 Not only does legal responsibility admit of complexity, but so does moral responsibility. Ultimately, “...the precise determinability of moral responsibility is an illusion...” 5 However, the fact that the boundaries of moral responsibility are not completely discernable does not imply that no one is morally responsible, or that we cannot say rather meaningful things about that of which moral responsibility consists. Nonetheless, we must bear in mind Feinberg’s cautions about legal and moral responsibility. For both admit of deep complexity. Without attempting to resolve or even address the several intricate and worthwhile issues argued in moral responsibility theory during recent years, I will bring together in this chapter some of the important features of what a plausible (positive) account of responsibility would entail. One assumption here is that moral truth is determined by what the balance of human reason tells us about matters of responsibility, and that whatever the most plausible moral responsibility theory tells us about the nature of human accountability (praiseworthiness or blameworthiness) is what the criminal law ought to embrace, at least as much and as well as would be reasonable and practicable. Here I want to focus on the more serious kinds of cases of responsibility rather than the minutia of culpable actions. Furthermore, when I use the phrase “action” and its cognates, I mean to use this as shorthand for actions, omissions (negligence) or attempted actions, as the case may be. For if (positive or negative) responsibility accrues at all, it accrues to us on the basis of omissions and attempts as well as actions. With Jeffrie G. Murphy, I further assume that it

4 5

Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p. 27. Feinberg, Doing and Deserving, p. 37.

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is the legitimate business of the state to punish by way of the criminal law.6 Finally, I assume that actions are those doings or doing-related events that are motivated or are the result of our wants and desires.7 Each of these claims deserves intricate and rigorous philosophical attention. However, none will receive attention in this book. DESIDERATA OF A THEORY OF RESPONSIBILITY In order to guide our philosophical thinking about responsibility, it is helpful to consider various desiderata of a plausible theory of responsibility. Desiderata of a plausible theory of responsibility include the following. First, it is desired that such a theory have a purpose, for instance, to serve as part of the foundation of the elucidation of a theory of punishment. This is certainly the point of my treatment of responsibility. Without a purpose or aim, philosophical analyses seem often to be lost or even pointless.8 Thus there needs to be an aim of a responsibility theory, preferably an explicit one. Second, it is desirable that a plausible theory of responsibility set forth and defend the conditions under which an agent is rightly held accountable, even punishable, for her actions. In so doing, a theory of responsibility serves the function of grounding a theory of punishment’s justification. Third, it is desired that a theory of responsibility distinguish between the different uses and senses of “responsibility” in order not to conflate such uses and senses. It is crucial to keep in mind that it is a specific but complex kind of responsibility that is the foundation of justified punishment. Fourth, it is desired that a theory of responsibility respect the distinction between moral and legal responsibility.9 What amounts to moral responsibility and what amounts to legal responsibility are in many respects congruent with one another. However, there are cases in which, say, criminals are legally responsible for actions for which they would not be morally responsible. The legal category of strict liability serves as one obvious instance along these lines. 6

Jeffrie G. Murphy, Retribution Reconsidered (Dordrecht: Kluwer Academic Publishers, 1992), p. 15. I do recognize, as R. A. Duff insightfully notes, that a comprehensive theory of punishment ought to provide a moral justification of the state’s right to punish offenders [R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), p. 25. 7 Alvin I. Goldman, A Theory of Human Action (Princeton: Princeton University Press, 1970). Of course, there is a wealth of philosophical literature challenging this sort of analysis of the nature of human action. But a discussion of this analysis is beyond the scope of this project. 8 Keith Lehrer, Theory of Knowledge, Second Edition (Boulder: Westview Press, 2000), p. 7. 9 For a discussion of legal and moral concepts of responsibility, see Peter Cane, Responsibility in Law and Morality (Oxford: Hart Publishing Company, 2002). For a review of Cane’s book, see J. Angelo Corlett, “Review of Cane, Responsibility in Law and Morality,” Mind, 112 (2003), pp. 328-31.

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For purposes of public safety the law sometimes holds responsible those who have the power to effect change given their role responsibility for something, even though they have little or no causal connection to a particular untoward event the harms from which the law seeks to protect citizens. Not only are there cases of legal responsibility that do not amount to moral responsibility, there are instances where one is morally responsible for something that the law, for whatever reasons, refuses to disallow by way of legislation. An example would be categories of conduct that fall under the rubric of “there ought to be a law!” But for whatever reasons, there is no law prohibiting such conduct. Perhaps one might argue that smoking in public ought to be made illegal (because it wrongfully harms others by setting back their legitimate interest in good health), in which case those who smoke would be held legally responsible for their wrongdoing. However, as things currently stand, smoking is banned only in particular regions (in the U.S., for instance, in California), and only inside public buildings and within a short distance from such buildings. Thus there are instances of legal responsibility that do not add up to moral responsibility, and there are, it might be argued, cases of moral responsibility that are not supported by law. Furthermore, there are essentially hard cases in which morality and the law conflict.10 THE USES AND CONTEXTS OF “RESPONSIBILITY” What are the different uses of “responsibility,” and what are the contexts of responsibility? Black’s Law Dictionary11 defines “responsibility” as “liability…a person’s mental fitness to answer in court for his or her actions…” and “liability” as “The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.” Most of these aspects of responsibility are captured in ordinary usage, where “responsibility” and its cognates are used to refer to a variety of things. At times “responsibility” is used to refer to obligations or duties one has, such as when “She is irresponsible” or “You cannot be trusted because you are not responsible” is uttered. Moreover, university professors have professional roles that hold them accountable for certain behaviors in

10

An example of such a hard case, in U.S. law, would be whether or not the First Amendment to the U.S. Constitution ought to protect hate speech. For a philosophical discussion of this problem, see J. Angelo Corlett and Robert Francescotti, “Foundations of a Theory of Hate Speech,” Wayne Law Review, 48 (2003), pp. 1071-1100. 11 Bryan A. Garner, Editor in Chief, Black’s Law Dictionary, Seventh Edition (St. Paul: West Group, 1999).

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certain situations as defined by institutional rules. These are examples of the duty use of “responsibility.”12 Moreover, there is the causal use of “responsibility.” I am responsible for an outcome in the causal use if my action is in some significant way the result of what I did, failed to do or attempted to do or if what I did, failed to do or attempted to do was a contributory cause of that outcome. We often assign causal responsibility to events (economic problems in society, winning athletic competitions, etc.) or persons (public officials, athletes, etc.). To say that I am responsible for a certain outcome in the causal use constitutes a “straightforward ascription of causality.”13 There is also the praise use of “responsibility.” This use of “responsibility” places a moral judgment on its subjects. Unlike the duty or causal uses of “responsibility,” the praise use ascribes accountability to someone for what she did, where what she did was praiseworthy. For example, when I say, “You are responsible for saving the drowning child!” I am ascribing to you an accountability for your heroic action for which you should be praised and perhaps rewarded. Moreover, there is the blame use of “responsibility,” the use of the expression that attributes accountability to those who are blameworthy for what they do. The blame use of “responsibility” is exemplified in the accusation, “Former U.S. president Andrew Jackson is significantly responsible for the attempted genocide (though not merely attempted genocide, as his actions actually led to the murders of thousands) of Native Americans in the U.S..”14 12

Hart calls this “role responsibility” {See H. L. A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), Chapter 9 [Compare Kurt Baier’s notion of “taskresponsibility” in Kurt Baier, “Guilt and Responsibility,” in Peter A. French, Editor, Individual and Collective Responsibility (Cambridge: Schenkman Publishing Company, 1972), p. 52]. This notion of responsibility is also captured by R. S. Downie when he writes: “When collectives act individuals act, but those individuals act in roles whose capacities are defined by the nature of the collective. . . . Individuals are authorized by their collectives to act in certain ways, depending on the function of the collective” [See R. S. Downie, “Responsibility and Social Roles,” in Peter A. French, Editor, Individual and Collective Responsibility (Cambridge: Schenkman Publishing Company, 1972), p. 70]. I do not, however, wish to imply that there are not important distinctions between this duty use of “responsibility” and the duties that are implied by rights (given the correlation, however imperfect, between rights and duties). Surely the duty I have in virtue of my role or position is not necessarily implied by another's having a right, moral or otherwise, that holds against me at that time. Nor do I wish to discount the important distinctions that have been made between duties and obligations [See Richard B. Brandt, “The Concepts of Obligation and Duty,” Mind, 73 (1964), pp. 374-93; E. J. Lemmon, “Moral Dilemmas,” The Philosophical Review, 71 (1962), pp. 139-58]}. 13 Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p. 130. 14 Indeed, this is an example where blame and role uses of “responsibility” are conjoined. For it was by virtue of his role as Commander-in-Chief of the U.S. Army that Andrew Jackson was responsible for the carrying out of part of his campaign promise to commit genocide against Native Americans in that they stood in the way of “Manifest Destiny.”

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It is assumed that the person who is responsible in the blame use of the term is one who, if certain other conditions are satisfied, is a candidate for moral censure and/or punishment and that they are at fault in what they did. Thus to say that one is responsible for an outcome in the blame use amounts to an “imputation of fault.”15 Similarly, when I say, on self-reflection, that I am morally liable for an outcome, I mean that the weight of moral reasons supports the claim that I am to be held liable to punishment or sanction for my part in causing the outcome. Barring strict liability, then, liability responsibility seems to entail, at least in most cases, causal responsibility. Finally, there is the liability use of “responsibility.” This is closely related to the blame use. However, an outcome might be “one’s fault,” yet one is not subject to sanction for it, given, say, that the amount of damage or harm in the given case is negligible. The liability use describes someone who is punishable, an appropriate candidate for punishment or compensation due to negligence. When I say that “Former U.S. president Andrew Jackson is significantly responsible for the attempted genocide of Native Americans in the U.S.,” I mean that he ought to have been punished severely for his actions (assuming due process, of course).16 I have ascribed liability17 to Jackson. It is clear that various uses of “responsibility” may be linked in a single use, such as when I say that “Various executives of the large U.S.-based tobacco companies are responsible for deceiving the U.S. public and profiting unjustly from such deception.” Here the causal, blame and liability uses of “responsibility” are combined. Or, when I say, “You acted responsibly,” I may be combining the duty and praise uses of “responsibility.” There are additional distinctions among the uses of “responsibility:”18 retrospective, prospective, and tout court. Of these three, I am primarily concerned with retrospective responsibility, or responsibility for what one did in the past and/or for what one is doing in the present. But as Joel Feinberg reminds us, I can be responsible for something where “something” is located in the future, which at times can be understood in terms of liability.19 Finally, I can be responsible “on balance,” which either ascribes or describes my excellence of character. This is responsibility tout court, where I am a responsible person, not necessarily responsible for anything.20 15

Feinberg, Doing and Deserving, p. 136. Hart refers to this use of “responsibility” as “liability responsibility” (See Hart, Punishment and Responsibility, Chapter 9). 17 Feinberg, Doing and Deserving, pp. 136-39. 18 For an alternative categorization of responsibility types, see Baier, “Guilt and Responsibility.” 19 Joel Feinberg, “Responsibility for the Future,” Philosophy Research Archives, 14 (1988-89), pp. 93-113. 20 Joel Feinberg, “Responsibility Tout Court,” Philosophy Research Archives, 14 (1988-89), pp. 74-92. 16

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Not only are there different ordinary language uses of “responsibility,” there are different contexts of responsibility. There is legal responsibility, which is when one is properly judged responsible for something according to the rules of a legal system. U.S. law, for instance, has different conditions for criminal responsibility than it does for tort liability. Since this book is primarily concerned with responsibility and punishment for crimes, an (albeit rather concise) account of criminal responsibility is helpful. The elements of criminal responsibility include: actus reus (a voluntary physical or bodily act, omission or attempt by the defendant); mens rea (the defendant’s intent or state of mind at the time of the act, omission or attempt); concurrence between the defendant’s actus reus and mens rea; and a harm caused by the defendant’s act, omission or attempt. Some crimes, such as receipt of stolen property, require proof of “attendant circumstances” as well. Of course, mens rea is not required in cases of strict liability. Whereas the mens rea element is often one of general intent or a defendant’s awareness of all factors (e.g., attendant circumstances) constituting a crime, there are numerous instances of “specific intent” crimes: solicitation, attempt, conspiracy, first degree premeditated murder, assault, larceny, robbery, burglary, forgery and embezzlement come to mind here. Some statutes require that a defendant act purposely and/or knowingly. By “purposely,” the law means that a defendant acts such that it is her conscious object to engage in certain conduct or cause a certain result. By “knowingly,” it means that a defendant is aware that her conduct is of that nature or that particular circumstances exist. She acts knowingly with respect to the result of her conduct when she knows that her conduct will at least very likely cause such a result. This concise outline of criminal liability in U.S. law will suffice for my aim in showing some of the vital connections between criminal responsibility and moral responsibility. MORAL RESPONSIBILITY While it is true that no comprehensive general account of responsibility can be complete without an account of legal responsibility,21 it is also true that such an account would be incomplete lacking an account of what makes one morally responsible. For what makes one morally responsible is a matter of what the balance of human reason “decides” and is not contingent on social convention as are notions of legal responsibility. In this way, moral responsibility is an ontologically prior notion, and serves well as our guide to who deserves to be punished for some wrongful and harmful outcome. So while a plausible account of responsibility for purposes of determining deserved punishment does well to be informed by conceptions of legal responsibility, moral responsibility theory 21

Cane, Responsibility in Law and Morality, p. 28.

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must guide our thinking concerning who ought to be punished, and why and how. For social conventions in law are often incorrect, influenced by an array of factors such as racism, sexism, greed, etc. But moral responsibility, being non-institutional, is governed by reason (and moral intuition) alone. Moral responsibility, on the other hand, accrues when the balance of human reason entails or implies that one is accountable (in either a blame or praise use) for an outcome. For example, if I am walking on a beach and, being a good swimmer, chance across a drowning child, but I do not make an effort to increase significantly the probability of the child’s being saved, I am morally responsible (in the blame use) for the child’s welfare in that situation. For I have violated the moral rule, call it “Good Samaritanism:” A moral agent is morally obligated to do whatever she can do to save an endangered stranger's life to the extent that her performance of such an action does not place her at genuine and significant risk (of harm or of life).22 In many jurisdictions in the U.S., anti-Bad Samaritan laws are in effect such that legal and moral responsibility on such matters coincide one with another. But there are other instances where legal and moral responsibility are incongruent (for whatever reasons), as noted above. In any case, I follow Peter Cane’s position that the relationship between law and morality is “symbiotic,” and that just as moral responsibility theory can and does inform us of the way legal responsibility ought to be articulated and conceptualized, so too can conceptions of legal responsibility serve as a rich reservoir of clarity concerning conceptions of moral responsibility, objectively construed.23 After all, “…when courts develop rules and principles about responsibility, they are engaging in essentially the same reasoning processes as people use in the moral domain when developing rules and principles about responsibility,”24 and “…the criteria of good legal reasoning and of good moral reasoning about complex concepts are essentially similar in many respects.”25 Moral responsibility theory provides a non-institutional analysis of the nature of responsibility such that determinations of responsibility in the law might be made reasonably, given the complex array of factors in a case. But even if it turned out to be true that the institution of punishment is justified, morally speaking, it would not follow that offenders ought to be punished. For it might be true that, all things considered, no one is sufficiently responsible for their actions such that it is justified for the state to inflict hard treatment on them. Thus they would be excused, or their actions would be so mitigated that 22

For discussions of this sort of an example, see Joel Feinberg, “The Moral and Legal Responsibility of the Bad Samaritan,” Criminal Justice Ethics, 3 (1984), pp. 56-69; John Kleinig, “Good Samaritanism,” Philosophy and Public Affairs, 5 (1976), pp. 382-407. 23 Cane, Responsibility in Law and Morality, pp. 12-6. 24 Cane, Responsibility in Law and Morality, p. 16. 25 Cane, Responsibility in Law and Morality, p. 21.

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punishment would not be justified. Of course, this would also imply that no one ought to be praised or rewarded for what they do well or rightly. And it is something akin to this latter claim and reasoning which leads John Rawls and many other philosophers to argue that the notion of desert is empty.26 According to Rawls, the social contexts into which we are born are not the results of our desires and wants, and so it is problematic to think that we are deserving of what results from our being born into, say, social and/or economic privilege or the lack thereof. Rawls’ reasoning is poignant as it directs our philosophical attention to a fact of sociology, namely, that our starting points in life are largely determined such they are to a significant extent beyond our control. As Rawls himself writes, the “inequalities of birth and natural endowment are undeserved.”27 They are undeserved because they are determined arbitrarily. And since our formative years are then largely determined in at least this sociologically arbitrary sense, how can we be said to deserve this or that, except, if at all, in some highly limited way? Would not this kind of sociological determinism vitiate attributions of moral responsibility that might lead to punishment in cases of significantly harmful wrongdoing? Of course, there are other senses in which we may be determined besides sociologically. We can be determined economically, or we can be determined biologically, and each in either positive or negative ways. Or, we can be determined ideologically in the sense that our values are taught to us at early ages, and those values to some extent determine how we think and often how we act. So there are a number of ways in which we are subject, to one degree or another, to forces somewhat beyond our control. I say “somewhat” here because it is a metaphysical issue as to whether or not we are determined fully, or partially, or not at all. This philosophical debate about human freedom has been taking place since the beginnings of philosophy. And I assume for the sake of this larger project that cognitively normal agents are at least sometimes significantly free to choose and act (or not act, or attempt to act) in some contexts. However, I will now take some time to outline some of the basic moves of the debate concerning moral responsibility in an effort to arrive at an analysis of the nature of responsibility, the conditions of which are rather congruent with the elements of criminal liability. LIBERTARIANISM, DETERMINISM, AND COMPATIBILISM There are at least three basic theories or metaphysics about human freedom. One theory is that of metaphysical libertarianism. I take this view to be that some events are not determined. It is the logical contradictory of determinism, 26 27

Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 100-04. Rawls, A Theory of Justice, p. 100.

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which I take to be the view that all events, even human actions and choices, are completely determined. By this it is meant, roughly, that given what preceded it, a particular event is inevitable. Although there are a number of different metaphysical analyses of the nature of determinism,28 simple determinism is that view which holds that all of our doings are caused by something other than ourselves, such that we lack significant control over everything we do. From this position we might derive the following argument regarding moral responsibility that I shall dub the Argument for Non-Responsibility: (1) Moral responsibility requires that we are at least sometimes able to do otherwise than what we do; (2) Being able to do otherwise than what we do requires our having essential control over what we do; (3) Our having essential control over what we do requires that we have the ability to do otherwise;29 (4) But we lack the ability to do otherwise because all of our actions are determined such that we lack essential control over them; (5) Therefore, we are not morally responsible for what we do. The Argument for Non-Responsibility is part of what motivates the traditional view of human freedom and responsibility. To the extent that humans lack the ability to do otherwise, they also lack freedom sufficient to qualify as morally responsible agents. But this line of reasoning has been challenged in recent years by Harry G. Frankfurt, and his proposed counterexamples to the Principle of Alternate Possibilities have received a tremendous amount of well-deserved philosophical attention.30 Frankfurt’s argument is 28

John Martin Fischer, The Metaphysics of Free Will (London: Blackwell, 1994); Ted Honderich, How Free are You?: The Determinism Problem (Oxford: Oxford University Press, 1993); Keith Lehrer, Editor, Freedom and Determinism (New Jersey: Humanities Press, 1966); Keith Lehrer, “‘Can’ in Theory and Practice: A Possible Worlds Analysis,” in Myles Brand and D. Walton, Editors, Action Theory (Dordrecht: Reidel, 1976), pp. 241-70; “Cans Without Ifs,” Analysis, 29 (1968), pp. 29-32. For a general introduction to this problem, see Laura W. Ekstrom, Free Will (Boulder: Westview Press, 2000). 29 In the literature on moral responsibility, this is referred to as the “Principle of Alternate Possibilities.” 30 For a selection of the fine work on this and related problems of moral responsibility theory, see Harry G. Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988); Necessity, Volition, and Love (Cambridge: Cambridge University Press, 1999). These collections of Frankfurt’s work contain his most important work on moral responsibility. Among the finest works which seek to contribute to the ongoing discussion of moral responsibility include: Ton van den Beld, Editor, Moral Responsibility and Ontology (Dordrecht: Kluwer Academic Publishers, 2000); John Martin Fischer, The Metaphysics of Free Will (London: Blackwell, 1994); John Martin Fischer, Editor, Moral

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proffered by way of a series of counter-examples, some of which attempt to demonstrate, intuitively, that a moral agent can be a responsible one even if she lacks the ability to do otherwise, thus casting doubt on (1) of the traditional Argument for Non-Responsibility. What is sufficient for moral responsibility, Frankfurt argues, is that an agent have a higher-order volition to do something, where her wants and desires motivate the action, namely, where she “really wants” to do what she does even though she indeed has no alternative actions open to her at that time. In short, he argues that acting freely is sufficient for moral responsibility. The ability to do otherwise, then, is not a necessary condition of moral responsibility, contrary to what has been argued, for instance, by Peter van Inwagen.31 Frankfurt’s theory is an instance of higher-order compatibilism between both determinism and freedom on the one hand, and determinism and moral responsibility on the other. A Frankfurtian theory of moral responsibility that has gained a solid foothold in the philosophical discussions of moral responsibility is that of John Martin Fischer.32 Fischer’s analysis of moral responsibility is similar to Frankfurt’s in the following way: each posits higher-order volitional control over one's life as a sufficient condition of moral responsibility. Regulative control is the kind of power a moral agent has to make a difference in the way the world turns out. According to Fischer, however, this control might not be open to us as moral agents. On his compatibilist view (doubly compatibilist, that is, between determinism and acting freely, and between determinism and moral responsibility), an agent is morally responsible to the extent that she has higher-order guidance control over her course in life. The nature and importance of guidance control is articulated by Fischer in the following claims:

responsibility. Among the finest works which seek to contribute to the ongoing discussion of moral responsibility include: Ton van den Beld, Editor, Moral Responsibility and Ontology (Dordrecht: Kluwer Academic Publishers, 2000); John Martin Fischer, The Metaphysics of Free Will (London: Blackwell, 1994); John Martin Fischer, Editor, Moral Responsibility (Ithaca: Cornell University Press, 1986); John Martin Fischer and Mark Ravizza, Editors, Perspectives on Moral Responsibility (Ithaca: Cornell University Press, 1993); Responsibility and Control (Cambridge: Cambridge University Press, 1998); I. Haji, Deontic Morality and Control (Cambridge: Cambridge University Press, 2002); I. Haji, Moral Appraisability (Oxford: Oxford University Press, 1998); The Journal of Ethics, 1:1 (1997), pp. 1-104; The Journal of Ethics, 3:4 (1999), 275-384; The Journal of Ethics, 4:4 (2000), pp. 307-417; The Journal of Ethics, 10 (2006), forthcoming; Robert Kane, The Significance of Free Will (Oxford: Oxford e University Press, 1998); Derk Pereboom, Living Without Free Will (Cambridge: Cambridge

31 32

University Press, 2001); Peter Van Inwagen, An Essay on Free Will (Oxford: Oxford University Press, 1983); R. Jay Wallace, Responsibility and the Moral Sentiments (Cambridge: Harvard University Press, 1996). Van Inwagen, An Essay on Free Will. See Fischer and Ravizza, Responsibility and Control; and The Journal of Ethics, 6 (2002), pp. 199-303. Fischer’s replies to some concerns expressed about his analysis in Responsibility and Control are found in John Martin Fischer, “Responsibility and Manipulation,” The Journal of Ethics, 8 (2004), pp. 145-77.

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The Frankfurt-type cases seem to me to show that one can be morally responsible for one’s actions, even though one does not select the path the world will take, among various paths that are genuinely available; in these cases, suitably filled in, there is just one path the world will take. And what makes the agent morally responsible is how he proceeds along this single path. More specifically, the agent can exhibit a certain sort of control - guidance control - even though he lacks regulative control. Guidance control, in my view, is the “freedomrelevant” condition sufficient for moral responsibility.33 Of course, Frankfurt’s view assumes, as does Fischer’s, that we sometimes have wants and desires such that we can really want to do this or that. And I make this assumption for purposes of this book. For if we lack this component of moral life, there is essentially no moral life at all. Furthermore, if we do not have desires and wants that are our own, then it would appear that there are no moral selves, and no moral choices for which we can or ought to be held accountable. Moral responsibility would be nonsense, and so would normative moral philosophy. There would seem to be no good reason, discounting an actutilitarian one, to hold us accountable for what we do that is either praiseworthy or blameworthy. Although strong moral skeptics are unlikely to be persuaded by such considerations, my purpose here is not to address meta-ethical concerns of moral realism versus moral anti-realism, but rather to argue from within a moral realist framework for certain claims about responsibility that are relevant to matters of punishment. But assuming that we do have desires and wants with which we identify to some meaningful extent, and do act freely at least some of the time, it would then be plausible to think that we at least have the capacity to act as morally responsible agents, whether or not we actually do so in this or that particular circumstance. Under such a scenario, what are the conditions of moral responsibility such that we might be held blameworthy in terms of punishment for our significant wrongdoing? Here I am raising a normative question about how punishable agents ought to be viewed and treated in terms of their responsibility statuses. For me to be morally responsible for what I do such that I am liable to punishment or sanction, it would seem that my causal connection to the wrongful deed, my being “at fault,” my intentionality, voluntariness, and knowledge are each relevant to the degree to which I am accountable for what I did, failed to do, or attempted to do, as the case may be. But precisely how does 33

John Martin Fischer, “Responsibility and Self-Expression,” The Journal of Ethics, 3 (1999), p. 296.

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each one of these factors figure into a general analysis of responsibility, especially the kind that can be used in a reasonably just legal system? I proffer the following analysis of responsibility for actions, an analysis that can and ought to be used to illuminate the nature of responsibility in criminal justice contexts. It is a conception of liability responsibility that makes use of conditions of responsibility that are at work in both moral and legal responsibility. A defendant is responsible for a wrongful act to the extent that she: (1) is guilty of committing the act, which means that she is causally connected to the wrongful deed;34 (2) performed the act intentionally, meaning that her action was guided by her wants and beliefs; (3) acted knowingly [But a defendant may act knowingly (or be an epistemic agent) in one of at least two ways. First, she might act knowingly in a direct way, where she knows that what she is doing is what she intends to do, say, rob a bank. She knew she was robbing the bank when she did it. And there were no significantly ambiguous factors concerning the bank robbery. But she might also act knowingly in an indirect way, where she knew that she was robbing the bank, but did not know or figure that robbing the bank could lead (or likely lead) to the harming of others in the process of the robbery (This point is related to the Scope of Responsibility Principle, articulated below)]; (4) acted voluntarily, wherein the causally contributory conduct must have been in some way faulty (i.e., she is responsible for the harmful outcome in the blame sense);35 and if the harmful outcome was truly the fault of the individual moral agent, the required causal connection must exist between the faulty aspect of her conduct and the outcome.36 The locution, “to the extent that” implies that responsibility admits of degrees. This implies that, typically, a person is not either wholly responsible or not responsible at all for an outcome. Rather, she is more or less responsible for it. This conceptual point will fit nicely with the requirement of proportional punishment that also admits of kinds and degrees, as we will see in subsequent chapters. Of course, moral luck figures into all of this rather readily. In the law, it might take the form of a criminal’s being born into and raised in a family for which there is little hope, economically speaking, of an opportunity for a decent life.37 When one,s life prospects are dim from the start, it is not obvious that one ought to be held fully accountable for what one does. This is because under 34

Causal responsibility is typically but not always a pre-condition of legal retrospective responsibility, as noted in Cane, Responsibility in Law and Morality, p. 36. 35 Feinberg, Doing and Deserving, p. 222. 36 This notion of fault is borrowed from Feinberg, Doing and Deserving, p. 222. 37 For an account of the influences of economic poverty on human life prospects, see Thomas Pogge, World Poverty and Human Rights (Cambridge: Polity, 2002). For discussions of such issues in the context of globalization and cosmopolitanism, see The Journal of Ethics, 9:1-2 (2005), pp. 1-306.

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such circumstances one lacks sufficient guidance control over her life in general. Furthermore, just as we would hardly be impressed by a wealthy heiress’ success in university studies provided that she is a normal cognizer raised in wealth and opportunity, we would hardly want to blame fully those who lack opportunities for basic life prospects when they turn to crime. To be sure, poverty alone is no excuse, legally speaking, for crime. But certain circumstances of poverty and lack of opportunity might serve as factors of mitigation in sentencing offenders. Moral luck, then, tends to vitiate ascriptions of full responsibility. This is true whether the luck is good or bad, or even a mixture of both. Perhaps something like this reasoning is what Rawls has in mind in his discussion of the concept of desert, noted earlier in this chapter. Thus we can see that moral responsibility theory just is concerned with the analysis of praiseworthy or blameworthy intentional and voluntary actions. The philosophical notion of intentional action (as behaving according to the agent’s beliefs and wants, for instance) helps to illuminate what the law refers to as mens rea and acting with purpose. This is especially true with the respective higher-order compatibilist theories of responsibility, as found in Frankfurt, Fischer and Keith Lehrer,38 for example. But these philosophical theories of freedom and responsibility also assist in the illumination of the legal concept of actus reus insofar as the latter concept assumes a level of voluntariness on behalf of the agent. What the law refers to as “concurrence” and harm are typically assumed to be conditions of moral responsibility. Thus we see that the elements of criminal responsibility are captured by at least some aspects of moral responsibility theories. Moreover, since intentional and voluntary actions are crucial for determinations of moral and legal liability, what is said plausibly about legal and moral responsibility depends, in the end, on a plausible analysis of moral responsibility at the levels of intentional and voluntary action. However, the law’s requirement (in some cases) that responsible defendants act knowingly could well benefit from a philosophical analysis of the nature of human knowledge. After all, it is helpful for legal theorists and professionals to better understand what ought to be meant by claims such as “Susan Smith acted knowingly in killing her children” or that “The Nazi Government acted knowingly in regards to its passing laws and policies which caused the deaths of millions of persons.” Perhaps one of the next stages in the already philosophically rich area of moral responsibility theory is not only to extend the discussion to matters of collective concern, but to incorporate more fully the epistemic condition of responsibility in order to account more comprehensively for the full range of the nature of moral (and, it turns out, legal) responsibility. There is quite a rich philosophical tradition in epistemology the analyses of 38

Keith Lehrer, Metamind (Oxford: Oxford University Press, 1990).

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which might be used to build a deep theory of criminal responsibility insofar as epistemic action is concerned.39 But there is even more to responsibility than the preceding paragraph indicates. One question to be raised here is the extent of the scope of responsibility for one’s actions. If I drink and drive, am I responsible for, say, endangering the lives of others in a negligent manner?40 That depends on whether or not I acted voluntarily. But what sense of “acting voluntarily” is relevant here: acting voluntarily to drink, or to drive, or both? If one is a genuine alcoholic, at least a serious one, then one suffers from a disease that mitigates substantially one’s freedom to, say, not drink. Thus one’s drinking is not under sufficient control to hold the alcoholic responsible for drinking. This might impair one’s better sense to not drive while drinking, which suggests that in many cases driving while under the influence of alcohol might deservedly receive a mitigated sentence. However, it might be argued that this is a facile picture of at least some such scenarios of drinking and driving. For is it not true that in many cases folk choose freely to begin to drink? Here I do not include cases where adolescents are pressured by intense socialization to do so. I have in mind cases where one simply decides to begin to drink, for social reasons, let us say. This kind of case lends itself to a particular line of reasoning about responsibility. Precisely where ought the line of responsibility to be drawn? What is the scope of responsibility? To be sure, these are difficult questions to answer, even to address. However, perhaps a principle can help guide us in our thinking about such tough cases. I propose the following “Scope of Responsibility Principle:” To the extent that I am responsible for X, and to the extent that I, being a reasonable person can understand, by way of common sense reflection, that X is likely to cause or lead to Y, I am responsible also for Y.

39

For philosophical accounts of (individual) knowledge, see Robert Audi, Epistemology (London: Routledge, 1998); Roderick Chisholm, Theory of Knowledge, Third Edition (Englewood Cliffs: Prentice-Hall, 1989); Alvin I. Goldman, Epistemology and Cognition (Cambridge: Harvard University Press, 1986); Keith Lehrer, Theory of Knowledge, Second Edition (Boulder: Westview Press, 2000). For philosophical accounts of social or collective belief and/or knowledge, see J. Angelo Corlett, Analyzing Social Knowledge (Totowa: Rowman and Littlefield Publishers, 1996); Margaret Gilbert, On Social Facts (Princeton: Princeton University Press, 1989); Sociality and Responsibility (Totowa: Rowman and Littlefield Publishers, 2000); Alvin I. Goldman, Knowledge in a Social World (Oxford: Oxford University Press, 1999). 40 “When one knowingly creates an unreasonable risk to self or others, one is reckless; when one unknowingly but faultily creates such a risk, one is negligent” (Feinberg, Doing and Deserving, p. 193).

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This implies that, barring some substantially voluntariness-reducing factors predating my first decision to drink, I ought to be held liable for what I cause as the result of my drinking, directly or indirectly as the principle suggests. That I intend to do only X should be no good reason for my not being responsible for Y to the extent that a reasonable person by way of common sense reflection could understand that under the circumstances Y is likely to result from X. Of course, one question here is how likely does it have to be that Y would result from or be caused by my doing X. And it is precisely such a likelihood that helps determine the level of responsibility that I might have for Y. If my argument is correct, then we are not responsible simply for what we do, but also for the indirect harms we may commit. If I am not an alcoholic, yet I drink and drive such that I am negligent in doing so, then I am responsible for the harms I cause. Given the congruence of many of the elements of legal (criminal) responsibility, on the one hand, and moral responsibility, on the other hand, I will proceed to analyze philosophically the concept of responsibility in terms of the points of congruence: intentionality, voluntariness, epistemic action, assuming concurrence and harm caused by the defendant. Therefore, I am morally and (should be) legally responsible for some act, omission or attempt to the extent that I am guilty of committing a harmful wrongdoing intentionally, knowingly and voluntarily, and that I am “at fault” in doing so. Moral luck and other factors may mitigate, not guilt, but the extent to which I ought to be punished for causing a certain harm prohibited by law. This analysis of responsibility will serve as part of the content of the meaning of “desert” and its cognates for purposes of the version of retributivism that I set forth and defend in subsequent chapters. To say that someone deserves to be punished in a particular way, then, means in part that she ought to be punished according to her degree of responsibility for the wrongdoing she committed. For the retributivist, then, the concept of responsibility just is part of the heart of her theory of punishment in that responsibility factors determine precisely the extent to which a criminal deserves punishment. But what is punishment, and what are the various theories of punishment? What is the most plausible theory of punishment, all things considered? And how ought criminals to be punished? I now turn to these and related questions.

CHAPTER 2 THE PROBLEM OF PUNISHMENT The main purpose of the previous chapter on moral responsibility theory was to lay the groundwork for a viable conception of responsibility that could be used in a reasonably just legal system in order to make accurate determinations of blameworthiness and accountability for punishment. It seems plausible to argue that whatever the most viable theory of responsibility turns out to be, any plausible theory of punishment must accommodate it. For example, if it turns out that determinism is true, then no one would be responsible in the relevant sense and punishable for their deeds, however harmful. So an abolitionist theory of punishment would be able to accommodate that supposed fact regarding responsibility. On the other hand, let us suppose that some version of compatibilism is the most philosophically plausible theory of the metaphysics of freedom and determinism underlying our notion of responsibility. In this case, a plausible theory of punishment would be some version of nonabolitionism that understands hard treatment of this or that form to be justified in at least some cases. Thus it cannot be overemphasized how important responsibility theory is for punishment theory (and vice versa). DESIDERATA OF A THEORY OF PUNISHMENT Just as it was important in the previous chapter to articulate some desiderata of a theory of moral responsibility a primary purpose of which is to determine who deserves to be punished for harmful wrongdoing, it is also vital to elucidate some of the desiderata of a normative theory of punishment.1 First, it is desired that a theory of punishment provide a definition of “punishment” so as to avoid conceptual confusion. This leads naturally to a recognition of various senses of “punishment,” from mere imprisonment to physically hard treatment, compensation, among other means of dealing with criminals, each of which would properly constitute punishment. For some alleged theories of punishment which are proposed as positive theories (i.e., those which hold that punishment is sometimes morally justified) do not seem to be punishment

1

These desiderata are developed independently of, but share a resemblance to, the “conditions” of a theory of punishment discussed in Jeffrie G. Murphy, “Does Kant Have a Theory of Punishment?” Columbia Law Review, 87 (1987), pp. 510-11.

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theories at all, but something else, perhaps even negative theories of punishment (e.g., those which deny that punishment is ever morally justified). Second, it is desired that a theory of punishment respect Anthony M. Quinton’s and John Rawls’ distinction between the justification of the institution of punishment and the justification of particular forms of punishment.2 For what justifies the former might not justify the latter, for example. It might well be the case that it is morally justified to punish criminals, but of the particular forms of punishment available for specific criminal cases, none is morally fitting. In any case, it is desired that a theory of punishment say what justifies punishment in both senses. Third, it is desired that a theory of punishment concern itself with corrective justice, as that is its principal aim. This desideratum may seem too obvious to require mention. But it is meant to caution against a theory of punishment’s placing considerations other than those of corrective justice (e.g., distributive justice) at the forefront of concern in punishment. Fourth, it is desired that a theory of punishment set forth the conditions under which a person qualifies as a punishable agent. This is important whether or not the punishment theory is positive or negative in content. It is vital to understand the conditions that, to the extent that they are satisfied (if at all), the agent ought to be punished. Fifth, it is desired that a theory of punishment would be applicable to a reasonably just legal system. This rules out the possibility that a theory of punishment would be able to be enacted justly by vigilantes. For as the third desideratum indicates, a theory of punishment is desirable to the extent that it concerns itself with corrective justice. Yet vigilante “justice” is not genuine justice. It denies the accused the exercising of her right to due process which is, most would argue, a basic human right. Due process, much more than even the most sincere vigilantism, is able to provide a rational, reasonable and fair weighing of evidence in cases tried by judge or jury. Sixth, it is desired that a theory of punishment explain what are the appropriate punishments for various crimes. The principles that would constitute such an explanation would serve as the grounds for sentencing criminals. To these desiderata might be added R. A. Duff’s insistence that: A normative theory of punishment must include a conception of crime as that which is to be punished. Such a conception of crime presupposes a conception of the criminal law—of its proper aims and content, of its claims on the citizen. Such a conception of the criminal law presupposes a conception of the 2

See page 1 of this book.

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state—of its proper role and functions, of its relation to its citizens. Such a conception of the state must also include a conception of society and of the relation between state and society.3 However, the factors of this final desideratum, however vital to a comprehensive understanding of crime, punishment, and the law, are clearly beyond the scope of this project, and will not be pursued herein.

THEORIES OF PUNISHMENT Having explored briefly some of the desired features of a normative theory of punishment, it is time to set forth and assess various sorts of theories of punishment. In so doing, other desired features of a normative theory of punishment will be addressed. PUNISHMENT ABOLITIONISM There exist a variety of competing theories of punishment. At one end of the spectrum lies punishment abolitionism. One form of punishment abolitionism is of the nihilistic variety. It denies that punishment (as hard treatment) is a legitimate response of the state to crime. This position, which amounts to a negative theory of punishment’s justification, might be held for one or more reasons. First, it might be thought that rehabilitation, not hard treatment, ought to be the state’s proper response to criminal activities. A version of this view is that punishment is itself a “crime” and that therapy, not hard treatment, is the state’s proper response to crime.4 Second, it might be argued that criminals do not act sufficiently freely to hold them legitimately accountable for what they do wrongly. A proponent of one way to hold this position is Karl Marx. Although Marx states that From the point of view of abstract right, there is only one theory of punishment which recognizes human dignity in the abstract, and that is the theory of Kant. . . . This theory, considering punishment as the result of the criminal’s own will,

3

R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), p. 35. 4 Karl Menninger, The Crime of Punishment (New York: Viking Press, 1968).

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is only a metaphysical expression for the old jus talionis; eye against eye, tooth against tooth, blood against blood. . . .5 he questions whether Immanuel Kant has it right in assuming that criminals truly act out of free will in a capitalist society. If they do not, then punishment of them is unjustified. Since sufficient unfreedom exists in capitalist society,6 criminals who act under conditions of capitalist unfreedom should not be punished, given that punishment is justified only to the extent that criminals act freely in what they do. This Marxian argument might be applied to all societies, not only capitalist ones, using metaphysical determinism as the basis for punishment abolitionism. So the Marxian form of punishment abolitionism might take on at least two forms. One is a stronger version according to which metaphysical determinism is thought to apply to life in all societies, making punishment unjustified generally. A weaker form of the Marxian punishment abolitional stance would hold for capitalist societies only, leaving open the possibility that in non-capitalist or post capitalist regimes freedom and responsibility would obtain generally, hence justifying punishment at least in some cases of criminal wrongdoing. In either case, the punishment abolitionist seeks to cast serious doubt on the legitimacy of punishment by challenging the supposition that persons are generally or often sufficiently free to be held accountable for what they do. The Marxian form of punishment abolitionism, then, challenges the voluntariness condition of responsibility that was articulated in the previous chapter. Since responsibility (as construed in the previous chapter) is necessary for punishment, then the extent to which persons are unfree (in capitalist societies or otherwise) is the extent to which they do not qualify as punishable agents. Thus if punishment abolitionism of this variety is correct, then it would be morally wrong to punish offenders no matter what crimes they commit. This claim assumes that act utilitarianism about punishment and responsibility is implausible in its allowing for the punishment of persons who are not guilty so 5

Karl Marx, “Capital Punishment,” in L. Feuer, Editor, Marx and Engels: Basic Writings (New York: Anchor Books, 1959), pp. 487-88. Perhaps another proponent of this position is Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003). 6 For discussions of unfreedom in capitalist societies, see George Brenkert, “Cohen on Proletarian Unfreedom,” Philosophy and Public Affairs, 14 (1985); G. A. Cohen, “Are Workers Free to Sell Their Labor Power?” Philosophy and Public Affairs, 14 (1985), pp. 99-105; History, Labour, and Freedom (Oxford: Oxford University Press, 1988), Chapter 13; “The Labour Theory of Value and the Concept of Exploitation,” Philosophy and Public Affairs, 8 (1979), pp. 338-60; “The Structure of Proletarian Unfreedom,” Philosophy and Public Affairs, 12 (1983), pp. 3-33; Jeffrey Reiman, “Exploitation, Force, and the Moral Assessment of Capitalism: Thoughts on Roemer and Cohen,” Philosophy and Public Affairs, 16 (1987), pp. 3-41; John Roemer, “Property Relations vs. Surplus Value in Marxian Exploitation,” Philosophy and Public Affairs, 11 (1982), pp. 281-313.

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long as social utility is maximized, and that any viable theory of punishment must concur with the essentially retributivist dictum that only the guilty should be punished. If punishment abolitionism of this strong variety is correct, then criminals ought not to be punished because they are not (sufficiently) responsible agents. Perhaps therapy, or rehabilitation by some other means, or moral education by means other than punishment are proper responses of the state to crimes. But punishment, being hard treatment, must be reserved for those who deserve it. Since criminals, on this punishment abolitionist view, do not act as responsible (or liable) agents in that they do not act voluntarily, then they ought not to be punished. Such criminals act wrongly, to be sure. But they are excused for what they do, bearing no responsibility. It is important to note some implications of this strongly abolitionist view of punishment. It is problematic to think that persons ought to be praised for what they do rightly in such a social order lacking responsibility. For if criminals ought not to be blamed and punished for their actions due to their lacking responsibility, then parity of reasoning would dictate that do-gooders ought not to be praised for what they do because they are equally not responsible. Yet this result seems to be counter-intuitive as there seem to be several contexts in which praiseworthiness for deserved awards based on merit, e.g., many of the competitors at Olympic Games and various other athletic competitions, is justified. Furthermore, this brand of punishment abolitionism reduces morality to emptiness. For morality relies on several assumptions, one of which is that persons are at least somewhat responsible for some of what they do, fail to do, or attempt to do, as the case may be. If we are not responsible for our doings or actions, then what would make us responsible for anything at all (including positive actions, events, or states of affairs)? What meaning, if any, would the moral life have? In order for the punishment abolitionist of this variety to escape from this slippery slope, there must be an argument as to why no criminal should be punished for lack of her responsibility, but the rest of us in society are indeed held to this or that set of moral rules, assuming that we are responsible for what we do, fail to do, or attempt to do. Lacking such argumentation, strong punishment abolitionism seems to fall upon the rocks of corroding moral despair. For a proper system of punishment just is a society’s way of holding properly responsible its citizens who are to some extent responsible for their own wrongdoings. By “to some extent responsible” I mean that some such persons act, fail to act, or attempt to act in ways such that they are, all things considered, at least partially liable to blame and punishment for at least some of their harmful wrongdoings. Perhaps their sentencing ought to be mitigated given the facts of their cases. But it would not follow that their harmful wrongdoings ought necessarily or always to be excused such that they suffer no punishment whatsoever.

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There are moderate versions of punishment abolitionism according to which, for instance, the advocacy of the abolition of punishment is limited in scope to, say, capital punishment.7 On such views, it is only certain kinds of punishment that ought to be abolished, for whatever reasons. Yet certain other forms of punishment are deemed acceptable or necessary for the maintenance of a decent society. Punishment abolitionists of at least some varieties argue against the practice of punishment in that it is “barbarous.” Others add that punishment abstracts criminal offenders from the social contexts in which their actions, omissions, and attempted actions ought to be understood, that punishment does not resolve the problems that give rise to criminal activities, and that the state ought to consider ways in which such conflicts between wrongdoers and victims might be resolved, thereby reconciling the parties each one belonging to the same community. The only hope of this reconciliation happening is if both criminals and their victims negotiate justice in open and equal terms of conflict resolution.8 But to refer to punishment as “barbarous” is simply to engage in ad hominem rhetoric, rather than demonstrating the reasonableness of one’s point by way of argument. Moreover, as we will see in later chapters, an adequate theory of punishment is sensitive to contexts and circumstances of harmful wrongdoings, and must be in order to assess correctly the level and degree of responsibility of offenders. That there are broader circumstances of, say, economics and politics that plausibly give rise to or serve as contributory causes of some wrongdoings hardly suffices to explain why any strong version of punishment abolitionism is justified. Rather, it would serve as reasons for mitigated sentencing for many harmful wrongdoings and excuses for some, but not as excuses for all harmful wrongdoings. Furthermore, that the victims of such wrongdoings ought to be reconciled with their perpetrators is an outlandish idea, certainly in need of argumentative support. Why in the name of reason would anyone think for even a moment that any victim ought to be reconciled with her offender (except, perhaps, in some religious community)? A partial answer to this kind of quasi-religious ideology is found in Chapter 5. Finally, as Duff points out, punishment abolitionists of this variety fail to provide a replacement for punishment when indeed proper punishments might even serve at least some of the aims of reconciliation and repair, assuming that such aims are themselves justified on moral grounds.9 Strong versions of punishment abolitionism, then, seem to be implausible, dogmatic ideologies. 7

See Chapter 6 for a discussion of whether or not capital punishment is ever morally justified. These modes of punishment abolitionism are discussed briefly in Duff, Punishment, Communication, and Community, pp. 32-4. 9 Duff, Punishment, Communication, and Community, p. 34. 8

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However, there is a weaker version of punishment abolitionism, according to which punishment may or may not be a justified response of the state to crime. Nonetheless, we ought to retain a critical attitude about the very legitimacy of punishment, whatever we decide, in the end, is the state ,s proper response to crime. I argue that, whatever else we do, we ought to adopt this degree of punishment abolitionism.10 I prefer to refer to it as “Weak Punishment Skepticism.” VENGEANCE THEORIES OF PUNISHMENT Besides strong and weak versions of punishment abolitionism, there are the vengeance theories of punishment, according to which punishment is the state’s right to inflict hard treatment on criminal offenders in that: (a) “… it is an orderly outlet for aggressive feelings, which would otherwise demand satisfaction in socially disruptive ways;” (b) “of the pleasure it gives people (particularly the victim of the crime and his loved ones) to see the criminal suffer for his crimes;” or (c) of the emotions it permits society to vent toward criminals.11 Although, as we shall see, vengeance theories can be distinguished from retributivist (and other) theories of punishment, some challenge the need or value of such distinctions, as vengeance might not be a shameful property of a theory of punishment.12 MORAL EDUCATION THEORIES OF PUNISHMENT Still other theories of punishment include the moral education theory of punishment found in some of Plato’s dialogues, and articulated and defended by some contemporary philosophers.13 This theory might take on a retributivist or a utilitarian version (or both). For on one view of the moral education theory, the criminal is punished in order to morally educate her because she deserves hard treatment in proportion to her harm wrongfully caused to others, while on the other version of the theory the criminal is punished to teach her a moral lesson in order to improve the lot of society as a whole. For making criminals into better citizens is extrinsically valuable in building a better society. Of 10

There are other versions of punishment abolitionism, as discussed in Duff, Punishment, Communication, and Community, pp. 30-4. 11 These versions of vengeance theories of punishment are articulated in Joel Feinberg, Editor, Reason and Responsibility, Seventh Edition (Belmont: Wadsworth Publishing Company, 1989), p. 348. 12 Jeffrie G. Murphy, Retribution Reconsidered (Dordrecht: Kluwer Academic Publishers, 1992), pp. 61-85. 13 Jean Hampton, “The Moral Education Theory of Punishment,” Philosophy and Public Affairs, 13 (1984), pp. 208-38.

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course, a punishment theory of the “mixed” variety might combine these reasons for moral education. My retributive theory of punishment, or the foundation thereof presented and defended in Chapter 4, assumes that moral education of criminals is possibly a secondary concern in punishing the guilty. In other words, if a criminal happens to be morally educated by the process of punishment being inflicted on her, so be it. But other than that, morally educating criminals certainly does not itself amount to punishment (hard treatment).14 Rather, it is a by-product of punishment that at times involves the enlightenment of the criminal of her wrongful and harmful ways that in turn amounts to anything but what common sense would understand as proportionally hard treatment for her wrongful harm to others. So it is difficult to understand how the moral education theory of punishment is a theory of punishment, but instead a view about what the state might hope to achieve in criminals and/or society as a result of punishing offenders. Given some definitions of “punishment” as hard treatment,15 it is difficult to see how the moral education theory of punishment pertains to punishment in a direct manner. As Feinberg states: Punishment in the narrow sense can be indispensably useful to the wrongdoer who is already convinced of the heinousness of his crime and is conscious-stricken over it. His remorse may be genuine when he enters prison, but it may be psychologically essential to him that he undergo punishment as a means of expiation, purification, and reconciliation. In these considerations there may be the germ of a moral reform theory of punishment as applied to those who seek penitence. But many other criminals are not predisposed to repentance, being either dedicated zealots or revolutionaries, calculating amoral risk-takers paying the price, without regret, for their losing gamble, sullen prisoners of the class war (in their own eyes), or sociopathic personalities. Inflicting pain on these individuals by depriving them of their liberty may be socially necessary to protect others, but its most likely effects on the prisoners themselves will be to confirm their cynicism and hatred, or convince them to take greater precautions against discovery next time around—hardly “moral messages.”16 14

That punishment is not treatment but “deliberate and avoidable infliction of suffering” on legal offenders by the state is articulated in Ted Honderich, Punishment, Revised Edition (London: Penguin, 1976), pp. 12, 14. 15 Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p. 98. 16 Joel Feinberg, Harmless Wrongdoing (Oxford: Oxford University Press, 1990), pp. 304-05.

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Nonetheless, I include here the moral education theory of punishment in that its proponents intend for it to be a theory of punishment, even though it tends to run afoul of the third desideratum, above. UTILITARIAN AND RETRIBUTIVIST THEORIES OF PUNISHMENT Perhaps the most widely held positions on the nature and justification of punishment are those of the utilitarian and retributivist, respectively. Indeed, recent discussions of punishment have yielded a number of attempts to combine, in various ways, these two theories.17 Indeed, my theory will seek to defend what is in many ways a Kantian view, recognizing Kant’s own implication that factors of social utility do count in the punishment calculus. But in this chapter I simply want to outline the basics of the utilitarian and retributivist theories of punishment without delving into the nuanced ways in which these theories might be creatively combined. An act utilitarian theory of punishment holds that punishment is a state’s proper response to crime to the extent that punishment, as an institution and in its particular forms, maximizes social utility in the form of deterrence and/or rehabilitation. It is forward-looking in that what matters most, if not totally, is whether or not punishment will most likely reduce the amount of badness in the world. Since punishment as hard treatment is itself a bad thing, an “evil” as Jeremy Bentham terms it, then punishment is only justified if it reduces the overall existence of evil in society. Otherwise, it is not justified. John Rawls on Retributivism and Utilitarianism. In “Two Concepts of Rules,” the distinction between “justifying a practice and justifying a particular action falling under it,” Rawls avers, can be used to rescue (act) utilitarianism from the grips of a certain objection levelled against it, an objection which states that utilitarianism sometimes permits or requires the punishment of innocent persons for the sake of social utility maximization. I shall argue that Rawls’ attempt to rescue act utilitarianism from the threat of this objection fails. Moreover, his suggestion that retributive and utilitarian theories of punishment, respectively, answer different questions about punishment is problematic. I argue that harmful wrongdoers do not have moral rights that preclude their being punished appropriately for their wrongdoings. For while legitimate punishment does harm18 or set back the legitimate interests of wrongdoers, such interests are hardly legitimate in light of, among other things, their wrongful 17

18

Some such attempts include Alan Goldman, “The Paradox of Punishment,” Philosophy and Public Affairs, 9 (1979), pp. 42-58; H. L. A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968). For an analysis of the concept of harm, see Joel Feinberg, Harm to Others (Oxford: Oxford University Press, 1984).

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acts, omissions, and attempts. If a moral right is a valid moral claim or interest, it is not obvious that punishment violates a right of wrongdoers.19 Unlike “full” or “strict” retributivism, I argue that the guilty and only the guilty should be punished, but that they should never be punished at any level higher than approximate proportionality permits, though sometimes the guilty need not be punished, or may be punished at a level significantly lower than proportionality dictates.20 This makes my version of retributivism “negative,”21 though not only negative. But it is also “mixed” in that it emulates Kant’s view that, though desert is what serves as the primary justification of punishment, considerations of social utility may serve as secondary reasons to punish. Later on I shall argue that this model of punishment not only renders problematic the construal of Kant as a pure retributivist, but it also serves as the basis of a mixed view of the justification of both the institution and practice of meting out punishments in particular cases. Rawls proposes to “reconcile” retributivism with utilitarianism concerning the problem of punishment.22 By “retributivism” he means the view that Punishment is justified on the grounds that the wrongdoing merits punishment. It is morally fitting that a person who does23 wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and 19

20

21 22

23

Christopher W. Morris, “Punishment and Loss of Moral Standing,” Canadian Journal of Philosophy, 21 (1991), pp. 53-80. This crucial distinction between a wrongdoer’s interests and her rights uncovers the mischaracterizing nature of certain objections to retributivism such as that “someone’s deserving to receive certain treatment is not sufficient to make it morally permissible (let alone obligatory) to give him that treatment, particularly if doing so would involve violating his rights” [David Dolinko, “Some Thoughts About Retributivism,” Ethics, 101 (1991), p. 558]. Some reasons for this include, however reluctantly, plea-bargaining for the sake of securing stronger punishments for greater offenders who deserve it, or simply not punishing minor offenses so that limited resources can be focussed on more important wrongdoings. This admission is not at all meant to deny that, whenever possible, offenders ought not to be “under punished.” John Braithwaite and Philip Pettit, Not Just Deserts (Oxford: Oxford University Press, 1990), p. 156. John Rawls, Collected Papers, Samuel Freeman, Editor (Cambridge: Harvard University Press, 2000), p. 20. Herbert Morris provides us with a theory of punishment which makes compatible retributivist and paternalist justifications of punishment: Herbert Morris, “Persons and Punishment,” The Monist, 52 (1968), pp. 476-79; “A Paternalistic Theory of Punishment,” American Philosophical Quarterly, 18 (1981), pp. 263-71; “Some Further Reflections on Guilt and Punishment,” Law and Philosophy, 18 (1999), pp. 363-78. Presumably, Rawls means to include criminal omissions (negligence, for example), for “if punishment must be for commissions, not omissions, then the bad Samaritan cannot be punished at all” [Michael Davis, “How Much Punishment Does the Bad Samaritan Deserve?” Law and Philosophy, 15 (1996), pp. 93-116].

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the severity of the appropriate punishment depends on the depravity of his act.24 By a utilitarian view of punishment, Rawls means the view that On the principle that bygones are bygones and that only future consequences are material to present decisions, punishment is justifiable by reference to the probable consequences of maintaining it as one of the devices of the social order. . . . If punishment can be shown to promote effectively the best interest of society it is justifiable, otherwise it is not.25 These are the respective views on punishment that Rawls seeks to reconcile. It is important to bear in mind that the version of retributivism that I articulate and defend is one in which the content is desert, i.e., responsibility and proportionality-based. However, whereas Rawls’ notion of retributive proportionality is grounded in the “depravity” of the criminal’s act, my version of retributive punishment concerns proportional punishment based on the harm 24

Rawls, Collected Papers, pp. 21-2. Compare this notion of retributivism with H. L. A. Hart’s definition of “simple retributivism:” Such a theory will assert three things: first, that a person may be punished if, and only if, he has voluntarily done something morally wrong; secondly, that his punishment must in some way match, or be the equivalent of, the wickedness of his offense; and thirdly, that the justification for punishing men under such conditions is that the return of suffering for moral evil voluntarily done, is itself just or morally good (Hart, Punishment and Responsibility, p. 231).

25

For an explication of various kinds of retributivism, see John Cottingham, “Varieties of Retribution,” The Philosophical Quarterly, 29 (1979), pp. 238-46. For discussions of various confusions in the use of “retributivism” and its cognates, see K. G. Armstrong, “The Retributivist Hits Back,” Mind, LXX (1961), pp. 471-90; Antony Flew, “The Justification of Punishment,” The Journal of Philosophy, 29 (1954), pp. 291-307; Anthony Quinton, “On Punishment,” Analysis, 14 (1954), pp. 33-42. For arguments against “character retributivism,” the view that punishment is deserved because of the wrongdoer’s moral evil or wickedness, see Jeffrie G. Murphy, “Moral Epistemology, the Retributive Emotions, and the ‘Clumsy Moral Philosophy’ of Jesus Christ,” in Susan Bandes, Editor, Law and Emotion (New York: NYU Press, 1999). A less sophisticated, yet nonetheless pure, version of retributivism than that articulated by Rawls is found in G. W. F. Hegel, The Philosophy of Right, F. M. Knox, Translator (Oxford: Oxford University Press, 1942), pp. 70-1. A remarkably similar version of retributive punishment is set forth in Morris, “Persons and Punishment,” pp. 476-79. G. E. Moore also defends a version of retributivism in G. E. Moore, Principia Ethica (Cambridge: Cambridge University Press, 1962), p. 214. Rawls, Collected Papers, p. 22. For a discussion of the differences between utilitarian and retributivist models of punishment, see Mark A. Michael, “Utilitarianism and Retributivism: What’s the Difference?” American Philosophical Quarterly, 29 (1992), pp. 2f.

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to others caused by the criminal, all things considered, and based on the proper assessment of the criminal’s moral retrospective liability responsibility for the harm. But with what notion of the nature of punishment is Rawls working? He avers that … a person is said to suffer punishment whenever he is legally deprived of some of the normal rights of a citizen on the ground that he has violated a rule of law, the violation having been established by trial according to the due process of law, provided that the deprivation is carried out by the recognized legal authorities of the state, that the rule of law clearly specifies both the offense and the attached penalty, that the courts construe statues strictly, and that the statute was on the books prior to the time of the offence.26 It is clear that Rawls’ construal of legal punishment includes a wide range of penalties that might be inflicted on criminals by the state given due process of law. In subsequent chapters, I shall extend this notion of punishment to include, in some cases, compensation as well as imprisonment, and other forms of physically hard treatment normally associated with criminal punishment. Furthermore, by “the violation having been established by trial according to the due process of law,” is meant by Rawls, I assume, a denial of the moral justification of vigilantism. What makes vigilantism morally wrong is that it violates a fundamental fairness that relies on a due process system to determine, as best it can, guilt from innocence based on the facts of each case. In a legitimate and well-functioning legal system, problems of an epistemic nature regarding guilt, and the circumstances of guilt, are revealed. But the vigilante cares not about such fairness. Even if the vigilante is herself an eyewitness to a crime of murder, it would be a moral mistake, not to mention a legal one in at 26

Rawls, Collected Papers, p. 26. Compare this conception of punishment with that of Hart’s five-fold definition of “punishment:” (i) (ii) (iii) (iv) (v)

It must involve pain or other consequences normally considered to be unpleasant; It must be for an offense against legal rules; It must be of an actual or supposed offender for his offense; It must be intentionally administered by human beings other than the offender; It must be imposed and administered by an authority constituted by a legal system against which the offense is committed (Hart, Punishment and Responsibility, pp. 4-5).

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least most contexts, for the vigilante to exact justice on the accused. For the epistemic uncertainty regarding the circumstances of the crime are virtually unknown to the vigilante. Justice and fairness dictate that due process rights ought to be upheld for the accused so that a determination of her guilt or innocence, along with the extent to which she may be guilty or innocent, might be determined. The lack of concern for the epistemic uncertainty that she may have in such situations makes the vigilante little more than a rogue of justice. Unfortunately, history is filled with too many (one is too many!) examples of vigilantism, often fuelled by hate and racism, for us to not be direly concerned about justice and fairness that are afforded in even imperfect criminal justice systems of due process. A recent example of vigilante international injustice is the “War on Terror” waged by the United States, where a now widely recognized false tie of terrorist support of certain terrorists by Iraq has exposed the U.S. government’s desire for, among other things,27 revenge at seemingly any cost for the 11 September 2001 attacks on the U.S. Pentagon and the World Trade Center buildings. Even now, several non-U.S. citizens mostly of middle eastern descent are being tortured and held without just cause, legal representation, and due process of law—all in the name of the “War on Terror.” But even if the vigilante should capture and “punish” a genuine offender, and do so proportionately, it would most likely be, epistemically speaking, out of luck, rather than as the result of careful and diligent investigative trial processes designed specifically to determine guilt and innocence. Vigilantism, then, is surely no live option for those concerned with punishment rather than “telishment.”28 Justice and fairness demand that we exert the time, resources, and effort required for full-scale investigation, interpretation and evaluation of the facts of each case. I surmise that often the attitude of vigilantism is at least in part a response to the moral disgust that many people have in criminal justice systems such as in the U.S. where the range of sentences handed down for various crimes is often deemed as being too light (even in cases of genuinely mitigating circumstances), coupled with the fact that time in prison is typically not served in full (for whatever reasons), and many prisoners are not treated sufficiently harshly when doing their time. So as vigilantism is condemned, honest and viable attempts must be made to reform the criminal justice system so that, from judges to 27

28

“Among other things” refers to the charge that the U.S. government sought to steal Iraqi oil prior to the terrorist attacks in question. The attacks of 11 September 2001 became a prime opportunity to unjustly acquire one of the largest oil reserves in the world. Recall that no weapons of mass destruction were located by anyone during months of careful searching, and presently, after years of investigation, no credible ties of terrorist support have been made to Iraq. Rawls refers to such a rights-violating sanction as “telishment” (Rawls, Collected Papers, p. 27).

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attorneys to criminals, everyone related to it is held accountable for their misdeeds. Until this is done, there will always be a delimited condemnation of vigilantism. With these definitions in mind, it is clear, according to Rawls, that there is at least a prima facie conflict between the retributivist notion that only the guilty29 deserve30 to be punished and the utilitarian idea that if punishment is justifiable, then it must be shown to promote the interests of society. The reason why the latter point seems to conflict with the former one is that it is conceivable that an innocent person may be used as a mere means to the state’s end of, say, social stability. Rawls’ way of resolving this apparent conflict is to argue that these respective models of punishment are in fact answering different questions (at variant levels) regarding the debate about the justification of punishment. He writes, “. . . utilitarian arguments are appropriate with regard to questions about practices, while retributive arguments fit the application of particular rules to particular cases.”31 Among other things, this means that utilitarianism is concerned with justifying the institution of punishment itself, while retributivism is concerned with answering the question of how to justify certain practices of punishment (for instance, matters of proportional punishment). Rawls explains this point in terms of the different roles a legislator plays from that of a judge in relation to these different levels of punishment justification. He writes, . . . the judge and the legislator stand in different positions and look in different directions: one to the past, the other to the future. The justification of what the judge does, qua judge, sounds like the retributive view; the justification of what the (ideal) legislator does, qua legislator, sounds like the utilitarian view.32 Thus Rawls states that these two views on punishment are reconciled by the “time-honored” device of making them apply to different situations or problems of punishment.33 29

For an analysis of the concept of legal guilt, see Herbert Morris, “The Decline of Guilt,” Ethics, 99 (1988), pp. 62-76. 30 Throughout this work, the notion of negative desert is used, unless specified otherwise. 31 Rawls, Collected Papers, p. 22. 32 Rawls, Collected Papers, p. 23. 33 Rawls, Collected Papers, p. 24. A similar distinction is made in Stanley I. Benn, “An Approach to the Problems of Punishment,” Philosophy, 33 (1958), pp. 325-26. Compare , Rawls distinction concerning the justification of punishment with that of Hart’s when Hart distinguishes between the “general justifying aim” of punishment and the question of its

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But Rawls misconstrues retributivism (or at least the intent of the view). He argues that the retributivist does not necessarily advocate, “as an institution, legal machinery whose essential purpose is to set up and preserve a correspondence between moral turpitude and suffering.”34 This, Rawls insists, is enough to derive the conclusion that retributivism is not necessarily concerned with the justification of the institution of punishment. However, “distribution.” Although he does not explicitly refer to Rawls on this matter, Hart seems to agree with Rawls on the following point: Much confusing shadow-fighting between utilitarians and their opponents may be avoided if it is recognized that it is perfectly consistent to assert both that the General Justifying Aim of the practice of punishment is its beneficial consequences and that the pursuit of this General Aim should be qualified or restricted out of deference to principles of Distribution which require that punishment should be only of an offender for an offense (Hart, Punishment and Responsibility, p. 9). Rawls, Benn and Hart are not the only philosophers to attempt hybrid conceptions of the justification of punishment. In the Gorgias, 525, Socrates articulates a position on punishment which sees punishment as being justified for reasons of deterrence and retribution: . . . it is proper for everyone who suffers a punishment rightly inflicted by another that he should either be improved and benefited thereby or become a warning to the rest, in order that they may be afraid when they see him suffering what he does and become better men. Now, those who are benefited through suffering punishment by the gods and men are beings whose evil deeds are curable; nevertheless it is from pain and agony that they derive their benefit both here and in the other world, for it is impossible to be rid of evil otherwise. But those who have been guilty of the most heinous crimes and whose misdeeds are past cure . . . are no longer capable themselves of receiving any benefit, because they are incurable . . . suffering throughout eternity the greatest and most excruciating and terrifying tortures because of their misdeeds, literally suspended as examples there in the prison house in Hades, a spectacle and a warning to any evildoers who from time to time arrive {See also Gorgias 478d-480b for a retributivist view of punishment. For other versions of the hybrid model of punishment, see W. D. Ross, The Right and the Good (Oxford: Clarendon Press, 1965), pp. 56-64; Hart, Punishment and Responsibility, pp. 1-13; Michael Lessnoff, “Two Justifications of Punishment,” The Philosophical Quarterly, 21 (1971), pp. 141-48 [These versions are noted in Alan H. Goldman, “The Paradox of Punishment,” in A. John Simmons, Marshall Cohen, Joshua Cohen and Charles Beitz, Editors, Punishment (Princeton: Princeton University Press, 1995), p. 36]. Kant has typically been misunderstood to be a pure retributivist, when in fact he was not (see below). For an argument in favor of the claim that David Hume was a “mixed retributivist,” see Paul Russell, “Hume on Responsibility and Punishment,” Canadian Journal of Philosophy, 20 (1990), pp. 539-64]}. 34 Rawls, Collected Papers, p. 24.

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retributivists are indeed concerned with the justification of punishment as an institution. In fact, the overall plausibility of retributivism is contingent on it! Of what value is it to the retributivist for her to assert that punishments should (or must) be meted out in proportion to the suffering caused to the victim(s) or the wickedness of the offender, etc., if the institution of punishment is itself morally groundless? Thus Rawls’ claim that retributivism need not be concerned with the problem of justifying punishment itself is problematic. Furthermore, Rawls states that “utilitarians agree [with retributivists, and most everyone else, I suppose] that punishment is to be inflicted only for the violation of law.”35 Additionally, utilitarians hold that no official should have the discretionary power to inflict punishments whenever he or she believes it would benefit society.36 Rules would be in place to prevent such from happening. At least this would be so in a rule-utilitarian society. Thus the objection that utilitarianism permits or requires, under certain circumstances, that the innocent suffer punishment is unjustified because utilitarianism would not allow an innocent person’s rights to be violated for the sake of social utility maximization. More precisely, Rawls argues that a system of punishment that violated the rights of the innocent would not benefit society in the long run. He writes, “if one pictures how such an institution would actually work, and the enormous risks involved in it, it seems clear that it would serve no useful purpose.”37 In fact, he avers, a utilitarian justification for it is not likely.38 However, Rawls’ example of why utilitarianism is not likely to justify “systematic deception”39 in the institution of punishment (such as in a case of telishment) does not work for an institution that is not systematic or ongoing. Could not utilitarianism justify, in principle, the one-time and “minor” punishment of an unknown individual (a person beyond society's purview of concern) who is innocent? In such a case, there is no genuine risk that society would discover the moral difficulty in punishing this person, having no friends, acquaintances or even family. Only “God would know” that the person was railroaded and punished, say, to stabilize society in the midst of its fears about a certain problem. And even if the problem persists, society does well to use this innocent person as a mere means to the end of attempting to establish social stability in the midst of a crisis. Certainly a utilitarian can support the punishment of an innocent person under circumstances akin to this. And is this not all that is needed to condemn the utilitarian view of punishment? Does it not make false Rawls’ statement that “utilitarians agree that punishment is to be inflicted only for the violation of law”? Does it not mean, as Rawls himself 35

Rawls, Collected Papers, p. 24. Rawls, Collected Papers, p. 24. 37 Rawls, Collected Papers, p. 28. 38 Rawls, Collected Papers, p. 28. 39 Rawls, Collected Papers, p. 27. 36

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considers, but then denies, that utilitarianism permits or requires (in principle) the “punishment” of certain persons?40 Rawls does not provide us with an adequate reason to think that utilitarianism is immune from the objection that it sometimes permits or requires (for purposes of social utility maximization) the “punishment” of the innocent. In sum, utilitarian theories of punishment are problematic insofar as they rely on justifications of particular forms of punishment that are deterrent or reformatory in nature: Suppose it could be shown that a particular criminal had not been improved by a punishment and also that no other wouldbe criminal had been deterred by it, would that prove that the punishment was unjust? Suppose it were discovered that a particular criminal had lived a much better life after his release and that many would-be criminals believing him to be guilty were influenced by his fate, but yet that the “criminal” was punished for something he had never done, would these excellent results prove the punishment just?41 Thus “it is essential to a legal system that the infliction of a particular punishment should not be determined by the good that particular punishment will do either to the criminal or to ‘society’.”42 Not only has Rawls misunderstood retributivism’s intent, not only has he failed to rescue the utilitarian position on punishment from what might be referred to as the “Punishment of the Innocent Argument,” he unwarrantedly devalues retributivism. For he fails to realize that retributivism does have a way of justifying the very institution of punishment. The retributivist may argue that not only do the guilty deserve to be punished in proportion to their wrongdoings, etc., but the institution of punishment is justified because it logically coheres with moral or social or political principles, ones which do not imply or entail anything about the primacy of deterrence or future consequences of the state’s inflicting of punishment on wrongdoers. Primarily, such principles cohere with a desert4340

By “punishment” here I mean the state’s inflicting suffering or hard treatment on an innocent party in the form of actual punishment. 41 J. D. Mabbott, “Punishment,” Mind, 48 (1939), p. 154. 42 Mabott, “Punishment,” p. 162. 43 For discussions of the concept of desert, see Braithwaite and Pettit, Not Just Deserts; Richard Burgh, “Do the Guilty Deserve Punishment?” The Journal of Philosophy, LXXIX (1982), pp. 193-210; Geoffrey Cupitt, “Desert and Responsibility,” Canadian Journal of Philosophy, 26 (1996), pp. 83-100; Hyman Gross, A Theory of Criminal Justice (Oxford: Oxford University Press, 1979); David Lewis, “The Punishment that Leaves Something to Chance,” Philosophy and Public Affairs, 18 (1989), pp. 53-67; A. T. Nuyen, “Just Desert,” Journal of Value Inquiry, 31 (1997), pp. 221-30; G. Sher, Desert (Princeton: Princeton University Press, 1987). For discussions of Burgh’s and Sher’s respective arguments, see Stephen Kershnar,

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based justification of the institution of punishment. For instance, the concept of deserved punishment seems to cohere with the principle that criminals have knowingly, intentionally, and voluntarily violated a law and that the offender in so doing accepts punishment as society’s response to the breach of law and the disregard of the social contract44 (Perhaps because it gives, let us say, the offender an unfair advantage over others, or because it disrespects the personhood or autonomy of victims of wrongdoing, etc.). This reason, or set of reasons, for punishment as an institution is not uniquely utilitarian, and it is consistent with retributivism as Rawls understands it. No doubt there are other principles that would cohere with retributivist ones and simultaneously justify the institution of punishment. Jeffrie G. Murphy and Jules L. Coleman note that the cluster of moral concepts containing, among other things, rights,45 moral responsibility,46 and justice47 serve to justify the “Justification and Deserved Punishment,” The Southern Journal of Philosophy, 33 (1995), pp. 461-84. 44 For a defense of the institution of punishment grounded in the idea of fair play, see Richard Dagger, “Playing Fair With Punishment,” Ethics, 103 (1993), pp. 473-88. For an argument that social cooperation and fair play are contingent on a system of retributive justice, see Andrew Oldenquist, “An Explanation of Retributivism,” The Journal of Philosophy, LXXXV (1988), pp. 464-78. 45 For discussions of the concept of rights, see J. Angelo Corlett, “The Problem of Collective Moral Rights,” Canadian Journal of Law & Jurisprudence, 7 (1994), pp. 247-63; Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978); Joel Feinberg, Freedom and Fulfillment (Princeton: Princeton University Press, 1992), Chapters 8-10; Problems at the Roots of Law (Oxford: Oxford University Press, 2003), Chapter 2; Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980); Social Philosophy (Englewood Cliffs: Prentice-Hall, 1973); James Griffin, “Welfare Rights,” The Journal of Ethics, 4 (2000), pp. 27-43; Loren Lomasky, Persons, Rights, and the Moral Community (Oxford: Oxford University Press, 1987); David Lyons, “Human Rights and General Welfare,” Philosophy and Public Affairs, 6 (1977), pp. 113-29; Eric Mack, “In Defense of the Jurisdiction Theory of Rights,” The Journal of Ethics, 4 (2000), pp. 71-98; Thomas Pogge, “The International Significance of Human Rights,” The Journal of Ethics, 4 (2000), pp. 45-69; A. John Simmons, “Makers’ Rights,” The Journal of Ethics, 2 (1998), pp. 197-218; L. W. Sumner, The Moral Foundation of Rights (Oxford: Oxford University Press, 1987); Judith J. Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990); Jeremy Waldron, Liberal Rights (Cambridge: Cambridge University Press, 1993); Richard Wasserstrom, “Rights, Human Rights, and Racial Discrimination,” The Journal of Philosophy, LXI (1964); Carl Wellman, A Theory of Rights (Totowa: Rowman and Littlefield, 1985); Real Rights (Oxford: Oxford University Press, 1995); The Proliferation of Rights (Boulder: Westview Press, 1999). 46 For some recent discussions of the concept of moral responsibility, see Harry G. Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988); John Martin Fischer, Editor, Moral Responsibility (Ithaca: Cornell University Press, 1986); John Martin Fischer and Mark Ravizza, Editors, Perspectives on Moral Responsibility (Ithaca: Cornell University Press, 1993); John Martin Fischer and Mark Ravizza, Responsibility and Control (Cambridge: Cambridge University Press, 1998); “Responsibility and Inevitability,” Ethics, 101 (1991), pp. 258-78; Harry G. Frankfurt, “An Alleged Assymetry Between

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retributivist standpoint on punishment.48 Surely a full-blown theory of retributive punishment could show how punishment as an institution coheres with these moral concepts as well.49 Now it might be argued that the above coherence principle is, as stated, a utilitarian one, and that all such principles are utilitarian in character, making it impossible in principle for the retributivist to provide a purely retributive justification for the institution of punishment. However, this objection is weakened because retributivists such as Kant insist that the institution of punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the grounds that he has committed a crime; for a human being may never be manipulated merely as a means to the purposes of someone Actions and Omissions,” Ethics, 104 (1994), pp. 620-23; Ishtiyaque Haji, “Autonomy and Blameworthiness,” Canadian Journal of Philosophy, 24 (1994), pp. 593-612; Ishtiyaque Haji, Deontic Morality and Control (Cambridge: Cambridge University Press, 2002); Ishtiyaque Haji, Moral Appraisability (Oxford: Oxford University Press, 1998); The Journal of Ethics, 1 (1997), pp. 1-98; The Journal of Ethics, 3 (1999), pp. 275-384; The Journal of Ethics, 4 (2000), pp. 315-417; The Journal of Ethics, 10 (2006), forthcoming; Marina A. L. Oshana, “Wanton Responsibility,” The Journal of Ethics, 2 (1998), pp. 261-76; Michael Philips, “Rationality, Responsibility and Blame,” Canadian Journal of Philosophy, 17 (1987), pp. 141-54; Lawrence Vogel, “Understanding and Blaming: Problems in the Attribution of Moral Responsibility,” Philosophy and Phenomenological Research, LIII (1993), pp. 129-43; Susan Wolf, “Sanity and the Metaphysics of Responsibility,” in Ferdinand Schoeman, Editor, Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), pp. 46-62. 47 For discussions of the concept of justice, see Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974); John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971); Political Liberalism (New York: Columbia University Press, 1993); Collected Papers; The Law of Peoples (Cambridge: Harvard University Press, 1999); Michael Walzer, Spheres of Justice (New York: Basic Books, 1983). For critical discussions of the respective theories of justice of Rawls and Nozick, see, J. Angelo Corlett, Editor, Equality and Liberty: Analyzing Rawls and Nozick (London: Macmillan, 1990). For critical discussions of Rawls’ theory of justice as fairness, see H. Gene Blocker and Elizabeth H. Smith, Editors, John Rawls’ Theory of Social Justice (Athens: Ohio University Press, 1980); Norman Daniels, Reading Rawls (New York: Basic Books, 1975); and Thomas Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1990). 48 Jeffrie G. Murphy and Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence (Boulder: Westview Press, 1990), p. 121. 49 The point here is not to defend such retributivist notions as being plausible, but rather to argue that to the extent that these are retributivist concepts, it is possible for retributivism to provide a justification or grounding for the institution of punishment, contrary to Rawls’ claim that retributivism is not necessarily concerned with the justification of the institution of punishment.

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else. . . . H e must first be found to be deserving of punishment before any consideration is given to the utility of his punishment for himself or for his fellow citizens.50 This passage implies that considerations of social utility may figure into the justification of the institution of punishment, but at a secondary level. Whether or not this makes Kant's view of punishment a “mixed” or impure one, the point is that it is no embarrassment even for Kant, or for retributivists in general, that appeals to social utility are made once the primary justification of punishment is provided. The primary justification of both the institution and practices of punishment is “so that everyone will duly receive what his actions are worth.”51 And the fact that, even according to Kant’s retributivism, non-desert factors are relevant to punishment indicates that it is a misconception of retributivism to understand it as a view that holds that giving wrongdoers what they deserve is all there is to justice.52 It also renders problematic Benn’s claim (concerning the justification of the institution of punishment) that “the retributivist refusal to look at consequences for justification makes it impossible to answer this question within his terms.”53 Apparently, then, even Kant recognizes by implication the truth of Feinberg’s claim that “desert is one very important kind of ethical consideration, but it is not the only one.”54 Thus Rawls is incorrect in arguing that retributivism need not aim at justifying the institution of punishment. For retributivism just is a view that seeks and must seek a justification for both the institution and practices of punishment. Rawls goes wrong on the matter of whether or not retributivism and utilitarianism can be reconciled, and why. This does not, however, mean that Rawls does not point us to a crucial distinction between the sorts of questions punishment theorists confront. 50

Immanuel Kant, The Metaphysical Elements of Justice, John Ladd, Translator (London: The Macmillan Publishing Company, 1965), p. 100, emphasis provided; Immanuel Kant, The Metaphysics of Morals, 105. Emphasis added. For discussions of Kant’s retributivism, see Jeffrie G. Murphy, “Does Kant Have a Theory of Punishment?” Columbia Law Review, 87 (1987), pp. 509-32; “Kant’s Theory of Criminal Punishment,” in Jeffrie G. Murphy, Editor, Retribution, Justice, and Therapy (Dordrecht: D. Reidel, 1979), pp. 82-92; Thomas E. Hill, Jr., “Kant on Wrongdoing, Desert, and Punishment,” Law and Philosophy, 18 (1999), pp. 407-41. For a recent discussion of Kant’s retributivism as it pertains to capital punishment, see Vernon T. Sarver, “Kant’s Purported Social Contract and the Death Penalty,” The Southern Journal of Philosophy, XXXIV (1997), pp. 455-72. Also see the next chapter of this book. 51 Kant, The Metaphysical Elements of Justice, p. 102. 52 This misattribution of retributivism is made by implication in Dolinko, “Some Thoughts About Retributivism,” p. 558. 53 Stanley I. Benn, “An Approach to the Problems of Punishment,” in Herbert Morris, Editor, Freedom and Responsibility (Stanford: Stanford University Press, 1961), p. 518. 54 Feinberg, Doing and Deserving, p. 94.

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Having assessed theories of punishment that compete with retributivism, it is time to set forth and assess the plausibility of the foundations of a retributivist theory of punishment. In order to do this, it is important to consider what Kant wrote about punishment. From much of what he wrote, it might be argued that a version of retributivism might well survive the onslaught of antiretributivist criticisms.

CHAPTER 3 FOUNDATIONS OF A KANTIAN RETRIBUTIVISM Immanuel Kant is usually considered to be the philosopher whose view on punishment most exemplifies retributivism. At the very least, his words on punishment are paradigmatically retributivist. For if there is one thing Kant holds it is that criminal guilt deserves punishment, regardless of considerations of social utility. Does Kant have anything further than this to say about punishment? If so, do his ideas about punishment amount to a theory of punishment? Is there a plausible Kantian theory of punishment? Jeffrie G. Murphy argues that there is probably no theory of punishment to be found in Kant’s writings, but that “if one selects carefully among the many remarks and insights that Kant has left us about crime and punishment, one might even be able to build such an edifice from the bricks provided.”1 In this chapter, I seek to provide part of a foundation of a Kantian theory of punishment, one that is consistent with many of Kant’s own insights on justice. Finally, I assess the plausibility of Kant’s view. Contrary to some of his arguments in his previous works on the subject,2 Murphy states that there is probably no theory of punishment to be found in Kant’s writings, not even in the RECHTSLEHRE.3 Murphy holds that a theory of punishment has five jointly necessary conditions. First, such a theory must answer the question, “What is the nature of crime and punishment?” Secondly, it must answer the question, “What is the moral justification of punishment?” Thirdly, it must give a reply to the query, “What is the political justification of punishment?” Fourthly, it must delineate the proper principles of criminal liability. Finally, a theory of punishment must answer the question, “What are the appropriate punishments?” After considering what Kant has to say about punishment throughout his writings, Murphy concludes that Kant either fails to address or fails in addressing each of these five crucial points about 1

Jeffrie G. Murphy, “Does Kant Have a Theory of Punishment?” Columbia Law Review, 87 (1987), p. 532. 2 In “Does Kant Have a Theory of Punishment?” Murphy reconsiders his previously held position that affirmed the existence of such a theory [See Jeffrie G. Murphy, “Kant’s Theory of Criminal Punishment,” in Jeffrie G. Murphy, Editor, Retribution, Justice, and Therapy: Essays in the Philosophy of Law (Dordrecht: D. Reidel Publishing Company, 1979), pp. 82-92; Kant: The Philosophy of Right (New York: St. Martin’s Press, 1970)]. 3 Murphy, “Does Kant Have a Theory of Punishment?” Throughout this chapter I shall refer to Kant’s The Metaphysical Elements of Justice, John Ladd, Translator (London: The Macmillan Publishing Company, 1965), hereafter cited as the “RECHTSLEHRE.”

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punishment. Since answers to these questions about punishment are necessary for a theory of punishment, Murphy concludes that Kant probably has no theory of punishment. I shall argue that, by way of rational reconstruction, it is possible to provide Kantian replies to each of these questions, replies that serve as part of a foundation of a Kantian theory of punishment. My focus shall be on the RECHTSLEHRE in that it includes Kant’s latest and most in-depth treatment of punishment. To make more than infrequent use of other (earlier) writings of Kant’s in performing this task of rational reconstruction runs the risk of not permitting Kant to change his mind about such an important subject. If Kant did have serious ideas about punishment, then it is most likely that such a view (however sketchy) is to be found in the RECHTSLEHRE, given that it alone contains Kant’s most recent and fullest treatment of his account of justice. My point is that an answer to the question, “Does Kant have a theory of punishment?” should focus on textual evidence from the RECHTSLEHRE primarily, rather than on proof texts from the Kantian corpus as a whole. My argument for the claim that there is a foundation of a Kantian theory of punishment should not be construed as a defence of the claim that such a theory is plausible or justified. In fact, I raise objections later in this chapter some of which tend to cast serious doubt on certain features of Kant’s view. The overall plausibility or justifiability of Kant’s account of punishment, then, rests at least in part on whether or not adequate answers to such objections are forthcoming. The significance of my reconstruction of Kant’s ideas on punishment is that it succeeds in meeting (or goes a long way in doing so) each of the above conditions of a theory of punishment. This renders dubious the claim that there is probably not a theory of punishment in the RECHTSLEHRE or in the Kantian corpus as a whole. It also succeeds in casting Kant’s view in a strengthened version, one that evades certain criticisms of Kant’s position. In so doing, it increases the plausibility of Kant’s account. This holds even though I articulate some problem areas for a Kantian theory of punishment, some of which seem to find no easy answer in Kant’s writings on justice or virtue.

TOWARD A KANTIAN THEORY OF PUNISHMENT It should be noted at the outset that the above five conditions of a theory of punishment are, I think, adequate. However, it is worth pointing out that few, if any, of the most respected 20th or 21st-century analytical philosophers of law have developed theories of punishment which meet each of these five conditions. So even if it is true that Kant’s words on punishment in the RECHTSLEHRE fail to add up to a theory, it is also true that Anglo-American law might well be left without a philosophical theory of punishment. So Kant’s

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view (insofar as its adding up to a theory of punishment is concerned) is not entirely discounted by such a consequence.4

WHAT ARE THE NATURES OF CRIME AND PUNISHMENT? Kant sees punishment as the right of society to inflict evil on a person who commits a crime or wrongdoing.5 But for Kant punishment is more than this. It is a categorical imperative:6 it is the state’s perfect duty7 of justice to 4

But that Kant’s account of punishment in the RECHTSLEHRE does not add up to a theory of punishment should not surprise the careful student of Kant’s RECHTSLEHRE. For Kant himself writes the following words in his “Preface” to the RECHTSLEHRE: . . . a metaphysical system of justice would have to take into account the empirical diversity and manifoldness of those cases in order to be complete in its subdivision . . . Thus, the only appropriate name for the first part of the theory of morals is The Metaphysical Elements of Justice, for, if we take these cases of application into account, we can expect to attain only an approximation of a system, not a system itself [Kant, RECHTSLEHRE, pp. 3-4].

Thus we find Kant himself admitting at the outset of the RECHTSLEHRE that he does not believe he is offering the reader a theory (full-blown account) of any kind (much less a theory of punishment). The claim that there is probably no theory of punishment in the Kantian corpus, then, loses some of its significance as a result of this fact. Regardless of Kant’s admission that he is neither providing a theory of justice (nor , by implication, a theory of punishment) in the RECHTSLEHRE, one might ask whether or not Kant’s claims about punishment in the RECHTSLEHRE constitute a theory of punishment. Moreover, one might ask whether or not one can rationally reconstruct a theory (or the basis of a theory) of punishment from what Kant says about punishment in the RECHTSLEHRE. Let us, then, consider what Kant states about punishment in the RECHTSLEHRE in light of the five conditions of a theory of punishment so that we might discern whether there is a Kantian theory of punishment forthcoming. 5 Murphy, “Does Kant Have a Theory of Punishment?” p. 520. Kant’s claim that punishment must be inflicted on offenders because they have committed crimes has been the subject of significant debate. For an incisive discussion of how Kant might be interpreted here, see Ted Honderich, Punishment, Revised Edition (London: Penguin, 1976), pp. 24f. 6 That the law of retribution is a categorical imperative is stated at least twice in the RECHTSLEHRE (pp. 100, 107). That the categorical imperative admits of no exceptions may be found in the following passage where Kant distinguishes the categorical imperative from a hypothetical imperative: “the categorical imperative is limited by no condition, and can quite properly be called a command since it is absolutely, though practically, necessary” [Immanuel Kant, Grounding for the Metaphysics of Morals, James W. Ellington, Translator (Indianapolis: Hackett Publishing Company, 1983), p. 26, hereafter referred to as the “GRUNDLEGUNG”]. Kant also describes the categorical imperative as “an unconditional command” which “does not leave the will free to choose the opposite at its own liking” (Kant, GRUNDLEGUNG, p. 29). Furthermore, that whatever is required by the categorical imperative is a perfect duty is inferred from the RECHTSLEHRE:

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intentionally inflict pain on a wrongdoer without it being the case that the criminal is punished as a mere means to an end. It entails the claim that “the unlawful killing of another person must be punished by death.”8 Moreover, Kant defines a “crime” as the sort of harm which demands more than mere private legal means by which to control it.9 Presumably, it is a harmful act A does to B that requires state coercion (supported by way of external legislation) to control. For Kant, punishment is the state’s right to coerce those who would limit the freedom of others within it. Punishment is the right of the state and (at least , under certain circumstances) the state s perfect duty of justice! Consider the following well-known passage from the RECHTSLEHRE: “If, however, he has committed a murder, he must die.... Even if a civil society were to dissolve itself by common agreement of all its members,... the last murderer remaining in prison must first be executed.”10 Thus for Kant there is a sense in which punishment is a society’s duty, not simply a right. It is society’s right and duty to intentionally and forcibly inflict pain on those guilty of crimes. Moreover, it is the state’s perfect duty to punish offenders, according to Kant. Otherwise, if the state has only an imperfect duty to punish offenders, what sense can be made of the above passage? Now we have a more fitting Kantian reply to the question, “What is the nature of crime and punishment?” A perfect duty (“narrow duty”) is one the nonperformance of which is wrong: it is a duty owed (p. xiv); Duty is that action to which a person is bound. It is therefore the content [Materie] of obligation (p. 23); . . . an imperative is a rule the representation of which makes necessary a subjectively contingent action and thus represents the subject as one who must be constrained (necessitated) to conform to this rule. The categorical (unconditional) imperative is one that does not command mediately, . . . but immediately, through the mere representation of an end that could be attained by an action itself (its form), which the categorical imperative thinks as objectively necessary and makes necessary (p. 23). From these passages it seems reasonable to infer that, for Kant, an act required by the categorical imperative is also a perfect duty in the sense that such an act “is one the nonperformance of which is wrong: it is a duty owed.” 7 In a previous work, Murphy himself notes the following in regards to Kant’s “theory” of punishment: “This theory of punishment is clearly retributive in character, holding that criminal guilt merits or deserves punishment and that the non-criminal members of the community have a moral duty to inflict (through official authorities, of course) the punishment” (See Murphy, “Kant’s Theory of Criminal Punishment,” p. 82). John Ladd also notes that punishment is, on Kant’s view, the state’s “right and duty” (See Ladd’s “Translator’s Introduction” to the RECHTSLEHRE, p. xxi). 8 Kant, RECHTSLEHRE, p. 107. 9 Murphy, “Does Kant Have a Theory of Punishment?” p. 520. 10 Kant, RECHTSLEHRE, p. 102.

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But what sort of right is the state’s right to punish? If it is impossible to make some sense of punishment being a right of the state, then there seems to be a problem for Kant’s claim that it is a right at all. What might it mean to say that the state has a right to punish offenders? Can there be such a right? Does rights vocabulary make room for such an assertion? It is unreasonable, I think, to expect to find a complete answer to these questions in the RECHTSLEHRE. Kant simply has no access to a reasonably sophisticated theory of rights as we do today. Nor does he see it as his aim to provide such a theory. But Kant does discuss rights, and there is reason to think that his discussion of rights can be plausibly understood in such a way that adequate meaning can be given to the content of the state’s right to punish. Kant follows Roman law in distinguishing between two types of rights (Rechte): rights in rem and rights in personam.11 The former are rights one has “over” a thing, while the latter are rights one has “against” other persons. In either case, a right gives the right-holder a legal capacity or power against other persons.12 But Kant adds another right to the list: rights in rem over persons.13 This is one’s legal capacity or power over persons and against the world. An example of such a right is the right of non-interference. More specifically, the rights of parents over their children is an example of such a right. Thus Kant delineates three kinds of rights: rights in rem, rights in personam, and rights in rem over persons. But what, if anything, do these rights have to do with the state’s right to punish? According to Kant, rights provide the lawful basis for obligating or binding others.14 The correlative of a right, then, is a duty. Rights generally impose duties on persons, just as duties generally imply rights. This means if everyone has a duty not to break the laws of the state, then the state has a right to legitimately punish offenders of the law. It is unclear precisely which right the state’s right to punish amounts to. Is it a right in rem, a right in personam, or a right in rem over persons? It is most fruitful to understand it as the state’s right in rem over persons because this right corresponds best to the right of noninterference. It makes sense to think of the state’s right to punish offenders as the state’s right to non-interference, or the state’s right to protect its interests such as stability against those who might threaten it by unlawful means. In the case of the state’s right to punish offenders, then, such a right both imposes a duty and constitutes a duty at the same time. It imposes a duty on its constituents not to break the law and thereby threaten the state’s stability. 11

Ladd points this out in his “Introduction” to the RECHTSLEHRE, p. xxiii. As Ladd writes of the sense of “Recht” in the RECHTSLEHRE, “. . . it is used for what we call a ‘right,’ . . . the kind of right that one person has against another. (As a legal right, this kind of right might be a legal capacity or a legal power).” See, Kant, RECHTSLEHRE, p. xvi. 13 Kant, RECHTSLEHRE, p. xxiv. 14 Kant, RECHTSLEHRE, pp. 43-5. 12

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Furthermore, on Kant’s view, the right to punish is also a categorical imperative (perfect duty) to punish. The state must punish. Both law and morality require it. Thus it appears that there is an underlying conception of a right at work in the RECHTSLEHRE, one according to which the right of the state to punish lawbreakers can plausibly be classified. This goes even further in explicating the foundations of a Kantian theory of punishment because it provides more depth to the sense of “punishment.” For on Kant’s view, punishment is the state’s legal power or capacity which binds or obligates its constituents to not interfere with the state’s interest in social stability. But there is more to Kant’s understanding of punishment than this. As opposed to the utilitarian who holds that considerations of social utility are either the sole or primary justification of punishment, Kant argues that utility considerations, while relevant, are never a primary reason why a person is punished for her wrongdoing. Concerning the need of guilt for punishment, Kant writes, Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being may never be manipulated merely as a means to the purposes of someone else. . . . He must first be found to be deserving of punishment before any consideration is given to the utility of his punishment for himself or for his fellow citizens.15 Furthermore, one’s guilt for committing a crime is both necessary and sufficient for punishment.16 And it is the guilt of a wrongdoer that imposes a perfect duty on the state to inflict punishment on the wrongdoer because, Kant might argue, retributive punishment is necessary to prohibit persons from gaining a social advantage as a result of their wrongdoings. The guilty deserve to be punished; justice demands retribution. However, it might be argued that a theory of punishment must also make a distinction between the criminal law and tort law.17 Although Kant makes some effort to distinguish what he calls “private and public crimes,”18 this is a long 15

Kant, RECHTSLEHRE, p. 100. Emphasis provided. Kant, RECHTSLEHRE, p. 102; Jeffrie G. Murphy, Kant: The Philosophy of Right, p. 141; Murphy, “Kant’s Theory of Criminal Punishment,” p. 82. 17 Murphy, “Does Kant Have a Theory of Punishment?” p. 510. 18 Kant, RECHTSLEHRE, p. 99. 16

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way from making the distinction between criminal law and tort law that, it might be argued, is crucial for a theory of punishment. But one must be careful not to impose on Kant’s view of punishment a standard that is not met even by contemporary legal theorists. For it is not clear precisely what the distinctions between criminal and tort law amount to.19 Contemporary philosophy of law has not yet reached consensus as to whether or not (or to what extent) the crime-tort distinction is a sound one. Thus it seems that requiring such a distinction of a theory of punishment is unreasonable. It is not denied that a valuable distinction between crimes and torts can be made. However, given the problematic nature of the crime-tort distinction in contemporary philosophy of law, Kant’s lack of providing such a distinction fails to preclude his claims about punishment as those which constitute part of a theory of punishment. Even if the crime-tort distinction is a prerequisite for a theory of punishment, there are passages in the RECHTSLEHRE that distinguish between two classes of legal transgressions (a point to which I shall return later). Although Kant does not distinguish between crimes and torts by name, his words serve as a basis for such a distinction. It follows that Kant does give an answer to the question, “What is the nature of crime and punishment?” Punishment is both the state’s right and categorical imperative (perfect duty) to inflict hard treatment or pain intentionally on an agent for what she does (or fails or attempts to do) wrongly.

19

Consider what one legal theorist says about the distinction: “The distinction is in fact not an easy one to make, either in theory or in practice. Attempts to state it have led to much inconclusive discussion. . . .” [W. H. Hitchler, “Crimes and Civil Injuries,” Dickenson Law Review, 39 (1934), p. 23]. This does not mean that the crime-tort distinction cannot or even should not be made. However, today there is little consensus about the theoretical apparatus that ought to serve as the justification of such a distinction. For example, Robert W. Drane and David J. Neal argue that there are at least four ways to attempt to justify the crime-tort distinction [Robert W. Drane and David J. Neal, “On the Moral Justification for the Crime/Tort Distinction,” California Law Review, (1985), pp. 398-421]. Of these ways, however, none of them is satisfactory. Richard A. Epstein writes, “. . . the entire matter is from a practical point of view far from clear. The substantive division between tort and crime will of course persist for the foreseeable future, no matter how fervently some might wish to collapse the one area into the other” [Richard A. Epstein, “Crime and Tort: Old Wine in Old Bottles,” in Randy E. Barnett and John Hagel, Editors, Assessing the Criminal: Restitution, Retribution, and the Legal Process (Cambridge: Ballinger Publishing Company, 1977), p. 257]. But Epstein also admits that “the relationship between crime and tort is much vexed in the judicial and academic literature” (Epstein, “Crime and Tort: Old Wine in Old Bottles,” p. 231), and that “the traditional bases for distinction are devoid of accuracy and analytic power” (Epstein, “Crime and Tort: Old Wine in Old Bottles,” p. 233).

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WHAT IS THE MORAL JUSTIFICATION OF PUNISHMENT? AND WHAT IS THE POLITICAL JUSTIFICATION OF PUNISHMENT? Now that we have a good sense of the nature of punishment from Kant’s perspective, it is time to consider a Kantian justification of punishment, morally and politically speaking.20 Kant might argue that desert is the primary justification of punishment, while considerations of utility or proper balances between benefits and obedience may serve as secondary justifications of punishment. Indeed, this is consistent with the above cited claim by Kant.21 But what might it mean to say that desert is the primary justification of punishment (both as an institution and as a particular penalty for a crime), while considerations of utility count as secondary justifications? It might mean that, given two or more different punishments that a criminal deserves for a given crime she commits, the state ought to impose on the criminal that punishment which best realizes social utility. For example, if, all things considered, a person commits major fraud and embezzlement which significantly contributes to the virtual collapse of a country’s economy, and is a contributory cause of some victim,s committing suicide as the result of losing all of her life savings in the fraud, and so forth, there may be a score of different punishments that this criminal deserves. Given the magnitude of the crime’s consequences, mens rea, etc., one such sentence might be capital punishment. Another might be life imprisonment without opportunity for parole. Yet another such punishment might be the state’s seizing of all of the criminal’s assets, along with forced, unpaid labor in an area where the criminal might do the society some good (especially economically), and where there is virtually no chance that she can harm anyone or anything. It appears that the latter of these three sentences is arguably what is deserved by the criminal (as are the other two). Yet this third punishment seems to realize a higher degree of social utility in a way the other two sentences would not. Thus, Kant might argue, other things being roughly equal insofar as desert is concerned, the state should punish the criminal so as to benefit society in the best possible way. What justifies punishment (both as an institution and particular forms of it) is primarily that the criminal deserves it. Secondarily, punishment is justified when those who deserve it are

20

Murphy does not clearly distinguish between these two sorts of justification. In fact, he ends up treating these two problems simultaneously. I take it, then, that what Murphy means is that it is a requirement of a theory of punishment that it provide a justification (moral or political) of punishment as a means of state coercion. 21 See note 15.

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treated such that society benefits more than it would if the deserved punishment of the criminal rendered a lesser social benefit. Thus Kant’s notion of punishment is that the wrongdoing of a guilty member of society imposes a perfect duty on the state to inflict pain on the offender. Such punishment is justified primarily because the guilty person deserves it. Secondarily, such punishment may be justified because it may have beneficial consequences (other than deterrence) for society or the criminal, or that punishment serves a deterrent function only. This Kantian view of the justification of punishment is in the spirit of the position that desert is always an important ethical consideration in deciding how the state ought to treat criminals. But it is not the only consideration. Nor is it a sufficient consideration.22 Thus far, I have provided Kantian replies to the first three of the questions adequate answers to which serve as necessary conditions of a theory of punishment. Now I turn to a Kantian account of criminal liability.

WHAT ARE THE PROPER PRINCIPLES OF CRIMINAL LIABILITY? One would expect, if Kant’s account of punishment is something like a theory, to find a sustained position concerning the conditions under which one deserves punishment for what one does. But in studying the RECHTSLEHRE one is disappointed on this score. Instead, Kant provides the reader with only two “hardly typical” cases in which it might be plausibly argued that one is excused from liability in regards to punishment.23 The first is a case in which a crime is committed for the purpose of the “honor of womanhood” (selfpreservation), while the second case is one in which a crime is committed from a sense of military honor.24 Does Kant think these are the only cases in which the punishment of the criminal is dubious according to “objectively appropriate”25 standards of justice? That this crucial point is undeveloped by Kant is insufficient to conclude that Kant probably has no theory of punishment because he has no answer to the question, “What are the proper principles of criminal liability?” For Kant makes statements in other contexts of the RECHTSLEHRE which suggest a notion, however undeveloped, of what Kantian criminal liability entails.

22

Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 84-5, 94. 23 Murphy, “Does Kant Have a Theory of Punishment?” pp. 524-30. 24 Kant, RECHTSLEHRE, pp. 106-07. 25 Kant, RECHTSLEHRE, p. 107.

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Some of Kant’s introductory remarks in the RECHTSLEHRE may serve as the bases of certain principles of liability. For instance, freedom is a negative property. It is, according to Kant, “the property of not being constrained to action by any sensible determining grounds.”26 Moreover, a person is an agent whose actions can be attributed to himself. A moral person, then, is one who has the freedom of a rational being under moral laws.27 A person’s act is right if it accords with duty, it is wrong otherwise. Kant refers to the latter as “transgressions.”28 But there are two types of transgressions: unintentional and intentional. A negligent act (“neglect”) is an unintentional action that is attributable to an agent, while a crime is an intentional action which is attributable to an agent.29 Not only does Kant’s distinction between negligence and crime hint at a distinction between different sorts of wrongdoing under the law, it also points to Kant’s insistence on the importance of the mental state of the agent at the time he committed a wrongful deed. Kant writes, “the state of mind of the subject, namely, whether he committed the deed with emotion or in cool deliberation, makes a significant difference in imputation.”30 This serves in part to counteract the view that for Kant the law concerns only that which is external.31 With this in mind, it is possible to construct Kantian principles of liability. An agent, X, is liable for an act, A, at a given time, tn, if and only if X performs A freely at tn.32 Moreover, if X is guilty, and if X is blameworthy for doing A, then X is punishable for A. But Kant points out that there are cases where X, in performing A, is culpable but not blameworthy for A. In such cases, X is not , punishable for doing A.33 Now X is, on Kant s view, a moral person. By this he means, in addition to what is said about moral persons above, what we might call an artificial person, such as a corporation.34 But there are, on Kant’s view, exceptions to the rule that moral agents who meet the conditions of liability must be punished for their transgressions. Kant 26

Kant, RECHTSLEHRE, p. 27. Kant, RECHTSLEHRE, p. 24. 28 Kant, RECHTSLEHRE, p. 25. 29 Kant, RECHTSLEHRE, p. 25. 30 Kant, RECHTSLEHRE, p. 30. 31 Murphy, “Does Kant Have a Theory of Punishment?” p. 523. 32 Elsewhere, it is claimed, Kant speaks of agents being legally responsible for their own acts of omission as well as their own acts of commission [See, Immanuel Kant, Lectures on Ethics, Louis Infield, Translator (London: 1930), pp. 59-60]. Although this view is found in one of Kant’s student’s notebooks and thus lacks a certain amount of authenticity concerning what can be rightly attributed to Kant himself, there seems to be no reason to think that such a view about omissions causes a difficulty for Kant’s metaphysic of morals as a whole. 33 Kant, RECHTSLEHRE, pp. 41-2, where Kant states, “although an act of self-preservation through violence is not inculpable (inculpabile) [unstraflich], it still is unpunishable (impunibile) [unstrafbar], …” 34 Kant, RECHTSLEHRE, p. 68, note 1; and p. 81, note 4. 27

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exempts “dethroned monarchs” from the list of candidates for liability: “The dethroned monarch . . . cannot be held accountable for, much less be punished for, his past administration, . . .”35 Nor can the sovereign be held accountable for whatever he or she does which amounts to a transgression.36 Kant’s reason for this is that it is the sovereign who punishes the transgressor, and one cannot punish oneself. Furthermore, Kant’s notion of liability requires that punishable agents must be persons because a liable agent is one whose humanity can be dishonored. Thus any Kantian principle of liability must make use of this notion. Candidates for liability are persons (excluding sovereigns or dethroned monarchs) who act freely (in the Kantian sense) and who are guilty. They are those persons to whom a transgression can be properly imputed in that they willed a punishable action.37 Thus it is possible to construct a Kantian notion or principle of liability from certain of Kant’s statements in the RECHTSLEHRE. This goes a significant distance toward meeting the fourth condition of a theory of punishment. Now let us turn to the fifth condition, asking whether or not Kant provides the conceptual resources to construct an adequate reply to the query, “What are the appropriate punishments?”

WHAT ARE THE APPROPRIATE PUNISHMENTS? Kant’s view of the appropriate punishments is that punishment should always be proportional to the harms and offences for which they are administered by the state:38 What kind and what degree of punishment does public legal justice adopt as its principle and standard? None other than the

35

Kant, RECHTSLEHRE, p. 89. Kant, RECHTSLEHRE, pp. 90f. 37 Kant’s insistence on criminal guilt as a necessary condition of punishment has played a role in the way most philosophers think about the matter. Ronald Dworkin argues, “It is paradigmatic for us now that punishing innocent people is unjust, . . . Most of us would reject out of hand any conception that seemed to require or permit punishing the innocent. It is a standing argument against utilitarianism, therefore, that it cannot provide a good account or justification of these central paradigms” [See Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), p. 75]. The influence of Kantian retributivism on contemporary thinking about punishment can hardly be underestimated. Furthermore, it is a mistake to underrate the centrality of this Kantian thesis as the basis for a retributivist answer to the question of criminal liability. 38 Murphy, “Does Kant Have a Theory of Punishment?” p. 530. 36

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principle of equality . . . , that is, the principle of not treating one side more favorably than the other. . . .39 Murphy interprets Kant’s view as amounting to the following: P is proportional to C if and only if P, ranked on a scale of punishments from least to most severe, stands on the scale of punishments at the same point that C, ranked on a scale of crimes from least to most serious, stands on the scale of crimes.40 Murphy argues that Kant is quite aware of certain problems that arise for a strict version of proportionality.41 Moreover, he notes other difficulties that arise for Kant’s proportionality doctrine.42 Although Murphy is dissatisfied with Kant’s failure to provide a supporting argument for the proportionality doctrine, he agrees that Kant’s proportionality doctrine is correct and that there is reason to think that the content of Kant’s METAPHYSIK DER SITTEN serves as a fundamental argument for this position on punishment.43 I agree with Murphy that Kant’s proportionality doctrine of punishment can be justified on coherentist grounds and in light of Kant’s general view of justice. However, I shall not expound on this point here.44 Nevertheless, it is important to see that Kant does something to answer the question of appropriate punishments. For Kant not only provides a basic principle of proportionality of punishment, he also cites what he believes to be easy cases of proportional punishment. For example, an agent who is guilty of (and responsible for) murder must be punished by death. Most, if not all, other cases of punishment do not (Kant avers) admit of a strict proportionality sort of punishment. Kant gives the example of rape, pederasty and bestiality: “For rape and pederasty, [the punishment is] castration, (after the manner of either a white or black eunuch in the sultan,s seraglio), and for bestiality the punishment is expulsion forever from civil society ...”45 Kant also argues that even though the rule of proportionality cannot always be administered “to the letter,” it can take into account the special features of a case such that rough proportionality may be achieved. Here Kant gives the example of the wealthy person who violently assaults another. In such a case the punishment might be to humiliate the 39

Kant, RECHTSLEHRE, p. 101. Murphy, “Does Kant Have a Theory of Punishment?” p. 530. 41 Kant, RECHTSLEHRE, pp. 132-33; Murphy, “Does Kant Have a Theory of Punishment?” p. 531. 42 Murphy, “Does Kant Have a Theory of Punishment?” p. 532. 43 Murphy, “Does Kant Have a Theory of Punishment?” p. 532. 44 Since Murphy does not argue that Kant fails to provide an answer to the query, “What are the appropriate punishments?” I shall assume that Murphy grants that Kant gives at least a basis of a reply to this question. 45 Kant, RECHTSLEHRE, p. 132. 40

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offender socially, rather than to have the one assaulted strike back the person of the higher class in a violent manner.46 Kant is conscious of the limits in applying his doctrine of proportional punishment. His point is that punishment, being something that is inflicted on an offender primarily because it is deserved, is to be neither too weak nor too strong. Punishment is to be administered fairly to avoid harming the humanity residing in the person punished. This serves the purpose of guarding against anti-retributivism that seeks to use, in some instances at least, overly harsh punishments simply to deter persons from committing further crimes. Far from being the harsh, vengeful view of punishment that is often attributed to Kant, his view turns out to be (in many respects) concerned with fairness and human dignity. Thus it seems that there are Kantian replies to each of the above five questions, answers which satisfy (to some extent) the necessary conditions of a theory of punishment. Although Kant does not answer these questions fully and explicitly, replies to them can be rationally constructed from certain of Kant’s statements about justice. There is, then, part of a foundation of a Kantian theory of punishment, even though Kant himself admits that he does not provide a theory of justice (and, by implication, a theory of punishment).

OBJECTIONS TO KANT’S RETRIBUTIVISM, AND REPLIES Given the above explication of a Kantian foundation of a retributivist theory of punishment, it is time to consider the overall plausibility of this position. I will clarify and assess some objections to Kant’s conception of punishment.

OBJECTION 1: THE IMPLAUSIBILITY OF PROPORTIONALISM A first objection to Kant’s principle of proportional punishment is the following: Though a conception of reciprocity explains why the guilty should be punished, it is not clear that this same principle will explain why like should be returned for like or even why the evil inflicted on the criminal should be of equal gravity with that which the criminal has inflicted on others. . . . ‘What evils are equal?’ does not admit of a purely formal answer. Thus a retributivism grounded on fairness can at most demand a kind of proportionality between crime and punishment - i.e., demand that we rank acceptable punishments on a scale of seriousness, 46

Kant, RECHTSLEHRE, p. 101.

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rank criminal offences on a scale of seriousness, and then guarantee that the most serious punishments will be matched with the most serious crimes, the next most serious punishments with the next most serious crimes, and so on. The ranking must be reasonable, of course, but there is no reason to suppose that it will be determined solely or even primarily by considerations of fairness, i.e., no reason to suppose that seriousness can be analyzed in terms of fairness.47 This objection, then, is that Kantian retributivism suffers from the problem of fairly assigning punishments: There is no conceptual tool available to the Kantian by which to ensure fairness in the meting out of punishment. There is, however, an answer to this conceptual problem. One might begin by imagining a situation of choice much like John Rawls’48 from which principles to govern institutions of punishment will be chosen. The parties in this hypothetical situation are ignorant of their respective positions in society. That is, they know not their respective talents, abilities, desires and inclinations. Although they do know certain facts about psychology and the like, they do not know the particular circumstances of their society. Moreover, each person in the hypothetical situation is interested in securing the greatest quantity of primary goods for herself. From this standpoint, each party must consider the possibility that she will disobey the law, no matter how much she tries to obey it.49 Under such conditions, then, it is reasonable to suppose that the parties in the original position would seek to agree on principles for the “matching” of punishments to crimes, according to their “seriousness.” But it is also reasonable to suppose that, under the veil of ignorance, persons would choose such principles fairly, just as (Rawls argues) principles of justice as fairness are chosen in the original position. Thus it is possible that fair Kantian principles of proportional punishment can be derived (in a hypothetical social contract manner). Moreover, to the extent that this objection poses a problem for retributivists like Kant, it is also a difficulty for utilitarian views of punishment. The fair 47

Murphy, “Kant’s Theory of Criminal Punishment,” pp. 85-6. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 118-92; J. Angelo Corlett, “Knowing and Believing in the Original Position,” Theory and Decision, 27 (1989), pp. 241-56; Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), Chapter 6. 49 For a defense of retributivism by an appeal to the Rawlsian social contract theory, see David A. Hoekema, “The Right to Punish and the Right to Be Punished,” in H. Gene Blocker and Elizabeth H. Smith, Editors, John Rawls’ Theory of Justice: An Introduction (Athens: Ohio University Press, 1980), pp. 239-69. 48

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matchings of punishments to crimes is recognized by leading punishment utilitarians like Bentham, who devotes an entire chapter to this difficulty as we will see in the next chapter.50 This point does not rescue Kantian retributivism from the problem of proportionality. However, it suggests that this difficulty is faced by utilitarians as well as retributivists.

OBJECTION 2: PUNISHMENT AND CIVIL DISOBEDIENCE There is one potential difficulty with Kant’s position on proportional punishment that, to my knowledge, is neither discussed by Kant himself nor in the Kant literature. It concerns the fact that Kant disallows an agent’s disobedience to the law in any form, even by way of civil disobedience: It is the people’s duty to endure even the most intolerable abuse of supreme authority. The reason for this is that resistance to the supreme legislation can itself only be unlawful; indeed it must be conceived as destroying the entire lawful constitution, because, in order for it to be authorized, there would have to be a public law that would permit the resistance.51 Justified disobedience to the law, according to Kant, involves “selfcontradiction.” Although this line about disobedience to law is itself problematic, I shall not focus on this matter here. My present concern is with the view, implied by Kant, that such disobedience is to be met with punishment. Is this a plausible view of civil disobedience?52

50

Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (New York: Hafner, 1948), Chapter 14. 51 Kant, RECHTSLEHRE, p. 86. In regards to Kant’s claim that “it is the people’s duty to endure even the most intolerable abuse of supreme authority,” compare Dworkin’s dictum, “Society ‘cannot endure’ if it tolerates all disobedience; it does not follow, however, nor is there evidence, that it will collapse if it tolerates some” (See Dworkin, Taking Rights Seriously, p. 206). 52 For a traditional analysis of civil disobedience, see Rawls, A Theory of Justice, pp. 363-91; “Legal Obligation and the Duty of Fair Play,” in J. P. White, Editor, Assent/Dissent (Dubuque: Kendall/Hunt Publishing Company, 1984), pp. 45-56; “The Justification of Civil Disobedience,” in J. P. White, Editor, Assent/Dissent, pp. 225-36. For discussions of the merits of the traditional analysis, see J. Angelo Corlett, Terrorism: A Philosophical Analysis (Dordrecht: Kluwer Academic Publishers-Philosophical Studies Series, Volume 101, 2003), Chapters 1-2; Joel Feinberg, “Civil Disobedience in the Modern World,” Humanities in Society, 2 (1979), pp. 37-68; Paul Harris, Editor, Civil Disobedience (Lanham: University Press of America, 1989), pp. 1-56.

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It appears that Kant does not take into consideration the distinction between legal and moral justification in disobeying the law. Even if Kant is right in arguing that a law permitting disobedience to the law makes the law selfcontradictory, it hardly follows from this that one is morally unjustified for civilly disobeying what they in good conscience believe to be a morally unjust law! And if one civilly disobeys just such a law, how ought they to be punished? That the civil disobedient should sometimes be punished is not a matter of dispute, since traditionalists such as Rawls argue that the civil disobedient does not resist appropriate arrest or punishment for performing the civilly disobedient act.53 It appears also that Kant’s notion of proportional punishment would have the consequence that if a moral agent, X, performs an act, A, which breaks a law, L, at a given time, tn, then X is to be punished for breaking L (by doing A) at tn, according to the seriousness of A. But what if X performs A at tn as a civil disobedient? Should the punishment of X be the same in each case? Previously I mentioned the fact that a criminal’s state of mind is relevant for Kant in making ascriptions of criminal liability. This point might be employed in distinguishing between regular criminal acts and civilly disobedient ones. Kant might maintain, then, that X must be punished for doing A at tn, but that X’s punishment is proportionately less if X does A (at tn) as a civil disobedient than if X does not do A (at tn) as a civil disobedient, where performing a civilly disobedient act involves doing it non-violently, publicly, conscientiously and with fidelity to law.54 Such conscientiousness and fidelity to law are part of X’s mental state in doing A. They are part of X’s basic motive for doing A. This gives Kant’s view of proportional punishment more plausibility as it aligns with our intuitions about punishing civil disobedients versus punishing regular criminals. For the civil disobedient’s doing A out of respect for law should be punished less than if she did A without regard for law (other things being equal).55

OBJECTION 3: CAPITAL PUNISHMENT AND HUMANITY AS AN END A third potential problem that arises for Kant’s account concerns the justification for administering the death penalty to murderers. In the same year that Kant published the RECHTSLEHRE, he writes, in the other part of the METAPHYSIK DER SITTEN, the following: 53

Rawls, A Theory of Justice, pp. 363-91. Other conditions of civil disobedience, according to Rawls, include publicity and non-violence (See Rawls, A Theory of Justice, pp. 363-91). 55 Dworkin, Taking Rights Seriously, p. 207. 54

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. . . it is an outrage to inflict punishments that dishonor humanity itself . . . Such punishments are not only more grievous to one who loves honor . . . than is the loss of life and possessions; they also make a spectator blush to belong to a race that can be treated in that way. . . . [we have a] duty to respect man even in the logical use of his reason: not to censure someone’s errors under the name of absurdity, inept judgment, and the like, but rather to suppose that under such an inept judgment there must be something true, and to seek it out. In doing so, one should at the same time expose the deceptive semblance . . . and thus, while accounting for the possibility of error, preserve the mistaken individual’s respect for his own understanding. . . . never burst out in complete contempt or deny the wrongdoer all moral worth, because on that hypothesis he could never be improved either - and this latter is incompatible with the idea of man, who as such (as a moral being) can never lose all predisposition to good.56 Here Kant seems to leave no room for the death penalty that he espouses in the RECHTSLEHRE as the state’s response to murder. For how is it that the infliction of the death penalty preserves or does not violate Kant’s claim that we should reason with persons so as not to violate their humanity? His insistence (in the RECHTSLEHRE) that murderers must suffer death does not seem to square with the above claim (in the TUGENDLEHRE) that we must “never burst out in complete contempt or deny the wrongdoer all moral worth, because on that hypothesis he could never be improved either.” However, once one delves beneath the surface of this apparent contradiction in Kant, one understands that there might be a Kantian solution to it. According to Kant’s moral theory, to dishonor the humanity in the person of another is to disrespect that person. And it is not at all clear just how punishment–even capital punishment–disrespects a person. Moreover, as Herbert Morris argues, punishment just does respect a criminal’s choices and desires.57 In short, punishment of any appropriate (correctly proportional) kind does not treat the criminal as a mere means to an end, but rather as an end in herself, i.e., as a freely choosing, thinking self. Thus, it might be argued, there is no 56

Immanuel Kant, The Metaphysical Principles of Virtue, James W. Ellington, Translator (Indianapolis: Hackett Publishing Company, 1983), pp. 128-29. Hereafter referred to as the “TUNGENDLEHRE.” See also Thomas E. Hill Jr., “Humanity as an End in Itself,” Ethics, 91 (1980), p. 96. 57 Herbert Morris, “Persons and Punishment,” The Monist, 52 (1968), pp. 476-501.

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contradiction between Kant’s affirmation of the need for capital punishment regarding some criminals (on the one hand) and his moral doctrine of honoring the humanity in persons (on the other hand). Whether or not this Kantian line of reasoning is itself plausible, it might well be enough to save Kant from the apparent puzzle posed by this third objection. There seems to be nothing contradictory in Kant’s saying both that every person (including criminals) must never have her humanity dishonored and that capital punishment is required for murderers. For on Kant’s view, putting a murderer to death need not (nor should it) entail the disrespecting of that criminal.

OBJECTION 4: THE DUTY TO PUNISH AND THE RIGHT TO PARDON A fourth objection to Kant’s view of punishment concerns his notion that punishment is a categorical imperative: if it is true that the state has a perfect duty to punish law violators, then from where does the sovereign’s right to pardon derive? To pardon is to release from the legal punishment for an offence, which assumes that the person being pardoned by the state is guilty of committing the crime with which she is charged and convicted by way of due process. Kant admits that the sovereign’s right to pardon is “the most slippery” of all the rights of the sovereign.58 Moreover, Kant holds that a sovereign may only justifiably pardon certain criminals who wrong the sovereign. He argues that a criminal may be justifiably pardoned only if pardoning the criminal does not endanger the citizenry.59 It would be a travesty of justice, Kant believes, for the sovereign to pardon a criminal for wronging another citizen.60 Nevertheless, the sovereign’s right to pardon certain of those criminals who wrong only the sovereign seems to pose a difficulty for Kant’s view. For the state’s perfect duty to punish criminals leaves absolutely no room for pardoning of any kind. Indeed, this is what is meant when one says, “The state has a perfect duty to inflict pain on lawbreakers.” This is what is meant when it is said that punishment and the law of retribution are categorical imperatives. Yet how can Kant’s own claim that punishment (e.g., the state’s right to punish) is a categorical imperative be reconciled with his claim that a sovereign has a right to pardon certain of those who commit crimes against the sovereign? Furthermore, is it not the case that many or all crimes against the sovereign are

58

Kant, RECHTSLEHRE, p. 108. Kant, RECHTSLEHRE. p. 108. 60 Kant, RECHTSLEHRE, p. 108. 59

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simultaneously crimes against the state and its citizens (at least, in certain types of regimes)? If this is true, then how can pardoning criminals ever be justified? I see no way out of this problem for Kant. Nor do I understand what might have motivated him to hold what might be referred to as “Kant’s Pardon Postulate.” It seems to have been an afterthought, one that haunts his otherwise mostly plausible view of punishment. For Kant’s view now has the onus of (a) showing that retributive punishment as a categorical imperative is reconcilable with the sovereign’s right to pardon those who commit crimes against the sovereign, and (b) explain which sorts of crimes against the sovereign do not also amount to crimes against the citizenry.61 Kant is faced with a dilemma: Either he must give up his idea that criminal punishment is a categorical imperative, or he must sacrifice his Pardon Postulate.62 It is unclear to me how Kant might solve this difficulty without requiring significant alterations in his account of punishment. On the one hand, recanting the categorical imperative status of the state’s right to punish offenders surely casts an entirely different light on his view. For then punishment becomes the state’s prerogative to intentionally inflict pain on the guilty. This in turn requires of Kant an account of the precise nature of such a prerogative. It is not obvious that there is a plausible Kantian reply to these questions. Kant’s view is questionable to the extent that such a reply is lacking. On the other hand, Kant’s giving up his notion of criminal pardon, it might be argued, raises serious doubts about the general plausibility of Kant’s view of punishment. For it is a crucial element of any plausible theory of punishment, on this line of reasoning, that the system of justice possess a working set of checks and balances one of which includes the state’s right to pardon certain of those who are found guilty of an offence. If it is true that a plausible theory of punishment requires an account of the state’s right to pardon, then Kant cannot simply give up this claim to solve the problem at hand. It appears, then, that the categorical imperative status of the state’s right to punish is central to a Kantian account of punishment. If the state’s right to pardon is crucial to any plausible theory of punishment, then there appears to be an irreconcilable puzzle for Kant on the matter of punishment. How can the

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Note that the Kantian cannot escape the force of this criticism by arguing that what Kant means when he says that punishment is a categorical imperative is that punishment is an imperfect duty, not a perfect one. This allows room for Kant to argue in favor of the Pardon Postulate near the end of his discussion of punishment in the RECHTSLEHRE. However, this move is not open to Kant because it misunderstands the nature of the categorical imperative as, say, a hypothetical imperative. Such a reply to this fourth objection is simply not in the spirit of Kant’s fundamental views. 62 Or, Kant must explain further the basis for the “right to majesty” (See Kant, RECHTSLEHRE, p. 107).

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perfect duty of the state to punish the guilty be reconciled with Kant’s claim that the state has a right to pardon? I suggest that a Kantian theory of punishment resolve the problem between the state’s alleged perfect duty to punish crimes and its right to pardon by jettisoning the idea that the state has a perfect duty to punish. Support for this suggestion might derive from a normative interpretation of the venerable legal maxim: De minimis non curat lex (“The law does not concern itself with trifles”). On this view, the state would nonetheless retain the right or prerogative to punish. The state would be justified in punishing criminals, so long as it did so in proportion to the harms they inflict on others against the law. As for the state’s right to pardon, I suggest that a Kantian hold to the value of such a right, namely, in the kinds of cases where offenders are convicted and sentenced to prison terms under a law which society decides by its better judgment is unjust. If I was charged, tried for and convicted of crime X, and X is no longer a crime, and I am still in prison, then the state should have the right to pardon me given that X is no longer a punishable act. There are plausible Kantian replies to the first objection to Kant’s view of punishment, and there seem to be plausible replies to certain other objections to Kant’s position in regards to both the punishment of civil disobedients and Kant’s claim that murderers must be put to death with his insistence that no matter how immoral a person may appear in light of their actions one should not treat him or her as having no humanity or as being incapable of improvement. But there seems to be no manner by which to plausibly reconcile Kant’s claim that punishment is a categorical imperative with his claim that the sovereign has a right to pardon certain of those who commit crimes against the sovereign only. I have constructed a foundation of a Kantian theory of punishment as the state’s right and perfect duty of justice to intentionally and proportionally inflict pain on criminals. It is not an account which answers every question about punishment, nor is it an account which considers every objection which has been or might be raised against Kant’s view.63 However, it is the beginning of such a theory. For it provides, via rational reconstruction, plausible replies to each of the five questions believed to require answers by any theory of punishment. Furthermore, some (previously posed) objections to Kantian retributivism are successfully rebutted. Additional queries about Kant’s view are raised, but in the end they serve to illuminate the Kantian perspective. Finally, even though there are some difficulties concerning Kant’s view of punishment, these problems do nothing to threaten the status of Kant’s claims as a foundation of a theory of punishment. 63

For example, one might challenge Kant’s claim that guilt is both a necessary and sufficient condition of punishment.

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The extent to which my argument succeeds is the extent to which Kant’s account of punishment is justifiably seen as the basis of a somewhat sophisticated theory of punishment, one which, however plausible, may be rescued from the stereotypes which prevent its receiving the serious philosophical consideration it deserves.

CHAPTER 4 ASSESSING RETRIBUTIVISM Having answered some concerns with Immanuel Kant’s particular version of retributivism, let us consider a variant of it. Although some of the concerns, such as the one regarding proportional punishment, are similar between Kant’s retributivism and the new version of it, the replies to these concerns in this chapter will focus on the notions of proportional punishment and desert, and will, I trust, enable us to make better sense of the nature of retributivism and its plausibility. In light of the previous chapter which set forth and evaluated some of the basics of a Kantian theory of retributive punishment, and in light of various definitions of “retributivism” which John Rawls and some others provide, it is important now to set forth and defend a version of retributivism that seems to withstand some of the most important objections to it. In congruence with the first desideratum of a theory of punishment stated in Chapter 2, I shall define “retributivism” as that theory of punishment which advocates the hard treatment by the state (through an institutionally approved system of due process) of an offender because the guilty offender deserves it, based on her degree of responsibility and in proportion to the harm caused by her wrongful act, omission, or attempt. As Richard Burgh argues, “Justice, in other words, not only requires a principle of desert, but also requires a principle of proportionality between the gravity of the offence and the punishment deserved.”1 Considerations of social utility might in some cases figure into the sentencing of criminals, though they need not. On this view, the state has a right and a duty, but not a perfect duty (as Kant argues), to punish criminals. This version of “positive retributivism,” however, is not inconsistent with the principle of “negative retributivism,” namely, that innocents ought never to be punished in that such punishment is a violation of the proportional punishment of offenders. Indeed, my version of retributivism gladly embraces both positive and negative retributivism.2

OBJECTIONS TO RETRIBUTIVISM, AND REPLIES Joel Feinberg levels some criticisms against what he refers to as “exact retributivism”: the view that whichever punishment is inflicted on a guilty party 1 2

Richard Burgh, “Do the Guilty Deserve Punishment?” The Journal of Philosophy, 79 (1982), pp. 197-98. For descriptions of positive and negative retributivisms, see R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), p. 12.

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must match precisely the offence committed by the offender.3 This version of retributivism is to be contrasted not only with Rawls’ construal of retributivism (noted in Chapter 2), but also with the version mentioned by H. L. A. Hart: This is the deeply entrenched notion that the measure should not be, or not only be, the subjective wickedness of the offender but the amount of harm done. It is this form of retributive theory that seems to be reflected in the common practice of punishing attempts less than the completed crime, or punishing criminal negligence which has a fatal outcome more severely than the same negligence which does not cause death.4 There is also Michael S. Moore’s version of retributivism, according to which punishment is justified by the moral culpability of those who receive it. On his view, it is the morally culpable who deserve punishment.5 Furthermore, there is Jeffrie G. Murphy’s understanding of retributivism as the view that punishment is justified because the wrongdoer deserves it.6 However, “in order to render punishment compatible with justice, it is not enough that we restrict punishment to the deserving, but we must, in addition, restrict the degree of punishment to the degree that is deserved.”7 This supports my argument, contra Rawls, that a plausible retributivism must hold that both the institution of punishment and 3

Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), pp. 116-18, emphasis provided. It should be kept in mind, however, that Feinberg himself espouses a kind of expressivist retributivism in Feinberg, Doing and Deserving, pp. 100f.; Jean Hampton, “How You Can Be Both a Liberal and a Retributivist: Comments on ‘Legal Moralism and Retributivism’ by Jeffrie Murphy,” Arizona Law Review, 37 (1995), p. 106. 4 H. L. A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), p. 234. For discussions of the “problem” of punishing failed attempts, see Joel Feinberg, “Equal Punishment for Failed Attempts: Some Bad But Instructive Arguments Against It,” Arizona Law Review, 37 (1995), pp. 117-33; Problems at the Roots of Law (Oxford: Oxford University Press, 2003), Chapter 4; Barbara Herman, “Feinberg on Luck and Failed Attempts,” Arizona Law Review, 37 (1995), pp. 143-49; Gary Watson, “Closing the Gap,” Arizona Law Review, 37 (1995), pp. 135-41. 5 Michael S. Moore, “The Moral Worth of Retributivism,” in Ferdinand Schoeman, Editor, Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press, 1987), p. 179. For a critique of Moore’s position, see David Dolinko, “Some Thoughts About Retributivism,” Ethics, 101 (1991), pp. 555-59. Other versions of retributivism include those found in Vinit Haksar, “Excuses and Voluntary Conduct,” Ethics, 96 (1986), pp. 317-29; James B. Brady, “A Rights-Based Theory of Punishment,” Ethics, 97 (1987), pp. 792-95; Vinit Haksar, “Rights and Excuses: A Reply to Brady,” Ethics, 97 (1987), pp. 796-99. 6 Jeffrie G. Murphy, “Legal Moralism and Liberalism,” Arizona Law Review, 37 (1995), pp. 73-93; Herbert Morris, “Professor Murphy on Liberalism and Retributivism,” Arizona Law Review, 37 (1995), p. 96. 7 Burgh, “Do the Guilty Deserve Punishment?” p. 197.

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particular forms of it admit of retributivist rationales. Thus whereas the primary retributivist justification for both the institution of punishment and particular punishments is that the offender deserves it, the secondary retributivist justification for both the institution of punishment and particular punishments may consider aspects of social utility. J. D. Mabbott argues similarly, …while punishing a man and punishing him justly, it is possible to deter others, and also to attempt to reform him, and if these additional goods are achieved the total state of affairs is better than it would be with the just punishment alone. But reform and deterrence are not modifications of the punishment, still less reasons for it.8 Furthermore, as is congruent with what Kant argues in the quotation in the previous chapter, the desert-based justification is lexically prior to the justification(s) based on social utility. In taking Kant seriously the retributivist need not have a difficulty in appealing to social utility considerations in expounding the concept of desert, in justifying both the institution and practice of punishment. For even Kant himself, too often misconstrued as the founder of pure retributivism, has given some evidence that he is what is commonly referred to as a “mixed” or “hybrid” punishment theorist. Moreover, the conception of retribution that forms the basis of my version of retributivism is an admixture of repayment, desert, fair play, annulment, and denunciation theories9 of retribution. In other words, my version of retributivism entails a conception of retribution that holds that the state has a right and imperfect duty to punish offenders in proportion to their harmful wrongdoings because such offenders ought to be repaid for their harmful wrongdoings as a matter of justice and fairness to right a harmful wrong, and because society has an obligation to denounce such harmful wrongdoing.10 While some of these conceptions of retribution in themselves have been shown to be insufficient or otherwise problematic grounds for punishment, they are in combination a rather impressive set of retributive conceptions that, I think, stand as perhaps the most plausible overall conception of retribution and grounds for punishment more generally. This reconstrual of Kant’s retributivism seems to cast doubt on some attempts to raise fallacious objections to retributivism, as if even Kant’s 8

J. D. Mabbott, “Punishment,” Mind, 48 (1939), p. 153. For a brilliant articulation of expressive theories of punishment in general, see Feinberg, Doing and Deserving, Chapter 5. 10 For an analysis of these and other conceptions of retribution, see John Cottingham, “Varieties of Retribution,” The Philosophical Quarterly, 29 (1979), pp. 238-46; Nigel Walker, “Even More Varieties of Retribution,” Philosophy, 74 (1999), pp. 595-605. 9

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paradigmatic retributivism fits into the straw person description that is entailed by the horn of some dilemmas allegedly faced by retributivism: …Giving a rationale for a retributivist constraint can easily slip into identifying a goal whose promotion generally justifies, in a consequentialist fashion, the honouring of that constraint. Yet putting the goal in our sights in this way can easily mean the betrayal of the proper retributivist attitude, according to which the relevant constraints are fundamental moral factors, on a par with the natural rights invoked by some political theorists… …We think that retributivists face a difficult choice. They can refuse to give a rationale for the desert-constraints they invoke, as many natural rights theorists refuse to give a rationale for rights. In that case they certainly cannot be accused of covert consequentialism but their attachment to the constraints in question looks arbitrary; fundamental natural rights are difficult enough to stomach, fundamental natural deserts look wholly unpalatable. Alternatively, retributivists can offer a rationale for their favoured constraints, in the fashion of the theorists reviewed in this section. In that case they may succeed in making the constraints look more attractive but their retributivism begins to look questionable; they begin to look like consequentialists who want to promote the factor quoted in the rationale and who defend the constraints as means for generally promoting it.11 As we saw in the previous chapter, Kant is no pure retributivist as so many philosophers have misconstrued him to be. And if even Kant’s paradigmatic ideas on retributivist punishment do not fall prey to this sort of facile objection which assumes that it is some kind of embarrassment for retributivists to, in justifying punishment as an institution or particular forms of it, consider matters of social utility, then exactly which retributivist does? Since this objection fails to embarrass Kant’s view, then precisely which retributivist would be embarrassed by it? And are those really the versions of retributivism, purist though they be, that are the more plausible ones in punishment theory? It is time that punishment theorists stop dredging up straw persons to burn in their caldrons of ideologically motivated argumentation and deal with more carefully constructed versions of that genre of theories that seem to escape the full force of even the most diligent philosophical criticism. That a species of retributivism 11

John Braithwaite and Philip Pettit, Not Just Deserts (Oxford: Oxford University Press, 1990), pp. 164-65.

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may entail at some level consequentialist rationales is not what spells doom for it. Rather, what critics need to show, if it can be shown, is that it is conceptually or logically impossible that a truly retributivist standpoint can, given the notions of desert and proportional punishment, withstand non-question-begging critiques which would render retributivism uniquely problematic among punishment theories. As we know, retributivists such as Kant argue that what truly justifies punishment as the state’s proper response to crime is that the criminal deserves to be punished in proportion to the wrongfulness of her action and harmfulness of it. As we have seen in the previous chapter, even Kant admits that considerations of social utility count, albeit in a secondary way, toward the justification of punishment. Although Kant argues that punishment is the state’s right and perfect duty, a Kantian might, as I do, hold a more moderate position, namely, that punishment is the state’s right and duty, though not a perfect duty. A still weaker version of retributivism might hold that the guilty should be punished because they deserve it, while the stronger versions would contend, as I do, that desert as responsibility and proportional punishment are crucial to what justifies punishment. The point is that Feinberg’s criticism against “exact” retributivism and Braithwaite and Pettit’s charge of retributivist consequentialism miss the mark against anything but a weak semblance of the theory, as it is unclear precisely which philosopher (if not Kant, then who?) holds such a purist view of retributive punishment. Nonetheless, Feinberg points to the general problem of proportional punishment, to which I now turn. What is the problem of proportional punishment, and for whom is it a problem? At base, the problem of proportional punishment is stated by Ted Honderich when he articulates what might be called the “Incommensurability Objection to Retributivism.” The objection states that: “…no penalty can be regarded as either equivalent or not equivalent … to a man’s culpability in his offence. This is so because the distress of a penalty and the culpability of an offender are not commensurable. There are no common units of measurement.”12 I shall refer to this as the “Problem of Proportional Punishment.”

THE PROBLEM OF PROPORTIONAL PUNISHMENT Of course, the Eighth Amendment to the United States Constitution makes a provision against “cruel and unusual punishment,” placing limitations on how and the extent to which criminals are to be punished. Basically, a punishment that is significantly disproportionate to the seriousness of the offence committed is considered cruel and unusual. I would add, however, that not only 12

Ted Honderich, Punishment, Revised Edition (London: Penguin, 1976), p. 28.

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ought the law to place upper limits on disproportional punishment relative to crimes committed, it ought to place lower limits on it as well. Far from being an argument for a version of exact proportionality that falls prey to the problem of practicality in punishment, it is simply a concern that we neither “over punish” nor “under punish” criminals, at least not significantly (I write “not significantly” here because proportional punishment is always approximate, rarely, if ever, exact, as noted earlier). Moreover, the wording of the Eighth Amendment is sufficiently imprecise such that it is unclear just what amounts to “cruel and unusual punishment.” Surely the unusualness of a mode of punishment ought not to be a good reason to not employ it, so long as it “matches” in close approximation the harm caused by the criminal in light of the facts of the case. So what seems to be doing the work in the “cruel and unusual punishment” amendment is rather the extent to which a particular punishment amounts to cruelty. Simply appealing to intuitions on this matter is likely to uncover a plethora of divergent views about which punishments are cruel, and under what circumstances. What is needed, then, is a set of guidelines for the employment of proportional punishment in order to inflict punishment in a fair and just manner. Jeremy Bentham’s Rules for Proportional Punishment. The problem of proportional punishment pertains to the several issues regarding the extent to which a criminal is punished, assuming, of course, that she ought to be punished at all. At the outset of this pivotal discussion, it is important to point out that no positive theory of punishment can escape dealing with the problems that proportional punishment presents. And this fact is recognized by competing punishment theorists, and not simply by retributivists. Jeremy Bentham, for example, articulates no fewer than thirteen principles of proportional punishment, ones that bear the tell tale signs of a deeply utilitarian conception of punishment.13 I believe that it is instructive to consider each of them in turn as a propadeutic to my articulation and defence of a set of retributivist principles of proportional punishment. From the starting point that the purpose of law, when it maximizes social utility, is to prevent crime and wrongdoing, Bentham lists “rules or canons by which the proportion of punishments to offences is to be governed.”14 The first rule is that “the value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.”15 By “profit” Bentham means to include, not only, say, monetary, but psychic and other forms of benefit that a criminal might experience as the result, partially or 13

Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (New York: Hafner, 1948), Chapter XIV. 14 Bentham, An Introduction to the Principles of Morals and Legislation, p. 179. 15 Bentham, An Introduction to the Principles of Morals and Legislation, p. 179.

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otherwise, of her wrongdoing. A retributivist can concur with this rule to the extent that it places a lower limit on punishment as that which would somehow be enough to counter-balance whatever gains the criminal has received due to the commission of her crime. This principle seems to enjoy the support of the dictum that no criminal should be permitted to benefit from her own wrongdoing. Bentham’s second rule of proportional punishment states that “the greater the mischief of the offence, the greater is the expense, which it may be worth while to be at, in the way of punishment.”16 This too is a principle with which a retributivist might agree. For insofar as punishment of the guilty is an expense to be borne by the law abiding in society, there seems to be good reason to think that the greater the offence, the more the state is justified in utilizing resources to punish the offender. Few, it would seem, would complain if the state used significantly more resources to punish duly convicted murderers and rapists than it did to punish petty thieves. In general, then, this rule seems helpful as a partial guide to sentencing criminals. Bentham’s third rule of proportional punishment, however, seems to make it difficult for the retributivist to accept as plausible: “Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.”17 Among other things, this rule assumes that deterrence is a major factor, normatively speaking, in the punishment of criminals. But though the retributivist denies this assumption, as I have argued, the Kantian retributivist need not deny that deterrence plays a secondary role in punishment. In any case, the retributivist might argue that the main reason why, say, the punishment for murder ought to be more severe than the punishment for rape that does not involve murder is that the crimes, horrible as both are, are simply different in scope of injury. Thus the murderer deserves the harsher punishment than the rapist, in general. If it turns out that this schema of punishment deters some would-be murders from raping and killing their victims, so be it. But the primary reason why punishments are meted out is not deterrence, but proportionality: making the punishment fit the crime’s severity of harm to the victim(s). Thus for this reason, rule three of Bentham’s must be rejected by the retributivist as a primary determinant of proportional punishment. Bentham’s fourth rule of proportional punishment is that “the punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.”18 I assume that what this means, roughly, is that given the complexities of 16

Bentham, An Introduction to the Principles of Morals and Legislation, p. 181. Bentham, An Introduction to the Principles of Morals and Legislation, p. 181. 18 Bentham, An Introduction to the Principles of Morals and Legislation, p. 181. 17

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how a crime might be committed, the punishment schema for that crime ought to include disincentives for criminals to commit worse, rather than lesser, forms of that crime. For instance, rape might or might not involve torture, or murder, or sodomy, etc. In any case, the punishments for rape ought to include, this rule states, different levels or forms of punishment for rapists contingent on the extent of their harm(s) to the victim(s). Thus rapists who murder their victims ought to be punished more severely than those who do not, etc. This much seems acceptable enough to the retributivist. However, when Bentham writes of a criminal’s “motive” there seems to be an implication that the deterrence of criminals is of primary importance, which must be denied by the retributivist as being a primary reason to punish in a particular manner. Rule five states that “the punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given.”19 This rule seems to state that there is an upper limit to punishment, namely, that it ought never to go beyond what the contents of the remainder of Bentham’s rules for proportional punishment stipulate. But Bentham goes on to claim that “whatever mischief is guarded against, to guard against it at as cheap a rate as possible.”20 This implies that little or no waste is to be tolerated in the criminal justice system insofar as punishment is concerned. This seems to be an aspect of Bentham’s fifth rule with which retributivists ought to concur. Within reason and proportionality, the cost (to law abiding citizens) of punishment ought to be reduced to the cost that is necessary to punish appropriately duly convicted criminals. In the U.S., for example, this might mean that duly convicted criminals such as rapists and other violent offenders should be treated significantly more harshly than they are currently treated, generally speaking. But in many prisons, criminals such as these have access to televisions, music, weight rooms, and some athletic facilities. Astonishingly enough, some criminals duly convicted of violent offences have earned college degrees while in prison, and others trained for the Olympic Games (subsequently obtaining positions on the U.S. Olympic team!) while in prison (These are just some of the “oddities” that millions of U.S. taxpayers would find morally problematic given that they pay billions of dollars annually of their non-tax monies for tuition and fees for college studies and athletic facilities). And these are facts about some of the regular security prisons, not the “minimum security” ones. Perhaps the U.S. criminal justice system is confused about the meaning of “punishment” as hard treatment, thinking that it is justified to “punish” criminals in ways that amount to their receiving better or equivalent food, shelter and facilities than do even some of our university students, and certainly than do the U.S. homeless and many of the working 19 20

Bentham, An Introduction to the Principles of Morals and Legislation, p. 182. Bentham, An Introduction to the Principles of Morals and Legislation, p. 182.

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poor. Such facilities and treatment hardly count as punishment, but serve as stark reminders that the U.S., in the name of its declaring itself to be a “civilized” country, has insufficient moral fortitude to treat harsh criminals the way proportionately hard treatment would dictate. The disheartening fact is that it currently costs about as much to house a criminal in U.S. prisons as it does to house a student in many private U.S. universities. Obviously, this implies that U.S. taxpayers spend significantly more to support duly convicted violent offenders than they do to support public college and university students.21 This alone bespeaks volumes about how the U.S. violates Bentham’s concern for frugality in the costs of punishment. Although it might be difficult to avoid the high costs of court appeals and due process (except, of course, in some measure by delimiting trial judges’, trial attorneys’ and other legal professionals’ salaries in general), it is certainly not difficult, except for those who are morally weak-willed and have no desire for true justice, to cut dramatically the costs of imprisoning duly convicted criminals, especially those of the harsher varieties. By forcing them to serve as unpaid workers of the state for the entire duration of their sentences, costs of prison maintenance and monitoring, highway construction, litter removal, sewage maintenance, and other undesirable tasks can be reduced substantially for taxpayers. By feeding such criminals only as much as is necessary to sustain them as our 10-12 hour daily workers, we need not compensate them at all for their work, as most of them owe much more than they can pay to their victims and society in the first place for the commission of their harsh crimes. They are not owed entertainment or sports facilities. They can, as in a few cases, grow and harvest and continue to prepare and serve their own foods (vegetarian meals are nutritionally adequate, no meats are necessary), at least most of them, making a significant portion of the prison system self-supportive, economically speaking. To those who are overly concerned with rehabilitation of criminals (as if that were an uncontroversial primary moral concern regarding punishment of harsh criminals), it might be pointed out that for the prisoners who are freed upon serving their deserved time for crimes such as theft, rape, serious and violent assault, etc., they have a “resume” that would qualify them for a variety of jobs, ranging from janitorial positions to litter removal to road and bridge construction, to farming, etc. Indeed, each such ex-convict can then claim to have done “volunteer” (e.g., unpaid) work. Failing or refusing to punish harsh criminals in proportion to the extent of their harms to others has more often than not resulted in a criminal justice system that is far more expensive than it need be. 21

One reason why U.S. taxpayers find themselves in this morally problematic position is that some of their elected officials fall prey to the “influences” of lobbyists for companies that construct new “state of the art” prison facilities.

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The point here is that Bentham avers in rule five that punishment ought not to be more expensive than is necessary to punish duly convicted harsh criminals appropriately. And there is surely no need to overfeed duly convicted harsh criminals (i.e., feed them more than what is absolutely necessary for their survival), to provide for them adequate health care as if they were law-abiding citizens (after all, millions of law-abiding citizens in the U.S. have either no or inadequate health care, sports facilities, etc.), at absolutely no cost to the criminals! Bentham’s words here ring loudly in the ears of those who are honest enough to question the severe problems of under punishment in the U.S. criminal justice system. Prison terms ought to mean what they once implied (some meaningful degree of fear, horror or dread), and what it still implies in certain countries, say, in Mexico, Colombia, or certain other Latin American countries: hard treatment.22 And there are millions (perhaps billions) of dollars annually that can be saved in or redirected from the U.S. system of criminal “justice” to educate other citizens, for example, by simply treating duly convicted harsh criminals as they ought to be treated: with adequate and timely due process, one meal a day (the contents of which are grown and harvested mostly by prisoners themselves), minimal health care (if any),23 no libraries, no sports facilities, no televisions, no computers, no musical instruments or other electronic devices, etc., smaller cell blocks in newly built facilities (so as to house more criminals per prison area), all the while working them vigorously without any monetary compensation whatsoever, regardless of ethnicity or gender. This would certainly render the punishment system worthy of the term “punishment.” And it would surely deter most folk from ever wanting to become an inmate (A point that would impress utilitarians). Indeed, it would mean horror for even the most hardened criminals, especially if the U.S. criminal justice system eliminated early releases and paroles, which, with recidivism rates as high as they are in the U.S., cost U.S. taxpayers even more for criminal justice procedures. Many prison reformist philosophers will object to my reasoning along the following lines: When a man is sentenced to imprisonment he is not sentenced also to partial starvation, to physical brutality, to pneumonia from damp cells and so on. And any movement which makes his food sufficient to sustain health, which counters the 22

This is not to suggest that all Latin American criminal justice systems are any different than the U.S. in exercising due process properly and consistently. 23 Of course, the Eighth Amendment to the U.S. Constitution states that deliberate indifference to serious medical needs of prisoners violates the cruel and unusual punishment clause. But that this clause ought to cover self-inflicted wounds, or anything but life or death emergencies is another matter entirely.

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permanent tendency to brutality on the part of his warders, which gives him a dry or even a light and well-aired cell, is pure gain and does not touch the theory of punishment…If it is said that every such reform lessens a man’s punishment, I think that it is simply muddled thinking which, if it were clear, would be mere brutality.24 But in response to these reformatory words, it is helpful to keep in mind that I am specifically directing my reasoning at duly convicted harsh criminals, i.e., those who have committed brutal rapes and murders, etc. (Nothing I have argued runs counter to common decency for all but the harshest of criminals. They ought to be treated in humane ways in light of the proportional punishment that they are to receive for their harmful wrongdoings). But on what grounds would the ad hominem accusation of “muddled thinking” be justified in light of this consideration? On what grounds is a duly convicted murderer, having received the rightful appeals that proper due process accords, entitled to even a modicum of decency—and at taxpayer’s expense? What is genuinely “muddled thinking” is the reformist conflation of how minor criminals and harsh ones ought to be treated. We ignore the differences of how they ought to be treated at our own expense, and in the meantime make a mockery of both proportional punishment and justice. The morally sensitive retributivist, it would seem, ought to embrace Bentham’s idea concerning the frugality of punishment. Expenditures saved from the penal system ought never to threaten the quality of due process of law for all persons. Moreover, whatever monies can be saved without posing a threat to the quality of due process might be redirected to assist truly needy citizens who are law abiding, both within and external to U.S. borders.25 Bentham’s sixth rule of proportional punishment is one with which even Kant can concur: “That the quantity actually inflicted on each individual offender may correspond to the quantity intended for similar offenders in general, the several circumstances influencing sensibility ought always to be taken into account.”26 Basically, what this means is that a certain kind and amount of punishment ought to accrue to criminals who commit certain crimes under relevantly similar circumstances, taking into account mitigating factors such as the criminal’s state of mind at the time of the offence, etc. This seems to be an acceptable rule – even necessary – in order to determine proper proportional punishment. 24

Mabbott, “Punishment,” p. 165. Also see Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003). 25 For a useful philosophical exchange on the topic of assisting those in need, see The Journal of Ethics, 8:4 (2004). 26 Bentham, An Introduction to the Principles of Morals and Legislation, p. 182.

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However, what of Bentham’s seventh and eighth rules of proportional punishment? Rules seven, eight, and nine are supplements to rule one. Rule seven states that “to enable the value of the punishment to outweigh that of the profit of the offence, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.”27 And rule eight states that “Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity.”28 I take it that the combined meanings of these rules suggest that in cases where it is unclear what the exact profit of an offence is for a criminal, the extent to which such a profit is unclear is that extent to which the punishment of the offender ought to be increased in its harshness. Furthermore, assuming that by “proximity” in rule eight Bentham means something like closeness of “fit” to the wrongdoing itself or even to the harm caused by the wrongdoing, the harshness of the punishment is to be increased to the extent that the kind of punishment inflicted on the offender is dissimilar to the wrongdoing committed. If these interpretations of Bentham’s seventh and eighth rules are reasonably accurate, it is uncertain that a retributivist ought to concur with them. For recall that the retributivist supports neither the over punishment nor the under punishment of wrongdoers in light of their respective degrees of responsibility for their wrongdoings and the harms they cause. Where factors of responsibility or “matchings” of punishments to crimes is unclear, there is insufficient reason to increase the magnitude of the punishment. For such a policy seems to constitute a deterrent for wrongdoing, which is never a primary reason for punishment for the kind of retributivism I am considering. Thus it is not obvious that a retributivist ought to accept rules seven and eight of Bentham’s rules for proportional punishment. Bentham’s ninth rule of proportional punishment reads as follows: “Where the act is conclusively indicative of a habit, such an increase must be given to the punishment as may enable it to outweigh the profit not only of the individual offence, but of such other like offences as are likely to have been committed with impunity by the same offender.”29 Bentham’s use of “are likely to have been committed” wreaks of the state’s punishing a criminal not only for what she has been found to have done, but also for what the state thinks she has done (given, say, some habitual activity in which the criminal has engaged). Perhaps the murderous spree of the criminal was induced by an addiction to this or that substance. But even if the state can prove that only 10 murders were committed by the perpetrator, instead of the 20 that he is rumoured to have committed, then Bentham’s rule here seems to permit the state to inflict 27

Bentham, An Introduction to the Principles of Morals and Legislation, p. 184. Bentham, An Introduction to the Principles of Morals and Legislation, p. 184. 29 Bentham, An Introduction to the Principles of Morals and Legislation, p. 184. 28

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punishment on the said criminal in light of the likelihood that the criminal committed some other crimes of the same nature. But this seems tantamount to punishing the criminal for what the state cannot prove she has done, which would be a grave injustice to her. No criminal justice system ought to punish anyone for anything unless the evidence is clear that she committed a wrongdoing, no matter how “likely” it is that she did something other than what can be proven beyond reasonable doubt. We must reject Bentham’s ninth rule in light of this point of justice for criminals. Bentham’s tenth and eleventh rules of proportional punishment are wedded together in the following words: When a punishment, which in point of quality is particularly well calculated to answer its intention, cannot exist in less than a certain quantity, it may sometimes be of use, for the sake of employing it, to stretch a little beyond that quantity which, on other accounts, would be strictly necessary. In particular, this may sometimes be the case, when the punishment proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson.30 Although these rules are themselves rather vague, I will attempt to provide meaning to them. I take it that what Bentham has in mind here is that there may be instances where it is appropriate to teach a criminal a lesson or make an example out of her such that, say, the length of the prison term given the criminal is more than what is usually given for similar offences. As long as this is done within a range of sentencing guidelines that are appropriate, this seems to be no problem. For at times judges need to have leeway to make examples out of some criminals. However, this ought not to mean, I claim, that judges ought to have more than a certain amount of discretion in sentencing along these lines. For then the judiciary would become even more politicized than it already is. If judges were to be given too much discretion in sentencing, then punishment for moral education would supplant desert as the primary justification for punishment, which would be unacceptable to the retributivist. Thus Bentham’s tenth and eleventh rules for proportional punishment must be clarified. This takes us, finally, to Bentham’s twelfth and thirteenth rules for proportional punishment which relate to attending to circumstances that would render punishment “unprofitable” and the overlooking of minor matters of proportionality in punishment: 30

Bentham, An Introduction to the Principles of Morals and Legislation, p. 184.

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In adjusting the quantum of punishment, the circumstances, by which all punishment many be rendered unprofitable, ought to be attended to. . . . Among provisions designed to perfect the proportion between punishments and offences, if any occur, which, by their own particular good effects, would not make up for the harm they would do by adding to the intricacy of the Code, they should be omitted.31 Rule twelve seems acceptable to the retributivist, unless it means that a criminal should not be punished unless punishing that criminal maximizes social utility. For a criminal ought to be punished, on the retributivist view, to the extent that she deserves to be punished in proportion to the wrongful harm done to others. But concerning minor offences, the state might not see it worthwhile to punish. This much the retributivist can and should accept as plausible, for the sake of overall efficiency, without giving up the major point about punishing important offences because the criminals deserve punishment. There is nothing wrong with a realistic retributivist having practical concerns about efficiency at the low end of the punishment scale, as long as most important crimes are being prosecuted. A similar point might be made regarding Bentham’s final rule. There is little sense of a retributivist’s devoting too much energy to prosecuting minor offences as long as so many major ones require attention. So minor problems of proportionality in punishment ought not to be a concern as long as the proportional punishment system is generally in good order. This Benthamite principle appears to serve as a basis of support for my claim that not punishing all crimes (such as some minor ones) suggests that the state does not have a perfect duty of punishment. So it seems that, though some of Bentham’s principles of proportional punishment are acceptable to a retributivist, others are problematic for a host of different reasons. It is, moreover, interesting that even Rawls’ famous articulation of rule utilitarianism, while it incorporates from retributivism “only the guilty should be punished” and certain other rules into a utilitarian framework in order to provide a justification of the institution of punishment, fails to incorporate proportional punishment into a rule utilitarian framework. Perhaps this is because, as we saw, Rawls mistakenly construes, as Bentham does not, that utilitarianism and retributivism each answer different questions about the justification of punishment. As important as a viable set of principles of proportional punishment is to a plausible theory of punishment, what sorts of rules would be most viable for a retributivism of the sort defended herein? Let us examine, then, a number of

31

Bentham, An Introduction to the Principles of Morals and Legislation, p. 185.

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other principles of proportional punishment in order to work toward a plausible solution to the problem of proportional punishment. RETRIBUTIVIST PRINCIPLES OF PROPORTIONAL PUNISHMENT In defence of a particular kind of retributivism, I have argued that any plausible positive theory of punishment must come to terms with the problem of proportional punishment. But that the problem of proportional punishment is not unique to retributivism, while importantly true, is not an adequate retributivist answer to the problem itself. So it is incumbent on the retributivist to provide some plausible retributivist principles of proportional punishment, ones that can be useful to lawmakers in implementing punishments in a just and fair manner through the criminal justice system. Since my version of retributivism, like Kant’s, is impure, it is not necessary (or even desirable) that each and every principle of proportional punishment that I defend be antiutilitarian or non-consequentialist in content. However, in order for my theory to be rightly referred to as being retributivist, a substantial amount of the content of such principles, taken collectively, ought to be recognizably retributivist. That is, they ought to be consistent with duly recognized or paradigmatic instances of retributivism. One proposed principle of proportional punishment, it might be argued, is that Punishment must never be so great that it is inhumane. I derive this principle from Feinberg’s claim, in the context of rights theory, that one has an absolute right to not be tortured.32 I shall refer to this as the “Inhumaneness Principle of Proportional Punishment.” This is a point held in common by, among others, many members of Amnesty International, the human rights organization that has recently declared morally problematic the U.S. because the U.S. employs capital punishment.33 Recent U.S. legal history of capital punishment recounts that in 1972, U.S. Supreme Court Justice Brennan argued in Furman v. Georgia that one of the reasons why capital punishment was unconstitutional was that it violated, in his view, the Eighth Amendment’s ban on “cruel and unusual punishment.” But in 1976, in Gregg v. Georgia, the Supreme Court decided that capital punishment was justified so long as certain safeguards were in place to ensure proportional punishment and 32

Joel Feinberg, Social Philosophy (Englewood Cliffs: Prentice-Hall, 1970), p. 88. For a variety of discussions of torture, see Sanford Levinson, Editor, Torture (Oxford: Oxford University Press, 2004). 33 That is, U.S. federal law makes room for capital punishment for certain crimes, and some states have capital punishment on their books.

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non-discriminatory punishment (See Chapter 6 for a discussion of the moral status of capital punishment). Despite the initial prima facie appeal of the Inhumaneness Principle of Proportional Punishment, it suffers from significant vagueness regarding what counts as being “inhumane.” Not only do moral intuitions differ greatly along these lines, but it is unclear that there are no instances where what perhaps everyone would refer to as “inhumane” punishment would be morally unjustified, all things considered. First, the vagueness of “inhumane” in punishment contexts becomes apparent in cases where we recognize, as we should, that inhumaneness is relative to a punishment circumstance. A sentence of twenty years of imprisonment for a minor traffic violation would be considered inhumane (and hence unjust) by reasonable persons. But the same punishment of twenty years imprisonment for, say, the crime of rape, torture and murder (a cluster of crimes for one event, let us say) might be considered the very least that ought to be administered to the criminal (assuming, say, that there are no mitigating factors). In fact, some might argue that twenty years of incarceration as a sentence for the criminal in such a case is “inhumane” to the victim, but certainly not to the criminal. This implies that there are different senses in which a punishment might be deemed as being “inhumane,” namely, in a victimrelated sense or in an offender-related sense. Retributivist-based proportional punishment ought to respect both senses. Second, besides the problem of vagueness with the Inhumaneness Principle of Proportional Punishment is the fact that it is not obvious that the principle admits of no counter-examples. Is it true that a punishment must never be so great that it is inhumane, even assuming that, for the sake of argument, we concur rightly on what amounts to inhumaneness concerning punishments? Or, in rights terminology, does everyone (even the harshest of criminals), by virtue of their being human, possess an absolute moral right, say, to not be tortured? The answer to this question seems to rely on moral intuition and its persuasive power. It is at this juncture that I set forth a principle of proportional punishment. It is a modification of lex talionis: As far as humanly possible, criminals ought to be punished in ways which match the extent of the amounts of harms that they illicitly wrought on others. I shall refer to this as the “Matching Principle of Proportional Punishment.” This principle makes intuitive sense, unless one is arbitrary in deciding how criminals ought to be treated. Basically, the principle avers that no matter what a criminal has done to others insofar as harm is concerned, she is to be treated

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in a way that matches the level or amount of harm that she illicitly inflicted on her victim(s). This is an attempt to satisfy Feinberg's concern about “exact” retributivism, though this principle understands and accepts the inexactitude in sentencing. Of course, the possibility of proportional punishment will be contingent on the overall resources available for the operation of the penal system. My claim is that this principle is at least as reasonable to accept as its denial and that I am justified in accepting it, epistemically speaking.34 Considerations that might vitiate this mode of punishment would include cases of extortion, embezzlement, and the like where treating criminals in tit for tat ” ways seem impossible, if not ludicrous. Thus other means of hard treatment are in order, and it takes a creative system of criminal punishment to match punishments to crimes in such instances. To not treat criminals according to this principle would violate justice. And it will require a special sort of consideration to sway intuitions away from this principle. The fact that some folk are arbitrary in the way they want to punish criminals will simply not suffice as a philosophical justification for not imposing proportional punishments on criminal offenders in light of the full range of facts of their respective cases. Susan Smith, for instance, deserves death by at least something akin to drowning, because she intentionally, voluntarily, and knowingly drowned her two children. However, the state might opt for a less painful or dramatic method of capital punishment, but hopefully not because the criminal in question is a female. For the state to shirk from this responsibility is for it to minimize its commitment to taking criminal justice seriously. If a state is serious about civilization, then it must become serious about criminal justice, among other things. If it is serious about criminal justice, then it must become serious about punishment, among other things. And if it is serious about punishment, then it must become serious about proportional punishment, among other things. But if it is serious about proportional punishment, then it must not pick and choose according to certain prevalent dogmatic ideologies (leftist, moderate, or rightist) what it will punish proportionately and what it will not. Fairness and justice demand that it punish proportionately and consistently, not simply according to how some want to punish. If the state is serious about proportional punishment, then the death penalty, for instance, ought to be enacted on only those deserving of it. Instead of William Blackstone’s adage, “It is better that ten guilty persons escape than one innocent suffer,”35 perhaps we ought to adopt the more responsible and ”

34

For a philosophical analysis of the notions of acceptance and reasonableness, see Keith Lehrer, Theory of Knowledge, Second Edition (Boulder: Westview Press, 2000). 35 The Oxford Dictionary of Quotations, Second Edition (Oxford: Oxford University Press, 1955), p. 73.

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morally challenging standpoint that “It is better that no significant crime shall go unpunished (proportionately) and no innocent person’s punishment shall go unpunished or uncompensated than for even one guilty person to escape the clutches of justice for her significant harm to others.” To be sure, this adage is, in its cumbersome verbosity, poetically unimpressive. However, perhaps it is time for criminal justice systems such as those in the U.S. to cease operating in accordance with some simplistic and rather unjust motto based on the underachievement of some legal professionals and instead adopt with full enthusiasm a less stylistic moral principle which takes justice far more seriously than does Blackstone’s troubling claim. Beyond these matters, however, there lie other problems with the seemingly absolute prohibition of the use of proportional punishment when it comes to certain kinds of wrongdoings. Consider the following scenario. A duly convicted criminal confesses, not out of coercive pressure or delusion or the like, but out of pure pride in his torturing to death and raping several children. This criminal, let us say, does not qualify as being mentally incompetent, and it is presumptuous to think that anyone who would do such a thing necessarily qualifies for the insanity defence. It is clearly within the bounds of moral intuition to imagine a case where these sorts of actions are done while the criminal satisfies to a significant degree each of the conditions of criminal liability. In such a case, would not proportionality in punishment require, or at least permit, among other things and all things considered, that torture is due the criminal? Although even Kant would argue, as we found in a previous chapter, that the state ought not to inflict punishments that would vilify itself, proportionality seems to require, or at least permit, the torture of the criminal in similar kind and length of duration that the criminal inflicted on her victims. Specific examples of those who would, on a common sense construal of proportionality, deserve torture include such historical figures as Adolph Hitler (primarily responsible for the Nazi holocaust of Jews and others deemed “undesirable” by the Nazis during the World War II era), Andrew Jackson (primarily responsible for part of the genocide of Native Americans during the westward expansion of the U.S., though that genocide lasted for generations), and no doubt hundreds of others who have engaged in evils36 that would justify torture as punishment for their crimes against humanity. It would not justify morally the torture of those merely accused or suspected by the U.S. government of being terrorists, however. Nor would it justify the torture of

36

For an interesting account of the nature of evil in criminal justice contexts, see Joel Feinberg, Problems at the Roots of Law (Oxford: Oxford University Press, 2003), Chapter 6. For a critique of Feinberg’s account of evil, see J. Angelo Corlett, “Evil,” Analysis, 64 (2004), pp. 81-4.

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someone simply because she might or does possess information that would lead to the capture of an infamous enemy of the state. In response to this intuitive defence of torture as one means of punishment in some severe cases of crime, it might be argued that some such punishments not only vilify the punishing state and society, but do so because such punishments violate the absolute sacredness of human life. No human being, it might be argued, should be treated in such a way, and in light of this “two wrongs do not make a right.” Torture, then, is ruled out absolutely as a legitimate means of punishment. After all, we are reminded from a claim set forth earlier in this chapter: “punishment must never be so great that it is inhumane.” But this is surely a doctrine that cries out for a supportive argument. The examples just provided serve as putative counter-examples to the claim that neither torture nor death is ever morally justified. And the reply seems to trivialize the problem at hand by giving as a response to the proposed counterexamples an equivocal remark that simply begs the question against the criticism by assuming that the state’s proportional punishment of the criminal is a wrong on par with the criminal’s wrongdoing. In sum, then, it seems at least just as plausible to think that some cases of punishments by torture or death are morally justified as it is to assume that the doctrine of the sacredness of human life is an absolute moral truth. However, as long as proportionality is required in punishment contexts, it seems justified to think that proportionality permits at least the attempt of the state to impose on qualifying criminals those punishments that most closely resemble the kinds of harms the criminals have inflicted unjustifiably on others. I shall refer to this as the “Punishment-in-Kind Principle of Proportionality.” To decide a priori that this rules out punishment by torture or death is to make the sacredness of human life an absolute moral doctrine, without questioning, for instance, why not even the most evil of humans is not punished proportionately for harms she has committed against others. Moreover, it is to run afoul of laws such as California Penal Code, Section 128, regarding the procurement of the execution of innocents: “Every person who, by willful perjury, procures, the conviction and execution of any innocent person, is punishable by death.” The burden of argument here seems to lie with those who would dogmatically assert that neither torture nor death can ever be morally justified as an act of punishment, at least in the most severe cases of criminal wrongdoing. For this insistence would seem to place an ad hoc restriction on the extent to which the criminal justice system takes seriously the notions of desert and proportional punishment.

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Thus it appears that the Inhumaneness Principle of Proportional Punishment is problematic for the reasons stated, and cannot be included in a list of plausible principles of proportional punishment. There are, common sense intuition informs us, certain select instances where criminals deserve to be tortured or killed, namely, when conditions of responsibility and proportionality dictate that punishment by torture or death is a proper response of the state to criminals who have tortured others and where mitigating circumstances do not obtain. In case the reader is unaware of precisely such a case, I point to the David Westerfield murder of Danielle Van Damm in San Diego, California, in 2002. Westerfield, an upper middle-class professional kidnapped Van Damm, from her bedroom, raped and brutally killed this young girl, eventually depositing her body and leaving it in a sexually provocative position on the outskirts of San Diego. Westerfield had the financial wherewithal to procure the services of the very finest defence attorney in San Diego, and there was not even a hint during the trial that there were mitigating circumstances in this case. The evidence is clear that Westerfield is a paradigmatic instance of one who has earned the death penalty. To refuse to put him to death after ample opportunity for an appeal (his attorney has to date made no effort to appeal) would be a blatant refusal to take justice seriously. A further argument might be made here, one that I am unsure that I endorse because it both requires further argumentative support and because I deem it controversial. It is that punishments by torture or death might be morally justified, not only in cases where criminals have tortured humans, but also in cases where nonhumans have been tortured, or even in cases where there is, say, severe environmental damage that shocks the moral senses of humankind. Here it might be argued that the same proportionality argument that grounded the torture or deaths of criminals who have tortured or killed other humans serves to ground the punishment by torture of, say, those who torture nonhumans, or who commit severe and morally shocking acts of destruction to the environment. Why should the argument for punishments by torture or death be limited arbitrarily, it might be argued, by the consideration that in some cases the victims of criminal torture are humans, while in other cases they are not? While I am sympathetic to this line of reasoning because it is not speciesist (especially concerning the cases of criminal torturing of nonhuman animals), I am unsure precisely how the state would distinguish between those environmental harms that deserve punishment by torture and those that do not. Would it be the amount of environmental damage37 inflicted? Or the quality? Or the 37

For a discussion of the problem of responsibility for environmental damage, see J. Angelo Corlett, “Corporate Responsibility for Environmental Damage,” Environmental Ethics, 18 (1995), pp. 195-207.

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sentimental value of it? Unless adequate answers are provided to these and related questions, I reserve judgment as to whether I support punishment by torture of criminal acts of even massive environmental destruction. For punishment by torture is simply not an obvious proportional punishment (in kind) for even severe environmental damage. Perhaps there are other methods of proportional punishment open to the criminal justice system than that of torture in such instances. This raises a further concern of whether or not retributivism is contingent on the plausibility of the doctrine of lex talionis, a doctrine that holds that the punishment of an offender must be “in kind.” Hence the old adage, “an eye for an eye, a tooth for a tooth.” Unlike some philosophers, I do not believe that the retributivist is committed to this view, so long as proportionality of punishment can be reasonably achieved by some means or another, given all of the available factors of a case. But even if retributivism did depend on the plausibility of lex talionis, more proportionality in kinds of punishment might be possible than we once thought. As noted in Chapter 3, Kant argues that the state ought not to rape a rapist in that such a punishment would vilify the state, and violate the humanity version of the categorical imperative. But presumably his point is that it is morally wrong for a person, even on behalf of the state, to violate the rapist in the way that he (qua rapist) violated his victim. Admittedly, for a citizen to have the task of raping a rapist runs counter to our moral sensibilities, even for those of us who accept the argument that torture is sometimes a proper response of the state to those who are guilty of torturing others (most likely, until the above line of argument was articulated most readers were of the opinion that punishment by torture was morally wrong). But our moral intuitions might be swayed on this point, especially if it is the case that current and future technologies exist which can imitate rather closely various kinds of rapes and their horrors and physical pains, etc. For example, what if there existed a reliable computerized machine, call it the “punishment machine,” that can be programmed to reproduce, however inexactly, the kinds of experiences that a rape victim had when raped? The machine could be variously programmed to inflict on each rapist the amount and intensity of certain pains and such, complete with attachable gadgets of various imaginable shapes and sizes in order to perform on the perpetrator what she inflicted on her victim. Obviously, there are limitations to what can be done to a male rapist who rapes a female. But a little imagination would begin to reveal new ways of inflicting forms of computerized, machine-inflicted rape on those who deserve it. Thus to a significant extent, both the kind and intensity of punishment can be administered to the criminal by way of this punishment machine. Hence even rape can for the most part be emulated in punishment without vilifying the state. It would be akin to an execution by means of the electric chair. No single

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person is asked to kill the offender directly, but simply to “flip the switch.” To suggest that even this indirect form of punishment vilifies the state is to wrongly assume what needs to be supported by rational argument, namely, that such punishments are unjustified. However, in light of the plausibility of proportional punishment, it is difficult to understand how such an argument might proceed. Would it not imply in turn that nearly all punishments are unjustified? Not every type of crime can be handled proportionately by this sort of machine. However, that not every kind of crime can be punished appropriately by the punishment machine in no way rules it out as a viable substitute for punishing rapists and certain kinds of offenders, at least in some cases. So even if lex talionis were an essential feature of retributivism, it need not pose the worry that it seems to pose on the surface. For there are various and sundry ways to punish those deserving of hard treatment, and technology provides some interesting and creative means by which to begin to do so. History is replete with many ways in which punishment might be inflicted on criminals. The punishment machine is but a contemporary version of some of the punishment devices of the past. But a concern might arise about both the Matching Principle of Proportional Punishment and the Punishment-in-Kind Principle of Proportionality. What about cases in which such punishment is not possible, or even desirable? How is punishment to be achieved in cases where, say, proportionality is not able to be inflicted either “naturally” (i.e., straightforwardly, where, for instance, a life is taken for a life taken) or by way of the punishment machine discussed earlier? Does this not pose a difficulty for even inexact or rough retributivism? Is it not simply the kind of punishment inflicted that is questioned in terms of proportionality, but the extent to which it is inflicted? In reply to this objection, it is helpful to recall that the problem of proportional punishment stands, even in this more precise form, as a challenge to all plausible (positive) theories of punishment, not simply retributivism. Nonetheless, it is necessary that the most plausible theory of punishment provide a good answer to this problem. Perhaps the following Harm-Based Principle of Proportional Punishment is also helpful:38 Punishment is justifiably inflicted on an offender only if it “weighs” the same for the offender on a scale of suffering as the offence “weighs” (or would “weigh” on such a scale if the victim is incompetent or dead) to the victim on a scale of suffering, where the victim’s weighing of her own suffering (for 38

See also Honderich, Punishment, pp. 30f. for another discussion of this problem.

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purposes of determining whether or not or how to punish the offender) is not influenced by revenge toward the offender. This principle assumes a scale of suffering, say, from 0 to 10, where 10 is the greatest justifiable suffering a human can experience by way of institutionalized punishment (perhaps capital punishment, assuming, for our purposes, that it is morally justified). It also assumes that punishment is never justified if the conditions of moral responsibility are not satisfied by the offender. That is, an offender must have been at fault in committing the wrongful deed voluntarily, intentionally, and knowingly to requisite degrees. This Harm-Based Principle of Proportional Punishment seeks to match the victim’s perception of the weightiness of the suffering experienced as a result of the offence. For instance, if the offender raped the victim, and (if the victim was a psychologically normal and reasonable person) and if the victim rated her suffering of the offence at say, a 9, then the suffering inflicted on the offender by the state should weigh a 9 for the offender (that is, from the offender’s standpoint) and the punishment chosen by the state to inflict on the offender should ensure this sort of suffering for the offender.39 But what if some poor wretch murders someone and truly wants to receive capital punishment? Kant would argue that the offender must be put to death, not because the offender wants capital punishment as her sentence, but in that she deserves it. Plato’s Laws40 sees the importance of utilizing capital punishment in certain cases, but it also notes that death is not the “last deterrent” or most horrible fate for the criminal.41 Does proportional punishment demand that this criminal be given the death penalty? Or, should this offender be given a punishment the suffering of which is not to her liking? This presents a problem for any subjectivist (or significantly subjectivist) account of sentencing. Given that punishment is the state’s intentional infliction of pain and suffering on a criminal offender, it might be argued that a criminal cannot be punished in a way that she wants to be “punished” because punishment must be contrary to the offender’s desires (I assume the sincerity and accuracy of the offender’s desires here). Thus it makes little or no sense to sentence the wretched murderer to death. Another means of punishment must be sought, perhaps by way of the subjectivization of sentencing (according to the offender’s own perception of how she would suffer under such circumstances). 39

Contrast this set of principles of proportional punishment with the account of proportional punishment found in Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 59f. 40 Plato, Laws, Trevor J. Saunders, Translator, in John M. Cooper and D. S. Hutchinson, Editors, The Collected Dialogues of Plato (Indianapolis: Hackett Publishing Company), Book 9, 863. 41 Plato, Laws, Book 9, 881.

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However, against this line of reasoning it might be argued that even though the wretched murderer may prefer death to other forms of punishment, she may nonetheless experience suffering as a result of her having the death penalty inflicted on her. One must not confuse an offender’s desire to be put to death with that offender’s ability or capacity to experience suffering as the result of capital punishment. This suggests that, when determinations of an offender’s perception of suffering from particular punishments is concerned, it is not simply an offender’s desire to receive a particular sort of punishment which goes to determine such a perception. It also involves how much an offender stands to lose if she is given a certain kind of punishment instead of another. By “lose” I mean what she stands to lose economically, personally, etc. How much a wrongdoer stands to lose may be determined both subjectively (according to the extent to which the offender believes she stands to lose) and objectively (according to the extent to which a reasonable person believes the offender stands to lose). Often the subjective standard is useful in determining how most effectively to punish a wrongdoer with respect to the wickedness of her act and the extent to which she illicitly harmed the victim(s). But what if the victim is not psychologically normal or rational (yet not insane or otherwise beyond the pale of legitimate punishment)? How, then, is her perception of suffering to be determined or figured into the punishment calculus? In such cases, her perception of suffering would be determined by an objective (reasonable person) standard by asking how a reasonable person would weigh such experiences of hard treatment. What if the victim is incapable of weighing her suffering due to the fact that she is the victim of murder, manslaughter, or the like? Again, an objective standard might be used to determine the sentence of the offender. This reasonable person standard appears to be the only general guide for judges and jurors in such cases. What should happen in cases where the offender, at the time of the offence, is legally incompetent? How is her amount of suffering to be determined? And what if the offender is incompetent at the time when her suffering is to be determined? In the former case, it is unclear that the offender ought to be punished at all. Perhaps therapy is needed and justified instead.42 In the latter case, problems of personal identity might prohibit the identification of the self that is responsible for the crime and the self which is later found to be incompetent. If such difficulties of personal identity and responsibility arise, then it is unclear that the offender ought to be punished. But barring such difficulties in assessing the responsibility of the agent in question, an objective 42

Karl Menninger, The Crime of Punishment (New York: The Viking Press, 1968). Some difficulties with a therapeutic model of “punishment” are noted in Jeffrie G. Murphy, “Marxism and Retribution,” in Simmons, Cohen, Cohen and Beitz, Editors, Punishment, p. 29; Jeffrie G. Murphy, Editor, Punishment and Rehabilitation (Belmont: Wadsworth Publishing Company, 1973).

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standard may be used to figure out what the offender would consider to be the right punishment for the level of suffering that is to be inflicted on the wrongdoer. In either case, it is believed that in questions of responsibility and punishment, the most challenging questions are those that concern the extent to which an offender is genuinely responsible for a crime, all things considered. As complex as human actions are, determinations of human intentionality, knowledge and voluntariness are extremely difficult to answer. But there is a more serious concern with this Harm-Based Principle of Proportional Punishment. Suppose that the victim of an arson weighed her suffering at 9, where corresponding to 9 on the victim’s scale of suffering is capital punishment for the offender in that the offender believes her receiving a sentence of death is preferable to a prison sentence of any length. Suppose further that the offender sincerely believes that the risk of such a punishment is well worth her committing the offence of arson, and the offender has “shallow pockets.” It might be argued that this example shows that there is something wrong with the way in which this harm-based principle of punishment is stated in that capital punishment seems much too harsh a punishment for arson not resulting in death. However, there are at least two replies to this concern. One is that the offender might be viewed as being incompetent such that her perceptions of suffering are not to be taken as decisive in determining what would count as a 9-rated punishment in this case, given the offender’s system of beliefs, desires, preferences, etc. Thus the objective standard would be used to decide what sort of punishment would best correspond to the victim’s suffering as a result of the offence.43 Another response to this concern, assuming the offender is competent, is to insist that her preference for what most would consider is an overly lenient punishment for the crime nevertheless justifies the state in inflicting the offender’s own preferred (9-rated) punishment of being fined on the offender. Thus if the offender is not competent to the extent that her preferences in regards to suffering cannot be taken as decisive, then an objective standard may be used to determine how to punish her proportionately. If, on the other hand, the offender is assumed to be competent in her preferences about suffering, then it makes sense for the state to punish her in light of those preferences. The best of empirical psychology, of course, must assist the court in deciding the question of offenders’ competence. Thus a restriction must be placed on the above Harm-Based Principle of Proportional Punishment:

43

Note that the offender is competent at the time of the offense, and that it is only her own perception of suffering afterward that is tenuous.

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An offender’s suffering from a form of punishment or compensation must both adequately compensate the victim [or the victim’s surviving significant other(s)] as much as possible, and such punishment must negate the economic, social, etc., advantage(s) the offender gains by committing the offence as much as possible.44 This “Restrictive Principle,” which is inspired by Bentham’s first rule of proportional punishment, guards against an offender’s being inadequately punished for her crime. For it says that the punishment or compensation must be deserved in light of the harm done to its victim.45 Also, it says that whatever the offender gained by way of committing the offence must be negated by way of the punishment or compensation inflicted on the offender. For instance, money stolen must be confiscated by the state and returned to its rightful owner(s). An assumption here is that it is unjust for a wrongdoer to profit from her wrongdoing. Ill-gotten gains are illegitimate and intolerable for the retributivist. Yet another concern might be raised about the Harm-Based Principle of Proportional Punishment. It might be argued that it is unrealistic to think that victims of offences are able to estimate fairly their degree or level of suffering from offences, and that such estimates will typically be inflated due to the victim's feeling of vengeance. Certainly human cognition is such that this objection points to a significant empirical difficulty with one’s thinking that humans can, when victimized, fairly and accurately determine their feelings of suffering. How many victims of, say, auto theft will rate their suffering or loss lower than 7 or 8, for instance? Will not the tendency be for victims to rate the suffering or loss even higher than this? And will not this tendency be due, at least in part, to the victim’s retributive emotions46 or attitudes (resentment, hatred, etc.) toward the offender? If so, does not this pose a problem for the Harm-Based Principle of Proportional Punishment? Perhaps a subjective standard of assessing suffering is not, for this reason, appropriate concerning the determination of the victim’s level or degree of 44

The idea here is to link the degree of wrongness of an act, omission or attempt with the extent to which a wrongdoer benefits from it, as argued similarly in G. Sher, Desert (Princeton: Princeton University Press, 1987), p. 82. 45 For a contrary analysis of desert, see Michael Davis, To Make the Punishment Fit the Crime (Boulder: Westview Press, 1992). 46 Peter F. Strawson, “Freedom and Resentment,” in John Martin Fischer and Mark Ravizza, Editors, Perspectives on Moral Responsibility (Ithaca: Cornell University Press, 1993), pp. 45-66; Gary Watson, “Responsibility and the Limits of Evil: Variations on a Strawsonian Theme,” in Fischer and Ravizza, pp. 119-50; Michael McKenna, “The Limits of Evil and the Role of Moral Address: A Defense of Strawsonian Compatibilism,” The Journal of Ethics, 2 (1998), pp. 123-42.

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suffering as the result of an offence. If not, then an objective standard of reasonableness may be used in such cases. But this does not rule out the use of the subjective standard in cases where the offender is a sufficiently competent person whose own suffering preferences need to be determined for the purposes of fair and proportional punishment for her offence. The upshot of this view of proportional punishment is that, whenever it does not pose a problem of the sorts mentioned above, subjective determinations of suffering are relevant and useful to the proportional meting out of punishment to offenders who deserve it. Thus it is possible to begin to devise retributivist principles of proportional punishment. Although this is not a complete list of such principles, it provides us reason to think that (contrary to Feinberg, Braithwaite and Pettit, respectively) it is possible in principle to proportionally mete out punishment, according to objective (and sometimes subjective) standards. Even if certain of these principles fail, this does nothing to show that retributivism is any less plausible (comparatively speaking, to other theories of punishment) than it would otherwise be without these principles. Again, the problem of proportional punishment is faced by any competing and plausible view of punishment. However, it might be argued that, even if a coherent set of principles of proportional punishment can be devised, the very possibility of there being competing lists of punishments-to-crimes stands in the way of our knowing which set is justified.47 Suppose there is a coherent set of principles of proportional punishment which sets as the least severe punishment thirty years in solitary confinement and sets as its most severe punishment torture to death (where the crimes range from petty theft to murder). Call this the “Barbaric Code.” Suppose also that there is an equally coherent set of such principles that sets as its least severe punishment probation or parole, and sets its highest end of punishment at life imprisonment (where the crimes range from petty theft to murder). Call this the “Humanitarian Code.” The Barbaric Code and the Humanitarian Code are both coherent, internally speaking, and proportional in their respective lists of offences each of which stands in proper relation to the corresponding punishments. Which set of principles is justified, the Barbaric Code or the Humanitarian Code? Furthermore, of what use is it to speak of proportional punishment unless this preliminary question can be resolved? As important as this question is, it is crucial to see that it is not a problem unique to retributivism. To the extent that the general problem of proportional punishment is a difficulty for any view of punishment, this question is faced by every punishment theory save punishment scepticism. Nonetheless, it is important to attempt to clear the way for the possibility of proportional punishment by tackling this issue head-on. 47

I owe this point to Joel Feinberg.

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This concern points out that the mere coherence of a set of beliefs about or practices of punishment is at best a necessary condition for a justified set of principles of proportional punishment. Being able to construct a table of corresponding crimes and punishments based on principles of proportionality is not sufficient for a justified set of such principles. What is also needed, in terms of justification, is that the principles that underlie such tables of crimes and punishments themselves are supported by a coherent set of moral, social, or political principles and intuitions. In other words, the justified table of crimes and punishments is one that is supported by a coherent set of principles of proportional punishment, which in turn is supported by a coherent and intuitively plausible set of moral, social, or political principles that serve as the keystone beliefs about punishment.48 Thus there is an answer to the question of how a table of crimes and punishments is justified, ultimately. It is justified if in the end it is supported by a coherent moral, social, or political philosophy. However, there are other such principles that might prove even more helpful than the Matching Principle of Proportional Punishment, the Harm-Based Principle of Proportional Punishment, the Punishment-in-Kind Principle of Proportionality, and the Restrictive Principle. Let us consider them in turn. There is the principle that An offender’s criminal history should not be seen as relevant to her sentencing. I shall refer to this as the “Historical Principle of Proportional Punishment.” This principle is intended to be a response to the U.S. Sentencing Commission, first organized by the U.S. Congress in the 1980s in order to, among other things, provide more exacting and fairer punishments for criminals as a response to unfairness of sentencing throughout the federal judiciary.49 Although it is obviously a good thing to minimize, if not eliminate, arbitrariness in judicial sentencing at all levels of criminal justice, it is unclear whether an offender’s past crimes can justifiably be taken into consideration, given that the criminal presumably has already paid for the crime by way of, say, adequate or proper time served.

48

For a detailed account of coherentist justification, see Lehrer, Theory of Knowledge, Chapters 5-6. 49 United States Sentencing Commission, Federal Sentencing Guidelines Manual (St. Paul: West Publishing Company, 1998). For a critical discussion of the guidelines (prior to 1999), see Kate Stith and Jose Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts (Chicago: University of Chicago Press, 1998). For a discussion of Stith and Cabranes, see David Dolinko, “Justice in the Age of Sentencing Guidelines,” Ethics, 110 (2000), pp. 563-85.

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Perhaps a criminal’s history is relevant to a utilitarian calculation of how to deter future crimes as it might seek to best satisfy the utilitarian doctrine of taking seriously only the future consequences of, say, criminal behavior. From a retributivist point of view, however, criminal history has but a dubious place in criminal sentencing, and for the following reason. It would seem to assume that a criminal’s previous sentence for a crime was incorrect (insufficient) or undeserved. Yet according to a retributivist, a criminal should be sentenced as closely as possible according to what she deserves. Although a retributivist typically takes into account, as a backward-looking theorist of punishment, a criminal’s past wrongdoing, it does not follow from this that a criminal’s past wrongs for which she has done proper time are legitimate factors for judicial decision making in determining current sentencing for that criminal, regardless of the crimes committed. That a criminal deserves to be punished according to her harm caused to others given the facts of the case should not be influenced by the fact that she has a criminal past. Why? Because what a criminal does under certain circumstances, if it is punishable at all, is punishable on the retributivist view regardless of anything except the essential facts of the case, minus past criminal history. Crimes should be punished independently of considerations other than what in fact the criminal did, attempted to do, or failed to do in a given context of guilt, fault, voluntariness, knowledge and intention. What a criminal has done in the past for which she has already been adequately or properly punished is irrelevant to the current sentencing of the criminal. Thus the Historical Principle of Proportional Punishment is one principle, among others, which ought to guide our thinking in the punishment of criminals who deserve punishment. But are there other principles that ought to be included in our analysis of what constitutes jointly necessary and sufficient conditions of proportional punishment? If so, what might they be, and why? It seems quite plausible to argue that The type, mode, or amount of punishment inflicted on an offender by the state must never be contingent on the offender’s actual or perceived ethnicity, gender, sexual orientation or lifestyle, religious or political affiliation (or lack thereof), economic class, etc. I shall refer to this as the “Principle of Equality in Proportional Punishment,” and it is inspired by Kant’s principle of proportional punishment stated in Chapter 3. It insists that nothing like the listed characteristics ought to be counted amongst the factors that are legitimate for sentencing of criminal conduct. The U.S. criminal justice system has a lengthy history of racist application of criminal law. Persons of color have often been given

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significantly harsher sentences for crimes similarly committed by their Anglo counterparts. There is also the problem of racist implementation of criminal legal proceedings which are exemplified, sadly enough, by cases such as that of Rueben “Hurricane” Carter, who was falsely accused and convicted of murder and served almost two decades of a life sentence for which he was never compensated, and for which the guilty party to the fraud, known to the public, has never even been charged with corruption. Coupled with a lengthy list of racist cases of criminal convictions and sentencing are cases of gender bias. For example, of the hundreds of women on death row in the U.S., a far lesser percentage of them will ever be put to death compared to the percentage of men on death row in the U.S. This is a clear case of gender bias that works in favor of women in U.S. society, but which in no way can be justified, so long as we consider cases that are relevantly alike in nature and circumstance. The Principle of Equality in Proportional Punishment helps to guard against racism and sexism in the sentencing of criminals so that more accurate proportionality might be attained in punishing wrongful acts. Again, what truly matters in regards to punishment, normatively speaking, is the extent to which the criminal acted, attempted to act, or failed to act voluntarily, knowingly and intentionally in being at fault in committing the crime. Thus we have the beginnings of a retributivist theory of proportional punishment: the Matching Principle of Proportional Punishment, the Punishmentin-Kind Principle of Proportionality, the Restrictive Principle, the Harm-Based Principle of Proportional Punishment; the Historical Principle of Proportional Punishment; and the Principle of Equality in Proportional Punishment. Upon this edifice might be constructed a more complete theory of retributivist proportionality which would, along with a robust analysis of responsibility (the basic structure of which was described in Chapter 1), serve as the full content of the trademark retributivist conception of desert. Perhaps this reasoning has at least made some headway in the direction of answering a concern about retribution raised by John Braithwaite and Philip Pettit: “Having torpedoed such views [lex talionis] from the old retributivist tradition, the new retributivists have left themselves with nothing to say about the form of punishment, at least nothing that is derived from their theory.”50 I have modified lex talionis, and I have provided a thoroughly retributivist notion of desert based in part on a set of principles of proportional punishment which are themselves consistent with retributivism.

50

Braithwaite and Pettit, Not Just Deserts, p. 175.

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THE OBJECTION TO DESERT Much of the focus of philosophical criticisms of retributivism has been on the concept of desert,51 and whether or not it is a primitive (self explanatory and self justifying) notion.52 If it is a primitive notion, then it is criticized for being question-begging in favor of retributivism. Indeed, Honderich writes: “…people say that a man deserves something and intend no more than it is right that he get it. To attempt to argue that a man’s punishment is justified, by saying in this sense that he deserves it, is obviously pointless.”53 And Honderich’s argument is rebutted by Lawrence H. Davis who states that “…if ‘it is right that he get it’ is taken as equivalent to [‘There is some intrinsic value in the suffering of the guilty’], as it seems that it here may be, it is by no means identical with [‘Punishment of the guilty is (sometimes) justified’].”54 Yet even if desert is not a primitive concept, then retributivism is criticized for lacking a rationale for the concept itself. Desert itself is a complex concept. Its contexts vary from distributive justice55 to criminal justice. The latter context, of course, is the one most relevant to my articulation and defence of retributivism. I have already noted the basics of Rawls’ celebrated rejection of the notion of desert in distributive justice contexts. But in either context, desert is either comparative or noncomparative by nature.56

51

Because “it is impossible...to list the necessary and sufficient conditions for personal desert in the abstract, for the bases of desert vary with the mode of deserved treatment,” (Feinberg, Doing and Deserving, p. 61) I delimit my analysis of desert to contexts of corrective justice. 52 There is another sense in which retributivism has been charged with primitivism in its reliance on the notion of desert. It is often said that retributivism insists on punishment in a manner which exhibits an animalistic desire to retaliate toward those who harm us. I believe that my analysis of desert is far too nuanced to fall prey to this ad hominem verbiage. But even if it were true that retributive desert originates from an animalistic desire to retaliate, a similar point can be made about the human desire to act benevolently. Yet the fact that both retributive desert and benevolence might well be in whole or in part primitive in this sense hardly counts as a good argument against their moral justification—at least in some cases. “Until someone provides better reason for picking and choosing among our apparently deeply felt moral convictions, the case for [‘There is some intrinsic value in the suffering of the guilty’] seems as solid as the case for any number of principles enjoying greater popularity at this date” (Lawrence H. Davis, “They Deserve to Suffer,” Analysis, 32 (1971), p. 140). 53 Honderich, Punishment, p. 15. 54 Davis, “They Deserve to Suffer,” p. 136. 55 See Serena Olsaretti, Editor, Desert and Justice (Oxford: Oxford University Press, 2003). 56 Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), Chapter 4.

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As we have seen, according to retributivist accounts of punishment, only the guilty deserve to be punished, and in proportion to the degree of harm the criminal has caused illicitly to the extent that she was a responsible moral agent. I have argued that the concept of desert is to be understood in terms of the concepts of responsibility and proportionality of punishment. This means that the slogan, “Only the guilty deserve to be punished” amounts to the claim, “Only those who are responsible (in a retroactively liability sense) should be punished, and only in proportion to the harm(s) they have wrongfully wrought on others.” This is equivalent to the claim, “Only those criminals who are guilty of harming others intentionally, knowingly, voluntarily, and so forth, should be punished to the degree in which they so act, fail to act or attempt to act in wrongfully harming others.” Having articulated the concept of desert in terms of responsibility and proportionality, it is difficult to see the alleged problem with retributivism and desert. Is it not true that, whatever the conditions of responsibility, for me to deserve to be punished just means that I ought to be punished based on the degree to which I am liable for the harm(s) I illicitly caused to others? Thus desert is not some primitive and merely intuitive notion to which a retributivist appeals in order to stop the discussion about how or why an offender ought to be punished. Rather, desert just is the way in which it is proper to refer to the complex range of factors that would or would not make someone punishable for an outcome. The focus, then, of discussions of retributivism ought not to start and end with the notion of desert without, that is, including discussions of the natures of responsibility and proportionality. Yet whatever is said about the natures of responsibility and proportionality will not defeat, but actually bolster and further articulate, the most plausible versions of retributivism. This line of argument should allay those, like Honderich, who level the charge against retributivism that desert is insufficient for morally justified punishment.57 Additionally, retributivism of the kind defended herein does not commit itself to the position that there are any particular offenders who deserve this or that punishment. This point is made in response to arguments akin to the one made by Honderich, namely, that it is practically speaking impossible to determine a defendant’s status as a voluntary, epistemic or intentional agent and hence likewise problematic if not impossible to determine a defendant’s deservedness of punishment.58 The version of retributivism which I defend states that, given the conditions of responsibility, whomever satisfies those conditions is a candidate for punishment (in serious cases of wrongdoing) to the extent, and only to the extent, that she harms someone wrongly while satisfying those conditions. To the extent that the conditions of responsibility are satisfied 57 58

Honderich, Punishment, p. 36. Honderich, Punishment, p. 37.

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an offender deserves to be punished. It might turn out that an examination of all of the relevant factors in every case of wrongdoing ever committed reveals that no one is ever to be punished because of serious mitigating facts in each case. Retributivism ought not to have a problem with this sort of conclusion. But the likelihood is that even with mitigating circumstances, there are at least some cases wherein criminals ought to be punished, e.g., they deserve to be punished, as criminal court systems around the globe declare every day. Braithwaite and Pettit argue that there is a serious problem with the retributivist conception of desert: …Violation of the rights of others is not sufficient to justify loss of one’s own rights; intentional infliction of suffering on others does not, necessarily, justify the loss of one’s own right not to suffer. To believe otherwise is to accept the reasoning of the lex talionis – because I violate a right by taking an eye, the state can violate my right by taking my eye.59 In reply to this concern, I would argue that on my retributivist conception of desert, the intentional infliction of harm on others does not suffice even for responsibility, much less punishment. Rather, as we saw in Chapter 1, it is an actus reus based on sufficient intentional, epistemic and voluntary action that suffices for the state’s right to punish. So their criticism of the retributivist conception of desert misses the mark if it is directed at my version of retributivist desert. Indeed, Braithwaite and Pettit commit a kind of bifurcation fallacy in wrongly assuming that the only two alternatives available are the two they foist on us. But if I am correct, there is a much more plausible alternative open to retributivists that happens to accord well with responsibility theory. In sum, not only does my version of retributivist proportional punishment require capital punishment for those who qualify for it in that proportional punishment helps to ensure non-arbitrary sentencing, but it construes desert in terms of responsibility. It is difficult to imagine a plausible theory of punishment that denies either of these points. For denying proportional punishment of duly convicted criminals is tantamount to endorsing arbitrariness in sentencing, while denying that deserved punishment is that for which a criminal is responsible amounts to acceptance of the claim that criminals ought not to be held accountable (in the form of punishment) for what they do intentionally, knowingly, voluntarily, and so on. The heart of my version of retributivism, then, seems to be the foundation of any plausible theory of punishment. If this is true, then Honderich’s claim that “the retribution 59

Braithwaite and Pettit, Not Just Deserts, p. 169.

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theory…could barely survive a demonstration of truth of determinism”60 is problematic in that it implies that retributivism alone faces the problem of freedom and determinism, and because it assumes that retributivism must take a position on whether or not any person in particular has, does or will ever satisfy sufficiently the conditions necessary and sufficient for morally justified punishment (e.g., desert: responsibility and proportionality). On my view, desert is not a primitive concept having merely intuitive force. Nor is it a basic belief, self-justifying and according to which all other retributivist concepts are justified. Rather, desert is cashed out in terms of the concepts of both responsibility and proportionality. By “responsibility,” I mean a cluster concept including notions of guilt (by action, omission, or attempted action), fault, intentionality, voluntariness and knowledge in a blameworthy sense such that one is culpable of wrongdoing and liable to punishment. By “proportionality,” I mean that the punishment one is forced to undergo or pay is commensurate with the harm(s) one wrongfully caused to others. In other words, the punishment must “fit” the crime. To say, then, that one strongly deserves to be punished is to say that she is responsible in the robust sense for some harm and that whatever punishment she is forced to endure must align well with the illicit harm(s) for which she is responsible. This retributive notion of desert is not committed to the idea that any particular person is in fact sufficiently responsible such that she deserves to be punished. Indeed, it is not even committed to the position that anyone in fact satisfies the conditions necessary and sufficient for punishment. Rather, it holds that the conditions of responsibility in the liability and blameworthy senses must be satisfied in order for a criminal to be punished in proportion to her wrongful conduct. A criminal who fails to act knowingly, for instance, fails to qualify for punishment on this account. It must be borne in mind that the cluster of responsibility concepts admit of degrees of satisfaction by wrongdoers such that wrongdoers are either (broadly speaking) strongly, moderately, or weakly responsible for their wrongful conduct. To the extent that each condition is satisfied a wrongdoer is to be punished in proportion to her wrongful harm of that party. And mitigation accrues in cases where full responsibility is absent. Admittedly, there are likely to be relatively few cases, at best, that would qualify as ones for which a wrongdoer is fully responsible, meriting unmitigated punishment. Nonetheless, my version of retributivism leaves open the question of whether or not anyone in fact deserves full punishment. This is an empirical question that must be 60

Honderich, Punishment, p. 105. It may be true, as Honderich notes, that utilitarian deterrence theories of punishment are not in the same way caught up in the controversy of human freedom. However, no morally justified theory of punishment can escape the problems inherent in the crucial problems related to freedom and determinism.

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answered on a case by case basis, all things considered. My purpose is to attempt to devise principles that would discover the plausibility of a retributivist analysis of punishment. It is no mark against retributivism even if it turns out that no one deserves punishment (due, perhaps, to genuinely excusing circumstances), or that no one deserves unmitigated punishment (due, perhaps, to genuinely mitigating circumstances). The point here is that the retributivist concept of desert need be no mysteriously primitive one, much less a self-justifying basic belief. Rather, it is none other than an admixture of two long-standing and essentially retributivist cluster concepts: responsibility and proportionality, as I have construed them. It is this notion of retributivism, then – not some straw person rendition of it – that must be refuted by its detractors. The absence of such refutation, however, seems to indicate that any plausible (positive) theory of punishment must make use of this concept of desert. For what positive theory of punishment would dare to deny that only the guilty (and responsible) should be punished, and that only those responsible in the requisite sense be punished in proportion to the harm(s) for which the wrongdoer is being punished? And if it is true that these essentially retributivist concepts are required of any plausible positive theory of punishment, then it seems to follow that all such theories of punishment just are retributivist ones, at least, in a quite meaningful and significant sense. This, however, would caution Rawls from attempting to borrow without permission a concept central to retributivism in attempting to construct a conceptual alternative that, in the end, appears to be indistinguishable from a viable form of retributivism. Could it be true that, for all of the generations of brilliant philosophical discourse on punishment (much of which was devoted to refuting retributivism) that failure to understand the genuine essence of retributivism has now landed us in precisely the position from which so many incisive minds attempted to steer us away? Finally, my analysis of desert in corrective justice contexts seeks to follow Feinberg’s caution to not inflate the role of desert.61 But I concur with him that “desert is always an important consideration in deciding how we ought to treat persons, ...but it is not the only consideration and is rarely a sufficient one.”62 This is why I analyze the concept of desert in a complex manner, entailing considerations of responsibility and proportionality.

61 62

Feinberg, Doing and Deserving, p. 83. Feinberg, Doing and Deserving, pp. 83-4.

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Having defended a version of retributivism from some important objections, and having in the process clarified the basic retributivist categories and provided a set of principles of proportional punishment to begin to guide retributive sentencing from under or over punishing offenders, it is important to address questions of the putative role of forgiveness and mercy in a criminal justice system.

CHAPTER 5 FORGIVENESS, APOLOGY, AND RETRIBUTIVE PUNISHMENT Much has been made in recent philosophy of whether or not punishment is the state’s duty, instead of being its mere right. However, it need not be shown by the retributivist that the state has a duty to punish. For retributivism itself does not entail such a view, though some versions of retributivism (e.g., Immanuel Kant’s) espouse the claim that punishment is the perfect duty of the state. But as Jeffrie G. Murphy argues, all that needs to be shown by the retributivist (or by the utilitarian, if I am correct) is that the punishment of criminals is the state’s right, i.e., that it is justified for the state to exercise hard treatment on duly convicted criminals if it so chooses.1 This is sufficient to ground both the institution of punishment as well as the practices of particular forms of punishment. The retributivist need not be committed to the position that each and every crime must be punished (a claim entailed by the view that the state has a perfect duty to punish offenders) in order to be justified in inflicting punishment on offenders. Instead, retributivists might argue, as I do, 2 that not every crime must be punished, perhaps because of practical considerations of resource capability. This is not to say, however, that the state forgives and shows mercy or leniency towards crimes it does not punish; it simply chooses not to punish them because of its lack of sufficient resources, ceteris paribus. Some philosophers have made the suggestion that forgiveness and mercy play meaningful roles in the sentencing of criminals. But what precisely is forgiveness in retributivist punishment contexts? There are variant analyses of the nature and function of forgiveness.3 Subsequent to providing a description 1 2 3

Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988), p. 180. J. Angelo Corlett, “Making More Sense of Retributivism,” Philosophy, 78 (2003), pp. 277-85; “Making Sense of Retributivism,” Philosophy, 76 (2001), pp. 77-110. See, for instance, Zoltan Balazs, “Forgiveness and Repentance,” Public Affairs Quarterly, 14 (2000), pp. 105-27; Joseph Beatty, “Forgiveness,” American Philosophical Quarterly, 7 (1970), pp. 246-52; Piers Benn, “Forgiveness and Loyalty,” Philosophy, 71 (1996), pp. 369-83; Cheshire Calhoun, “Changing One’s Heart,” Ethics, 103 (1992), pp. 76-96; Richard S. Downie, “Forgiveness,” The Philosophical Quarterly, 15 (1965), pp. 128-34; A. C. Ewing, The Morality of Punishment (Montclair: Patterson-Smith, 1970); Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970); Eve Garrard and David McNaughton, “In Defence of Unconditional Forgiveness,” Proceedings of the Aristotelian Society, 103 (2002), pp. 39-60; Kathleen A. Gill, “The Moral Functions of an Apology,” The Philosophical Forum, 31 (2000), pp. 11-27; Trudy Govier, Forgiveness and Revenge

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and assessment of some views of the nature and function of forgiveness, I will provide my own analysis of forgiveness in the context of criminal justice. Along the way, I shall discuss the nature and possible role of an apology in a reasonably just legal system. Is there room in retributivism, especially Kantian retributivism, for forgiveness and mercy? Assuming that pardoning is at least a species of mercy that entails forgiveness, then even Kant, with all that he makes of the state’s right and perfect duty to punish offenders, seems to make room by way of implication (in his mention of the sovereign’s right to pardon) for forgiveness and mercy of some kinds. In a previous chapter, I pointed out that the logical (London: Routledge, 2002); “Forgiveness and the Unforgivable,” American Philosophical Quarterly, 36 (1999), pp. 59-75; Trudy Govier and Wilhelm Verwoerd, “The Promise and Pitfalls of Apology,” Journal of Social Philosophy, 33 (2002), pp. 67-82; Joram Graf Haber, Forgiveness (Savage: Rowman & Littlefield Publishers, 1991); Pamela Hieronmi, “Articulating an Uncompromising Forgiveness,” Philosophy & Phenomenological Research, 62 (2001), pp. 529-55; Margaret Holmgren, “Forgiveness and the Intrinsic Value of Persons,” American Philosophical Quarterly, 30 (1993), pp. 341-52; “Self-Forgiveness and Responsible Moral Agency,” Journal of Value Inquiry, 32 (1998), pp. 75-91; H. J. N. Horsbrugh, “Forgiveness,” Canadian Journal of Philosophy, 4 (1974), pp. 269-82; Martin Hughes, “Forgiveness,” Analysis, 35 (1975), pp. 113-17; Paul M. Hughes, “On Forgiving Oneself: A Reply to Snow,” The Journal of Value Inquiry, 28 (1994), pp. 557-60; “What is Involved in Forgiving?” Philosophia (Israel), 25 (1997), pp. 33-49; Aurel Kolnai, “Forgiveness,” Proceedings of the Aristotelian Society, LXXIV (1973-4), pp. 91-106; Berel Lang, “Forgiveness,” American Philosophical Quarterly, 30 (1994), pp. 105-17; Howard McGary, “Achieving Democratic Equality: Forgiveness, Reconciliation, and Reparations,” The Journal of Ethics, 7 (2003), pp. 93-113; Kathleen D. Moore, Pardons (Oxford: Oxford University Press, 1989); Herbert Morris, “Murphy on Forgiveness,” Criminal Justice Ethics, 7 (1988), pp. 15-19; Jeffrie G. Murphy, “Forgiveness and Resentment,” Midwest Studies in Philosophy, 7 (1982), pp. 503-16; Getting Even (Oxford: Oxford University Press, 2003); “A Rejoinder to Morris,” Criminal Justice Ethics, 7 (1988), pp. 20-22; Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988); William R. Neblett, “Forgiveness and Ideals,” Mind, 83 (1974), pp. 269-75; Joanna North, “The ‘Ideal’ of Forgiveness: A Philosopher’s Exploration,” in Robert D. Enright and Joanna North, Editors, Exploring Forgiveness (Madison: University of Wisconsin Press, 1998), pp. 15-34; “Wrongdoing and Forgiveness,” Philosophy, 62 (1987), pp. 499-508; David Novitz, “Forgiveness and Self-Respect,” Philosophy & Phenomenological Research, 58 (1998), pp. 299-315; R. J. O’Shaughnessy, “Forgiveness,” Philosophy, 42 (1967), pp. 336-52; Norvin Richards, “Forgiveness,” Ethics, 99 (1988), pp. 77-97; Robert Roberts, “Forgivingness,” American Philosophical Quarterly, 32 (1995), pp. 289-306; Geoffrey Scarre, After the Evil (Burlington: Ashgate, 2004); Tara Smith, “Tolerance and Forgiveness: Virtues or Vices?” Journal of Applied Philosophy, 1 (1997), pp. 31-42; Nancy Snow, “Self-Forgiveness,” The Journal of Value Inquiry, 28 (1994), pp. 75-80; I. Thalberg, “Remorse,” Mind, 72 (1963), pp. 545-55; P. Twambley, “Mercy and Forgiveness,” Analysis, 36 (1976), pp. 84-90; Nigel Walker, “The Quiddity of Mercy,” Philosophy, 70 (1995), pp. 27-37; John Wilson, “Why Forgiveness Requires Repentance,” Philosophy, 63 (1988), pp. 534-35; and Keith E. Yandell, “The Metaphysics and Morality of Forgiveness,” in Robert D. Enright and Joanna North, Editors, Exploring Forgiveness (Madison: University of Wisconsin Press, 1998), pp. 35-45.

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problem this poses for Kant’s idea of the right and duty of the state to punish offenders. As I argued therein, a retributivist such as Kant who argues for both the state's right and perfect duty to punish offenders cannot, without pain of contradiction, argue for the pardoning of any criminals. This is why I argue that the state has a right, but not a perfect duty, to punish offenders. This leaves open the state’s prerogative to not punish some offenders, not out of forgiveness or mercy, but rather out of a sense that certain minor offences are overly troublesome to prosecute. It seems to me, then, that retributivism ought not to espouse the notion of pardon or forgiveness, unless, perhaps, for practical considerations such as the offence is “not worth punishing.” There seems to be no non-ad hoc means by which to make it a requirement given retributivism’s commitment to the concepts of desert, responsibility, and proportional punishment. Mercy might be construed as compassion or forbearance shown to an offender, a forbearance to punish even when justice demands it. So too with forgiveness. “Like forgiveness, mercy is a gift to which the wrongdoer never has a right.”4 It is “the suspension or mitigation of a punishment that would otherwise be deserved as retribution, and which is granted out of pity and compassion for the wrongdoer.”5 This makes forgiveness and mercy moral prerogatives, not duties. And this holds true even if offenders sincerely apologize for their wrongs and become fully rehabilitated. Retributivism (of the sort defended by me elsewhere6 and in the previous chapter) has no room for forgiveness and mercy as duties, because they thwart justice and fairness. They fail to respect humanity’s sense of moral responsibility (in the duty and liability senses). Aside from rather minor cases, forgiveness and mercy by the state are morally unjustified. If forgiveness and mercy make any sense at all, they make some limited (perhaps personal, psychological or religious) sense between a victim and the offender(s) of crimes against her. But neither the state nor anyone else ought to presume to have the right to forgive the criminal “for the victim.” DISTINGUISHING FORGIVENESS FROM FORGIVING In light of the foregoing, I shall now set forth and defend my own analysis of forgiveness. Forgiveness is to be contrasted with forgiving. Although forgiveness entails forgiving, forgiving does not entail forgiveness. Forgiving is related to what Peter Strawson refers to as “reactive attitudes” such as hatred or

4

Murphy and Hampton, Forgiveness and Mercy, p. 159. Murphy and Hampton, Forgiveness and Mercy, p. 158. 6 See note 2. 5

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resentment.7 Forgiving someone, either oneself or another, involves adopting a certain attitude toward them. It is the ceasing of resentment or hatred toward another because of what the other did to them wrongly.8 As Joel Feinberg notes, “To resent someone…is not merely to dislike him, but to have a negative feeling toward him in virtue of something he has done,…”9 Of course, the person to be forgiven must have harmed me “wrongly” in that their merely harming me, say justifiably, would not call for forgiving. This construal of the nature of forgiving is consistent with Murphy’s definition of “forgiveness,”10 though I shall distinguish two kinds of forgiving. ATTITUDE FORGIVING AND ACTION FORGIVING Forgiving may be of one or more of the following kinds: attitude forgiving or action forgiving. Attitude forgiving is the change of attitude that a person has when one no longer harbors resentment or hatred toward a person who has harmed11 one unjustifiably. Here I might, for the sake of my own mental health or for social or religious reasons, adopt a forgiving attitude toward the person who has harmed me, while at the same time still want her to be punished properly for her wrongdoing. This seems to be what Murphy has in mind when he initially discusses forgiveness: To forgive a wrongdoer involves a change in heart toward that person (the overcoming of resentment toward him), but this is not necessarily a change in one’s view on how that wrongdoer is to be treated. Because I have ceased to hate the person who has wronged me it does not follow that I act inconsistently if I still advocate his being forced to undergo punishment for his wrongdoing - that he, in short, gets his just deserts.12 Action forgiving, on the other hand, accrues when I change my hateful or resentful action toward another who has harmed me wrongly. Here I might 7

Peter Strawson, “Freedom and Resentment,” in John Martin Fischer and Mark Ravizza, Editors, Perspectives on Moral Responsibility (Ithaca: Cornell University Press, 1993), pp. 45-66. 8 This definition is consistent with the construal of forgiveness found in Ewing, The Morality of Punishment, p. 31; Moore, Pardons, p. 184. 9 Feinberg, Doing and Deserving, pp. 70-1. 10 Murphy and Hampton, Forgiveness and Mercy, pp. 15, 24. 11 For an analysis of the concept of harm, see Joel Feinberg, Harm to Others (Oxford: Oxford University Press, 1984). For an analysis of the concept of harmful wrongdoing, see Joel Feinberg, Harmful Wrongdoing (Oxford: Oxford University Press, 1990). 12 Murphy and Hampton, Forgiveness and Mercy, p. 33. Also see North, “The ‘Ideal’ of Forgiveness: A Philosopher’s Exploration,” p. 17.

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harbor resentment toward the person who has harmed me, but nonetheless not want her punished because I am not convinced that she will be punished fairly, or because of religious reasons I hold against harsh treatment of any kind. Action forgiving might be seen as a species of mercy, wherein what underlies mercy is attitude forgiving. Of course, forgiving might be both attitudinal and action-oriented. Whether attitude or action forgiving (or both), it is possible that I can forgive another without that person being genuinely forgiven. In other words, there can be forgiving without forgiveness. This is because the attitude or action of forgiving might not “take.” One reason why it might not take or become real is that the person being forgiven might not have committed an act such that they qualify as being in need of forgiveness, i.e., they might not have wrongfully harmed anyone. If I forgive Bonnie for being a racist, yet Bonnie is not a racist, Bonnie is forgiven, yet forgiveness has not necessarily been experienced by her. Perhaps the only sense in which this kind of forgiving is helpful is for the person forgiving, though it is hard to imagine that forgiving someone for something for which they are not guilty is helpful to anyone. Nonetheless, it could make the forgiver feel better in some way or another. Another reason why forgiving might not truly occur is that, though Bonnie knowingly committed a harmful wrongdoing toward another, Bonnie failed to apologize to her. In this kind of case, Bonnie is a racist of, say, the worst kind. But for whatever reason(s) (denial, lack of moral character, etc.) she refuses to apologize, or fails to apologize adequately. Her victim can forgive Bonnie to her own heart’s content; but as I argue below, unless and until Bonnie genuinely apologizes to her victim, Bonnie cannot experience forgiveness. That is, though Bonnie is rightly or wrongly forgiven, she is not one to whom “forgiveness” applies in this situation. Thus it is clear that there can be forgiving without forgiveness, even though there can be no forgiveness without forgiving. This renders dubious the assertion that “…forgiveness is unilateral. The wrongdoer need not be involved in any way for forgiveness to occur.”13 What this statement really describes is forgiving, not forgiveness. So there is a logic of forgiveness. Part of that logic is that it is necessary that if I forgive you, I must have been wrongfully harmed by you.14 Forgiveness “presupposes an affront, injury, transgression, trespassing or offence committed by one person against the other and consequently the other’s readiness or refusal to ‘forgive’ him.”15 But there is more to the logic of forgiveness than this. It is unfortunate that many philosophical accounts of forgiveness seem to

13

Haber, Forgiveness, p. 11. Downie, “Forgiveness,” p. 128. 15 Kolnai, “Forgiveness,” p. 92. 14

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write about it as if the focus of forgiveness ought to be on the one who, on their accounts, is required to forgive. Take, for example, the following statement: Forgiveness requires that a wrong not be disregarded or overlooked, but it also requires that the wrong not be allowed permanently to damage and distort one's personal relations. We are required to accept back into our heart a person who is responsible for having hurt and damaged us. If I am to forgive I must risk extending my trust and affection, with no guarantee that they will not be flung back in my face or forfeited again in the future. One might even say that forgiveness is an unconditional response to the wrongdoer, for there is something unforgiving in the demand for guarantees.16 Indeed, it is said that forgiveness is possible “even in the absence of repentance.”17 What is astounding about these statements is how counter-intuitive many of them are. Let us begin with the claim that “We are required to accept back into our heart a person who is responsible for having hurt and damaged us.” On what rational basis are we to think that this statement is plausible, especially in criminal justice contexts? Does the statement really mean to suggest that women victimized by rape, for example, are “required” to forgive their rapists? On precisely what grounds would this claim rest? On the basis of what nonquestion-begging principle would we be required to forgive others who wrongfully harm us? It seems to rest on the question-begging assumption that forgiving is a moral virtue and that the unwillingness to forgive is a moral vice.18 Indeed, it is asserted without supportive argument that “forgiveness is a high virtue, and also a hard one.”19 Yet this virtue ethics standpoint on forgiving is questionable. Assuming a roughly Aristotelian view of the moral virtues, a moral virtue is that moral property that is a mean between two extremes. In the case of forgiving, it is the moral virtue between the deficiency of never forgiving on the one hand, and always forgiving on the other. This implies that unconditional forgiving,20 e.g., a kind of forgiving that does not place any conditions at all on forgiving, is problematic from such a virtue ethics perspective. Unconditional forgiving cannot be a moral virtue if what it means is that one ought to forgive no matter what the circumstance. There is, then, no moral duty to forgive unconditionally. And this assumes for the sake of the 16

North, “Wrongdoing and Forgiveness,” p. 505. North, “Wrongdoing and Forgiveness,” p. 506. 18 Downie, “Forgiveness,” p. 130. 19 Scarre, After Evil, p. 17. 20 Garrard and McNaughton, “In Defence of Unconditional Forgiveness.” 17

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“Argument for Forgiveness as a Moral Virtue” that forgiveness is a moral virtue in the first place. Furthermore, if there is no absolute moral duty to forgive, one must be ever cautious to not make ad hominem assertions like the following regarding the forgiving others who have wrongfully harmed us: “It is indicative of the honour in which we hold the virtue that our criticism of people who cannot forgive those who have harmed them tends to be rather muted; we think of them not as falling short of some minimally acceptable standard of behaviour but as failing to rise to a superior, quasi-godlike, level.”21 I take this as paradigmatic of the victim-centered view of forgiving in that it places the primary moral burden on the victim of harmful wrongdoing to forgive, rather than placing that burden on the offender to perform some virtuous action. Moreover, some philosophers believe that those who choose to not forgive those who have wrongfully harmed them harbor resentment, even vengeance, toward the wrongdoer(s). But neither of these points is always true. One can refuse to forgive someone else and yet hold nothing against them simply out of respect for justice and fairness and a sense of having persons held responsible by the law for their harmful wrongdoings. There need be no emotive content one way or another regarding the refusal to forgive. Yet so many philosophers cannot rid themselves of the quasi-religious dogmas that in part motivate them to attempt to persuade us that forgiving, though not always the right thing to do, is in general the morally virtuous thing. And so they tend to deliver ad hominems about those who do not forgive others rather than plausible arguments as to why they are morally wrong for not doing so. One thing seems clear: “Forgiveness must always be freely chosen and should never be understood as obligatory.”22 Moreover, the statement (quoted above) that “If I am to forgive I must risk extending my trust and affection, with no guarantee that they will not be flung back in my face or forfeited again in the future” is problematic in that, while it is true that forgiveness might in some cases involve psychological risk for the one forgiving a wrongdoer, it certainly need not, as one who forgives need not be concerned with whether or not the wrongdoer becomes a recidivist. Also, it is dubious for such a claim to assume that forgiveness does not require at least the sincere promise not to harm the victim again. Is it, furthermore, true that “forgiveness is an unconditional response to the wrongdoer, for there is something unforgiving in the demand for guarantees”? Certainly blind or naïve forgiving would satisfy this description. But forgiveness unbound to such ideological dogma need not be. Why should not forgiveness be conceptually tied to a genuine apology of the wrongdoer? Would not the failure to do this result in a kind of cheapening of both the wrong 21 22

Scarre, After Evil, p. 17. Govier, Forgiveness and Revenge, p. 77.

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done to the victim, but also to a devaluing of wrongdoing itself? Would it not also lead one to think that forgiveness is granted and effective automatically, regardless of the wrongdoer’s desire to apologize? Do not these factors give us pause in thinking about the real nature of forgiveness and apology? It would appear that she who forgives her rapist without at least sincerely expressed guarantees from the wrongdoer that he will not harm her (or another) again amounts to some sort of lack of the victim’s self-esteem and self-respect. Indeed, genuine forgiveness would seem to require a genuine apology. For as Murphy argues, “Acceptable grounds for forgiveness must be compatible with self-respect.”23 It would seem that a victim’s self-respect would require a genuine apology on behalf of the offender for his wrongfully harming her. The previous point leads to the matter of whether or not forgiveness requires apology. As noted, some argue that forgiveness does not require it. Others simply stop short of arguing that apology is a necessary condition of forgiveness.24 However, it is unclear precisely what is meant by “forgiveness” if it does not require apology, unless, of course, all that is meant is that the forgiver simply place herself in a psychological state of not hating or harboring ill-will toward the wrongdoer. If this is all that is meant, then this sort of forgiving is innocuous. Yet it is difficult to understand how this psychological notion of forgiveness (i.e., forgiving) as one’s attempt to preserve her own mental sanity from consuming hatred has anything whatsoever to do with punishment and the law. For whether or not an offender ought to be punished by the state is a function of the extent to which the criminal is responsible for the harmful wrongdoing. That the victim or anyone else desires or decides to distance herself or themselves psychologically from, say, hating the offender is irrelevant to what the criminal deserves for what she did. Thus some other kind of “forgiveness” (indeed, forgiving) must be meant in criminal justice contexts. And the confusion about the nature of forgiveness suggests that some clarity needs to be achieved along these lines. Hence my distinction between forgiving and forgiveness: While forgiveness requires both the harmful wrongdoer’s apology to the victim and the victim’s forgiving her, forgiving (as we saw) does not require an apology from her harmful wrongdoer. Yet neither forgiveness nor forgiving, properly construed, places the moral burden on victims of harmful wrongdoing vis-à-vis their offenders. The foregoing discussion of recent views of the nature of forgiveness points to a fundamental flaw in previous philosophical accounts of forgiveness. They are victim-centered in the sense that they place the moral burden on victims of those whom they have the alleged duty to forgive. Consider, for example, Jean 23 24

Murphy and Hampton, Forgiveness and Mercy, p. 24. Murphy, Getting Even, p. 35. However, Murphy does state that “…it is not unreasonable to make forgiveness contingent on sincere repentance” (pp. 36, 39).

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Hampton’s understanding of the nature of forgiveness as that which involves a changing of the heart which does not amount to mere condoning of the wrongful act, and which is accompanied by an “offer of reconciliation.”25 Hampton goes on to claim that “reconciliation need not be made in words (we have a variety of ways of welcoming someone back). Forgiveness, on her view, can also take place without reconciliation: an offer may be impossible (e.g., if the wrongdoer has died) . . . and yet forgiveness of the wrongdoing can still occur. . . .”26 But this seems counter-intuitive. Notice the victim-centeredness of Hampton’s model of forgiveness. It is the victim who bears the moral burden of forgiveness and reconciliation. It is the victim who is to make room in her heart for the wrongdoer or her harmful act (In fact, it is, given Hampton’s account, the victim ,s death that makes reconciliation impossible! Even more counterintuitive is her idea that forgiveness of the wrongdoing can nonetheless occur). We find no arguments for these claims in Hampton’s otherwise interesting work on forgiveness. Her distinction between wrongdoers (as responsible agents) and performers of wrongs (those who commit wrongs but who are not, for one reason or another, responsible for them)27 will not help here, as the criminal law already makes the distinction between those who bear responsibility for their harmful wrongdoings and those who do not, based on the conditions of responsibility.28 As Hampton herself states, forgiveness pertains to resentment or hatred in regard to culpable wrongdoings, “demeaning actions for which their agents can be not only held responsible but also blamed.”29 Why place the moral burden of forgiveness on the victim? Why not place it on the harmful wrongdoer? After all, it is the rapist, for instance, who ought to humbly ask for forgiveness of the woman he rapes. To place the moral burden on the victim to forgive her rapist would be tantamount to arguing that supererogatory actions (like forgiving) are morally required. It is to fail to understand that wrongdoers have moral duties to apologize and that their victims never have moral duties to forgive their offenders. In studying several accounts of “forgiveness,” it seems that many scholars mistake quasi-religious notions of the category for philosophical and ethical ones. In many instances, they unwarrantedly either intentionally or unintentionally sneak into the definition of “forgiveness” some quasi-religious underpinning, often noted in terms of reconciliation or peace of mind or the 25 26 27 28 29

Murphy and Hampton, Forgiveness and Mercy, p. 42. Murphy and Hampton, Forgiveness and Mercy, pp. 42-3. Murphy and Hampton, Forgiveness and Mercy, pp. 52-3. See Chapter 1 of this book. Murphy and Hampton, Forgiveness and Mercy, p. 55. Hampton provides a more precise account of the nature of resentment (Murphy and Hampton, Forgiveness and Mercy, p. 57). She even distinguishes, rather incisively, between resentment and malicious hatred (Murphy and Hampton, Forgiveness and Mercy, pp. 70-1).

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like, rather than analysing the term philosophically. For instance, one philosopher asserts that “the teleology of forgiveness is reconciliation.” 30 But quasireligious articles of faith can never replace the need for rigorous philosophical argument and analysis. And underlying ideas of reconciliation and peace of mind are in just as much need of justification as any other; they enjoy no privileged status in philosophical discussions. This implies that the previous (unconditional) account of “forgiveness” is a category mistake, as it conflates what is supererogatory for moral virtue with what is required for it. Indeed, there are entire accounts of “forgiveness” that hardly, if at all, mention the apology of the harmful wrongdoer, much less do they insist on the necessity of a genuine apology by the wrongdoer.31 Even when some philosophers do recognize some extent to which an apology by the wrongdoer is important to forgiveness, the moral burden is still placed on the victim to forgive the apologetic wrongdoer.32 Consider the following assertion made by H. J. N. Horsbrugh: “…I share with Professor Downie, [the view] that one ought always to forgive one’s injurers so far as this lies in one’s power.”33 This appears to amount to the claim that we have an absolute moral duty to forgive those who have wrongfully harmed us. Yet this position is vulnerable to the considerations noted above, such as when there is no authentic apology forthcoming from the wrongdoer. Moreover, to discuss the concept of forgiveness without understanding that it is tied vitally to the notion of apology is to distort significantly the nature of forgiveness. It is, in essence, to conflate it with forgiving which can obtain absent an apology (as noted earlier). And this conflation amounts at least in some cases to an error of equivocation between “forgiveness” and “forgiving.” Furthermore, other philosophers argue in favor of a conception of the nature of forgiveness that makes apology essential, and amounts to an activation or reactivation of a relationship.34 Indeed, it is claimed that “The moral apology implies a request for forgiveness and is an initiative toward reconciliation.”35 Again, the concept of reconciliation enjoys no privileged position in ethics and is in need of philosophical justification. It is not a self-justified “basic” belief. It should never be presumed in contexts of criminal justice. For it is problematic in cases wherein criminals harm victims whom they do not know or those with whom they want or have no relationships. And if it is insisted that such victims and their offenders ought to want to reconcile with one another, either out of moral principle, the good of society, or moral virtue, then such a claim must be 30

Roberts, “Forgivingness,” p. 299. Downie, “Forgiveness;” North, “Wrongdoing and Forgiveness.” 32 Kolnai, “Forgiveness,” p. 98. 33 Horsbrugh, “Forgiveness,” p. 272. 34 Balazs, “Forgiveness,” pp. 118f. 35 Govier and Verwoerd, “The Promise and Pitfalls of Apology,” p. 67. 31

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supported by sound argument. After all, moral intuitions are hardly in accord on this matter. And a utilitarian ethic with its several problems cannot simply be assumed to be plausible to make room for the notion of reconciliation between victims and their offenders. Concerning “repentance” or apology, Hampton has little, if anything, to write, except that it “of course provides excellent evidence of the decency of the wrongdoer.”36 But there seems to be no indication from Hampton as to what a harmful wrongdoer ought to do or what she needs to do in order that a victim of wrongdoing might have a perfect or imperfect duty to forgive her. In other words, Hampton provides no meaningful content to the notion of apology that might provide “excellent evidence of the decency of the wrongdoer” and make forgiveness meaningful. As such, the informational content of her conception of forgiveness seems lacking in a crucial respect. Moreover, insofar as Hampton’s notion of forgiveness asks us to distinguish the wrongdoer from the wrongful action itself,37 and insofar as she rejects the moral hatred of the wrongdoer in favor of the act except in instances where the wrongdoer “thoroughly identifies himself with that cause,”38 she seems to advocate a distinctly utilitarian model of punishment, or even a moral education model of “punishment.”39 For her, forgiveness is not inconsistent with the expression of the value of the wrongdoer’s victim, with deterrence and with moral education.40 However, what Hampton’s conception of forgiveness fails to capture is the consistency of a plausible conception of forgiveness according to which wrongdoers are held responsible for their actions, at least to the extent that they satisfy the conditions of responsibility. In other words, Hampton’s notion of forgiveness appears to reveal her underlying anti-retributive bias, one that, for all she has written, ignores (if Robert Nozick41 and Feinberg42 are correct) the distinction between retribution and vengeance.43 Yet, as I shall now argue, the concept of forgiveness itself entails an apology on behalf of the wrongdoer. But what exactly might it mean to genuinely apologize for a wrongdoing? And precisely to whom must a wrongdoer apologize in order for the apology to be legitimate, morally speaking? 36

Murphy and Hampton, Forgiveness and Mercy, pp. 83-4. Murphy and Hampton, Forgiveness and Mercy, p. 151. 38 Murphy and Hampton, Forgiveness and Mercy, p. 148. 39 Murphy and Hampton, Forgiveness and Mercy, pp. 150-52. 40 Murphy and Hampton, Forgiveness and Mercy, p. 158. 41 Robert Nozick, Philosophical Explanations (Cambridge: Harvard University Press, 1981), pp. 366-68. 42 Joel Feinberg, “What, if Anything, Justifies Legal Punishment?” in Joel Feinberg and Hyman Gross, Editors, Philosophy of Law, Fifth Edition (Belmont: Wadsworth Publishing Company, 1995), pp. 613-17. 43 Murphy and Hampton, Forgiveness and Mercy, p. 119. 37

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On my conception, another distinction between forgiveness and forgiving is that the latter does not require an apology from the harmful wrongdoer in order for forgiving to be effective. One of several examples of a conception of forgiving that is mistakenly cast in terms of forgiveness is found in the following claim: “…in some instances merely saying, ‘I forgive you’, does constitute forgiveness. …it is a mistake to imagine that there is some specific and definable activity, which activity and no other constitutes forgiveness.”44 According to this view an apology is not a necessary condition of forgiveness, making the performative of forgiving sufficient by itself for forgiveness. On my analysis, such a notion really describes forgiving, which requires no apology. It is a performative utterance that expresses the injured party’s harboring no resentment toward the wrongdoer. But forgiveness is not a mere performative. It is a relational state that occurs between a victim and her perpetrator under particular circumstances.45 What most philosophers of “forgiveness” confuse is the subjective recognition of a person’s being the recipient of a forgiving expression with the relational state of forgiveness, which requires an apology. Forgiveness, then, is the ceasing of the harboring of reactive attitudes toward one who has wrongfully harmed her typically (but not always)46 by way of the performative act of forgiving which requires the offender’s genuine apology. But what precisely is an apology such that it might effect forgiveness? Further, is forgiveness (forgiving and an apology and the relational state that they imply between the victim and her offender) a moral duty of a victim of harmful wrongdoing? If so, what kind of moral duty is it, and why? WHAT IS AN APOLOGY? The first distinction to be drawn concerning the notion of an apology is similar to the distinction made between forgiveness and forgiving. It is common knowledge that anyone can “apologize” if by this is meant that one simply utters words that seem to indicate by their mere content that one is sorry for what they said or did to another. But when such an “apology” is offered without sincerity, we ought to refer to it as mere “apologizing.” So we must be ever mindful of the distinction between genuine and pseudo apologies: “Asking to be forgiven is sometimes expressed by apologizing to an injured person. But, of course, apologising and genuinely asking for forgiveness cannot always be safely equated.”47 I shall distinguish this notion of apologizing from the much 44

Neblett, “Forgiveness and Ideals,” p. 269. A similar but independently arrived at point can be found in Scarre, After Evil, p. 83: “There is an important distinction to be drawn between forgiveness as an act and as the state brought about by that act.” 46 Again, it is possible for forgiveness to obtain without any words being spoken or written. 47 O’Shaughnessy, “Forgiveness,” p. 350. 45

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more robust one of an apology. It is not apologizing that is required for forgiveness, but an apology. Forgiveness requires an apology,48 which is the sincere and genuine admission of one’s own harmful wrongdoing and regret for having committed it because it was harmful and wrongful. The sincerity of an apology has to do with its being serious and honest. A genuine apology requires that a harmful wrongdoer: (i) communicate effectively to the victim what she did that was wrong; (ii) communicate effectively to the victim why what she did to the victim was wrong; (iii) communicate effectively to the victim that and in what particular ways she is actively committed to rectifying the wrong; and (iv) offer to the victim good reasons why she will not harm the victim again. Condition (i) requires that the wrongdoer admit to the victim that what she did was indeed wrong and requires apology. Assumed here is the notion that a genuine apology cannot obtain to the extent that the one offering it understands and admits that her harmful wrongdoing requires an apology in terms of an admission of both guilt and wrongfulness of the crime. Condition (ii) requires that the offender explain to the victim why what she did to her was wrong. This is not the same as the wrongdoer’s rationalizing her actions, or trying to “explain away” their significance regarding the perpetration of the wrongdoing and the harm it caused the victim. The idea here is that the harmful wrongdoer needs to effectively communicate to her victim(s) the reasons why the harmful act was wrong, thereby demonstrating that the offender understands the extent of her harmful wrongdoing. Condition (iii) requires that the wrongdoer outline to the victim specific ways in which she will make things as right as they can be made right for the victim, without minimizing the harm caused or providing lame excuses. It is the expression of the criminal's rectificatory responsibility for the harmful wrongdoing in question. This is the sort of explanation that is not likely to occur soon after the crime has taken place. For it takes some time to map out an intelligent and workable strategy for rectification, even if it is not the one imposed by law. Most important of all, this condition of apology requires action on behalf of the apologetic one in her making as right as possible the harm wrongfully done to the victim. It is vital to understand that condition 48

A similar point is made in Balazs, “Forgiveness,” p. 120, except that Balazs argues that “inasmuch as repentance is a moral duty, forgiveness is one, too” (Balazs, “Forgiveness,” p. 126). I proffer a different notion of forgiveness, as we shall see. Rather than being a moral duty, forgiveness is morally supererogatory. However, that forgiveness requires apology (e.g., repentance) is found in Wilson, “Why Forgiveness Requires Repentance,” p. 534: “Genuine forgiveness does require repentance on the part of the wrongdoer, and must be … a bilateral and not just a unilateral operation.” Failure of the wrongdoer to apologize, Wilson and I concur, serves as an obstacle to that wrongdoer experiencing true forgiveness. This does not prevent, I would add, her victim from forgiving her for whatever reasons. Those who deny that forgiveness requires an apology include Benn, “Forgiveness and Loyalty,” p. 382.

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(iii) makes adequate rectification a necessary condition of a genuine apology. And since a genuine apology is a necessary condition of forgiveness, it would follow that adequate rectification is a necessary condition of forgiveness. Genuine forgiveness cannot obtain without a genuine apology and adequate rectification. Condition (iv) serves as the offender’s word, whatever good it is, to her victim that she will refrain from ever harming her again in the way she did. This involves expression of practical ways in which the offender will not engage in recidivistic behavior against the victim. It may or may not include a more general promise of anti-recidivism. It is transparent that my analysis of a genuine apology is offender-centered, thereby making my analysis of forgiveness offender-centered. Moreover, (i)(iv) also require sufficient expressions backed by actions to make the perpetrator’s apology as genuine as can reasonably be assured. This in turn tends to make it more likely that forgiveness can accrue based on the selfrespect of the victim in forgiving her offender. Why? Because at the very least, it is required for forgiveness that the offender demonstrate, among other things, that she knows and admits why her harmful wrongdoing was harmful and wrongful, and that she is by word and deed already committed to rectifying her harmful wrongdoing. And so long as her victim knows these facts about her offender, it is unlikely, if not impossible, for her to engage in forgiveness behavior out of a lack of self-respect. What is implausible is an analysis of an apology that omits sincere deeds as well as a changed attitude on the part of the harmful wrongdoer. My analysis places no moral duty on victims to forgive. It is also implied here that harmful wrongdoers who do not satisfy these conditions (i)-(iv) lack the moral standing to be either eligible for forgiveness or able to experience it. The locution “to the extent that” indicates that there are of course degrees to which apologies can be offered by harmful wrongdoers. In particular, there are degrees to which an offender might comprehend her harmful wrongdoing. This in turn will effect the extent to which she can effectively communicate to her victim what she did that was wrong and harmful and why it was wrong and harmful. Furthermore, note that “communicate” includes not only verbal but nonverbal expressions. Thus apologies—even genuine ones—need not be made in words, though they must be made in terms understood by and acceptable to the victim. Thus apologies are genuine to the extent that (i)-(iv) are satisfied. This analysis of the nature of a forgiveness and apology is similar to the one found in Joanna North. On her account, there are nine “stages” of an apology from the wrongdoer’s perspective. One stage involves the “cognitive recognition on the part of the wrongdoer of the harm he has done” which entails a full understanding by him of the consequences of his action. Stage two is the wrongdoer’s remorse49 for committing the harm. Stage three involves the 49

For a philosophical analysis of the concept of remorse, see I. Thalberg, “Remorse,” pp. 545-55.

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wrongdoer’s resolving never to commit such an act again, but also to become a better person. Stage four involves a consciousness of “some measure of selfimprovement and development of self-respect.” Stage five is the offender’s desire to be forgiven. Stage six involves his plea to his victim to be forgiven. Stage seven entails the wrongdoer’s self-forgiveness. Stage eight involves his acceptance of the victim’s forgiveness. And at stage nine “the wrongdoer and the injured party are reconciled.”50 North’s first stage of forgiveness is captured by (i) and (ii) of my account of an apology. But insofar as remorse is an emotional mental state, it is unnecessary for an apology on my account, and hence unnecessary for forgiveness since a genuine apology is all that is necessary for forgiveness. However, if I. Thalberg is correct in stating that “genuine remorse must include a disposition to mend one’s ways,”51 then remorse is consistent with conditions (iii) and (iv) of my analysis of the concept of an apology insofar as a disposition leads one to action since remorse is directed at the results of one’s actions.52 That the wrongdoer is resolved never to harm the victim again is captured in condition (iv), though I see no reason to require for an apology that a perpetrator commit herself to becoming a better person. The apology is directed at the act for which the wrongdoer seeks to be forgiven, not for future things that have yet to occur.53 This implies that the wrongdoer’s awareness of self-improvement and development of self-respect is also unnecessary for an apology. That a wrongdoer desires to be forgiven seems to be implied by (i)-(iv), as does his actual plea to be forgiven by her victim and her acceptance of the victim’s forgiving her. But what does the wrongdoer’s self-forgiving have to do with forgiveness, except to suggest that “ideal” or complete forgiveness (e.g., beyond the criminal justice context) entails not only the proper forgiving of the wrongdoer by the victim, but also the proper forgiving of the wrongdoer by herself? Finally, that victim and offender be reconciled is in no way a requirement for an apology, or for forgiveness, for the reasons stated above. It is rather suspect that so many thinkers are rather presumptuous along these lines.54 Yet a moment’s reflection would inform the careful philosopher that to require reconciliation for forgiveness places the moral burden on the 50

North, “The ‘Ideal’ of Forgiveness: A Philosopher’s Exploration,” pp. 30-3. Thalberg, “Remorse,” p. 554. 52 Thalberg, “Remorse,” p. 546. 53 Unless, of course, a purely utilitarian theory of punishment is assumed. 54 See Benn, “Forgiveness and Loyalty ,” p. 373. “While the ideal result of forgiveness is reconciliation, it seems plain that the reconciliation of victim and offender cannot, itself, be an essential element in the victim forgiving the offender” (Yandell, “The Metaphysics and Morality of Forgiveness,” p. 44). I might add that it has yet to be demonstrated by independent argument that “the ideal result of forgiveness is reconciliation” of victim and offender. 51

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victim to forgive her offender. In other words, the implication of the “forgiveness for the sake of reconciliation” notion is that victims must be morally virtuous and at least in most cases forgive those who harm them wrongfully, lest society have a host of unreconciled persons. Yet we find no independent argument in support of such a claim. It is presumption, plain and simple, perhaps based on some form of religion or humanism (or both) which holds that no human is beyond the pale of forgiveness and reconciliation with others. But this seems to amount to a circular argument: we ought to forgive because we ought to reconcile ourselves to one another when there are breaches of decent conduct that would alienate us one from another; we ought to reconcile ourselves to one another because we ought to forgive! My analysis of forgiveness and apology also bears some resemblance to the following one: A person who apologizes and asks for forgiveness acknowledges by so doing that he was wrong. In this admission, he is seeking, in effect, to separate his character and future actions from his past wrongs. If he sincerely apologizes, he is indicating that he is sorry for the wrongdoing, is committed not to repeat it, and wishes to be understood as a person so committed.55 That the offender is committed not to repeat her harmful wrongdoing is captured by condition (iv) of my analysis of an apology. And perhaps (i)-(iv) implies that the wrongdoer should feel a true sense of sorrow for her action, inaction, or attempt that wrongfully harmed her victim. However, the above conception of an apology does not require that the wrongdoer communicate anything to the victim. Yet it is the wrongdoer’s apology to the victim that is necessary for the wrongdoer to experience forgiveness. Moreover, nothing in this view of an apology seems to capture the following consequences of conditions (i)-(iii): that what she did was wrong; that it was wrong for such and such reasons; and that the offender will do all that she can to rectify the harm done to the victim. It is difficult to understand how anything short of what is contained in conditions (i)-(iv) can constitute a genuine apology. Yet until this moral fact is understood by those analyzing forgiveness, then crucial questions about this important concept will remain begged here and there, often in subtle ways. Another argument in favor of the moral duty to forgive unconditionally those who have wrongfully harmed us is that if causal determinism is true, then there is no freedom of action and no moral responsibility for our actions, inactions or attempted actions, as the case may be. Thus it is in order to forgive 55

Govier, Forgiveness and Revenge, pp. 46-7.

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wrongdoers because (if causal determinism is true) wrongdoers are not to be blamed for their harms to others. Neither are they legitimate subjects of punishment. In reply to this argument, it must be pointed out that if causal determinism is true in the hard deterministic sense, then there is no sense to be made of ethics and moral responsibility, and not even moral practices such as forgiving others make much sense. For we only forgive those who are blameworthy for harmful and wrongful behavior, not those who could not have done otherwise than what they in fact did. So forgiving such “persons” (if “persons” is not too flattering a term for them in a completely deterministic world) seems to make little or no sense. Moreover, reconciliation as a goal or even as a prerequisite for forgiveness also makes little or no sense. Why ought we to be concerned with reconciling those who are causally determined in a strict sense to do whatever they do? After all, it is unclear that they are persons, as personhood would seem to require, among other things, an agent’s moral responsibility which in turn implies, among other things, her acting freely, freedom of action, etc., at least sometimes and to some meaningful extent. And how might our attempts at reconciliation via forgiving them make a difference in the deterministic sequence of life? The general moral skepticism resulting from hard determinism also infects moral concepts and practices of forgiving and reconciliation. Thus the argument for forgiveness and reconciliation cannot be based on the concept of hard determinism without seriously problematic consequences. IS THERE A MORAL DUTY TO FORGIVE? One thing is clear: There is no moral obligation to forgive under any circumstance. This point has been made previously.56 Some have argued that the reason for this is that one might be unconvinced of the sincerity of the apologetic criminal.57 However, this view makes a wrongdoer’s reform sufficient for forgiveness. But why should we think this is so? Why ought whether or not one has a duty to forgive another be contingent on whether or not the wrongdoer is reformed? To deny that there is no obligation to forgive is to misunderstand the nature of forgiveness itself. Among other things, forgiveness is an act of grace by the victim in response to her wrongdoer’s genuine apology. It is always the victim’s, and the victim’s alone, moral prerogative. It is never a duty of any kind, perfect or imperfect. Although it might make for good quasi-religious dogma to insist that agents are required to forgive those who wrongfully harm 56

Murphy and Hampton, Forgiveness and Mercy, p. 154; Richards, “Forgiveness,” p. 87. That forgiveness is a discretionary right is noted in Hughes, “Forgiveness,” p. 113. 57 Richards, “Forgiveness,” p. 80.

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them, it is nothing that enjoys philosophical support. Forgiveness is a moral prerogative under any circumstance; it is not a duty. Indeed, it would constitute a queer and cruel irony of justice to think that a victim has an obligation to forgive even the most apologetic of criminals! When all is said and done, the victim of the harmful wrongdoer’s action or failure to act or attempt to harm is not necessarily in the wrong for not forgiving. It is completely up to the victim, and the victim alone, to decide whether or not to forgive. In no way is she necessarily morally or otherwise defective or unjustified for not forgiving her harmful wrongdoer.58 While it is probably prudent to forgive minor offences against oneself or others, it is surely not obligatory. Moreover, it can sometimes be a sign of a significant lack of self-respect or respect for others to become overly forgiving of more serious wrongs, as Murphy argues.59 For example, while I might well find it not worth my while to harbor resentment toward a colleague for his unintentional racist actions toward me, I might find it more difficult to forgive his trying to (actively and over time) sabotage my career. But I would not be morally wrong if I did not forgive him for the racism. Likewise, I might find it easier to forgive my spouse for being inconsiderate once in a while in ways that are not overly serious. However, I might find it more difficult over time to forgive consistent and seriously inconsiderate acts or words on her part. Although it might be true that forgiveness can in some instances be the first step toward healthy reconciliation between parties alienated by the wrongful acts of another, nevertheless hasty forgiveness, or forgiveness where it ought not to be granted, can in some cases be a step in the direction of permissiveness that is sometimes a sign of diminished selfrespect and respect for others. Note that each of the four conditions of an apology that I set forth [(i)-(iv)] requires that the offender communicate in some way with the victim. Of course, there are many cases where this would be impossible, e.g., where victims have been murdered, are comatose, etc. The implication of the above analysis of forgiveness is that where conditions (i)-(iv) of an apology are not satisfied, forgiveness is impossible, except in third-party cases. I might, if I so choose for whatever reasons (good or bad) forgive the murderer of my brother for the harm caused to me by my brother’s being murdered, but this in no way serves as a proper substitute for my murdered brother’s forgiving the murderer (in the case where my brother’s murderer is alive to be forgiven). I surely cannot forgive, for my brother, the murderer for his murdering my brother. Only my brother can do that, should he be alive (but he is dead, and so he cannot forgive him!). 58

“Necessarily” because it is possible to not forgive one unjustifiably, particularly when the one refusing to forgive knows that her not forgiving her perpetrator (whom the victim knows has offered a genuine apology) will result in harm experienced by the perpetrator that far outweighs the victim’s experienced harm from her perpetrator. 59 Murphy and Hampton, Forgiveness and Mercy, pp. 16-9.

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All that I can do, should I choose to do so if my brother’s murderer truly apologizes for the murder of my brother, is to forgive her for the wrongful harm that she caused me in her murdering my brother. This too is part of the logic of forgiveness. The scope of forgiveness is agent-relative. One can forgive only those who have wrongfully harmed one and then only for the harms caused to oneself. This is because, as Murphy argues, I do not myself have the moral standing to forgive you unless I have myself been the victim of your wrongdoing.60 There is no such thing as vicarious forgiveness, philosophically and morally speaking. As J. D. Mabbott avers, “No one has any right to forgive me except the person I have injured.”61 One important question here concerns the matter of third party forgiving. It is morally problematic for the state to so much as consider third-party forgiving as sufficient for the state’s forgiveness of any criminal for any serious crime. While some citizens, even members of the surviving family of murder victims, might forgive the murderer, say for religious or psychological reasons, this might effect attitude forgiveness, but in no way ought it to influence the state’s meting out justice.62 After all, the unexcused murderer has in effect eliminated the only party who can effect forgiveness on her. Hence the seriousness of murder without excuses or significant mitigation. As we know from Chapter 3, Kant argues that murderers must be put to death. Where there are no excusing or significant mitigating factors, murderers must receive capital punishment. What is consistent with Kant’s view here is that there is no manner in which the murderer can experience forgiveness63 since the only person to whom she can truly apologize cannot receive her apology. And since a genuine apology is a necessary condition for forgiveness, and in turn forgiveness a necessary condition of mercy, murderers cannot possibly experience forgiveness. For if the victim is dead, one philosopher writes, “and if the offender is sincere in his repentance, then the offender must endure the burden of knowing that he can never be fully forgiven.”64 Third parties may engage in attitude forgiving to their heart’s content, but this ought in no way whatsoever change the fact that 60

Murphy and Hampton, Forgiveness and Mercy, p. 21. J. D. Mabbott, “Punishment,” Mind, 48 (1939), p. 158. For a similar view, see Benn, “Forgiveness and Loyalty,” pp. 376f.; Holmgren, “Forgiveness and the Intrinsic Value of Persons,” p. 341. For a denial of this claim based on the assumption of third party forgiveness, see Neblett, “Forgiveness and Ideals,” p. 270. 62 Perhaps attitude forgiveness is what some newly freed slaves in the U.S. engaged in when they “forgave” their former masters [See Howard McGary and Bill Lawson, Between Slavery and Freedom (Bloomington: Indiana University Press, 1992)]. One likely reason for these instances of forgiving was for the newly freed slaves to be able to get along with others in a society that still largely denied them the full rights of citizenship, as Howard McGary and Bill Lawson so incisively explain. 63 That is, concerning the primary victim of her crime. 64 Benn, “Forgiveness and Loyalty,” p. 383. 61

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the murderer in such cases has robbed herself of any opportunity to receive the forgiveness necessary to save her from the same treatment that she enacted wrongfully, intentionally, voluntarily and knowingly on her victim.65 Pseudoforgiveness is not the same as genuine forgiveness. One can be forgiven yet not experience forgiveness, as I noted earlier. Moreover, if the concept of forgiveness just discussed is to be applied to the state and its citizenry, it seems not to lend itself to a simple widening of application from individual to state. For in individual cases of wrongful harms and forgiveness, it is relatively simple who the victim is and who the offender is, and who needs to apologize if there is any hope, not demand or obligation, of forgiveness. But with the state and its punishment of offenders, things are more complicated. There are wide differences of moral intuition concerning whether or not forgiveness ought to play any role at all in a system of punishment. Although it is clear who is to apologize if forgiveness of offenders is to be forthcoming, it is not clear who ought to do the forgiving. Is it the victim herself? Is it the state? It would seem that a system of punishment cannot rely on the whims of individuals and their variant abilities and willingness to forgive, nor of a majority of citizens. Because the laws of the state need to be public and predictably enforced in relevantly similar circumstances, the state must be the agency that employs forgiveness, if it is ever justified in the first place. In personal life, forgiveness surely has its place, especially when interpersonal relationships are at stake. Indeed, to err is to be human, but to forgive is just as human. Indeed, as Murphy states, “The person who cannot forgive is the person who cannot have friends or lovers.”66 But is it justified for the state to forgive criminals? If crimes are offences against, not only victims, but the state, then a question arises as to whether or not the state ought to have a right to forgive a criminal for what she has done to harm another citizen. This is especially important in cases where the victim has no intention to forgive her offender. On what grounds might the state forgive the criminal? On utilitarian grounds because to forgive provides for social stability in some cases? This would sacrifice, among other things, a citizen’s right to peace and tranquility in favor of social utility. On retributivist grounds, say, because the criminal does not deserve to be punished? But if a criminal does not deserve to be punished, then she is not a candidate for punishment in the first place, and forgiveness is not appropriate. Furthermore, how many citizens must want to forgive an offender before the state can rightly forgive her? A majority? If so, how large a majority? And what if the crime in question is a racist hate crime? Is it a numerical majority of the general population that would be required for 65 66

For a similar view of third party forgiving, see Benn, “Forgiveness and Loyalty,” p. 374-75. Murphy and Hampton, Forgiveness and Mercy, p. 17.

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forgiveness and mercy toward the criminals? Or, would a numerical majority of those within the victim’s ethnic group be required to justify forgiveness and mercy? Or both? Forgiveness and mercy in retributivist justice contexts is quite problematic, though these practices have room in personal life as Murphy’s above statement about forgiveness, friends and lovers makes plain. DOES THE STATE HAVE A DUTY TO SHOW MERCY ON OFFENDERS? To this point much has been argued concerning forgiving, forgiveness and apology. But even if it were the case that there is some duty on the part of the state to forgive offenders, it would not follow straightaway that it ought to show them either mercy or leniency in punishment contexts. An independent and plausible argument needs to be marshalled in favor of the claim that criminals ought to be shown mercy. Even if there is a moral right of the state to show mercy on some criminals given special circumstances, this is hardly an argument in favor of the claim that mercy ought to be demonstrated to offenders in regular circumstances. Precisely what constitutes a special case, and why? These are hard questions facing those who would violate the requirements of desert, responsibility, and proportionality. Moreover, Claudia Card argues that mercy is a discretionary right of the state, not a moral duty.67 This seems reasonable, though precisely what kind of right it is remains a mystery if desert is fundamental to any plausible theory of punishment. Even if forgiveness were to accrue in light of a genuine apology by the harmful wrongdoer, this in no way nullifies the blame of the wrongdoer, but only the resentment that her victim would otherwise have toward her for the harmful wrongdoing. But the blameworthiness persists, and because of this punishment is not somehow, mysteriously, unjustified on moral grounds. Absent a sound argument to the effect that mercy is required in certain criminal justice contexts, all of the forgiveness in the world (and forgiving also!) does nothing to make immoral the institution of punishment so long as particular forms of punishment are meted out properly. If such an argument is forthcoming, perhaps what is then needed is a set of rules for governing mercy in contexts of punishment.68 PUNISHMENT INCLUSIONISM AND PUNISHMENT EXCLUSIONISM It seems that the matters of forgiveness and mercy in sentencing harmful wrongdoers underlie a fundamental difference between punishment theories. 67 68

Claudia Card, “Mercy,” The Philosophical Review, 81 (1972), pp. 182-207. For a philosophical discussion of such rules, see Walker, “A Quiddity of Mercy,” pp. 32-7.

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On the one hand, there is punishment inclusionism which argues that punishment of offenders ought to be based on models of political, material, normative and linguistic inclusion. Such models aim to treat wrongdoers as members of society but not as alienated ones. In punishing wrongdoers, they aim to maintain some meaningful extent to which wrongdoers are included in normal political processes of the community, share in the material resources of the community, share in the community’s values, and share in the language of public life. Yet, it is argued, punishment exclusionism would advocate the punishment of wrongdoers in ways that would or tend to make such inclusion impossible.69 R. A. Duff asks whether punishment exclusionism (which is indicative of how wrongdoers are treated in most societies), “must” be so.70 However, Duff’s formulation of the problem reflects an underlying bias in favor of forgiveness and mercy, or in favor of treating harmful wrongdoers as ends in themselves or as meaningful and valuable societal members. Presumably, he means to include all such offenders, as his discussion seems to make no distinction in the context of punishment inclusionism between certain offenders who ought to be treated inclusively and those who ought not to be. Yet it is precisely this fact that, it appears, identifies a difficulty with his version of punishment inclusionism. “The question” is not, as Duff avers, whether punishment exclusionism and what it implies (on his construal) “must be so.” Rather, the question for normative ethics and punishment theory is precisely this: whether or not punishment ought to be inclusionistic or exclusionistic (or a mixture of each), contingent on the circumstances of harmful wrongdoing. Now this way of framing the question is far less biased, if biased at all. While the tone of some of what I have argued or asserted in the previous pages seems as though my version of retributivism is a straightforward instance of punishment exclusionism, this would be a misunderstanding of my position. While focussing on the sentencing and punishment of harsh criminals with few, if any, mitigating circumstances, I would clearly and rightly be construed as a punishment exclusionist. But my position on the punishment of “mild” harmful wrongdoers or those harsh wrongdoers who have significant mitigating circumstances would at least in many cases amount to some form of punishment inclusionism. The reasoning behind this hybrid conception of punishment inclusionismexclusionism is relatively straightforward. In many cases, punishment of deserving offenders requires inclusion as members of society, while in other instances, for example, the wrongful act is so heinous and harmful that—absent 69

R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), pp. 75-7. 70 Duff, Punishment, Communication, and Community, p. 77.

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significant mitigating factors–no amount of punishment could possibly serve as adequate hard treatment of the wrongdoer. In these latter cases, excluding such offenders from society in varying degrees just would add to the already hard treatment they deserve and ought to receive. Examples that come to mind here include massive corporate fraud of Charles Keating, et. al., the terrorist murders of Oklahoma City, those in Union Carbide who were primarily responsible for (negligent regarding) the deaths of thousands of Bhopal Indians, among numerous other examples. Some examples of crimes against humanity, historic and contemporary, that warrant hard treatment indicative of punishment exclusionism include: Adolf Hitler and high-ranking members of the Nazi Party and the then German Military, Andrew Jackson and high-ranking members of the then U.S. military, Harry Truman, and George W. Bush, among many others. For these individuals are, respectively, primarily (though inexclusively) responsible for the genocide of millions of Jews, the genocide of millions of Native Americans, the morally unjustified bombing and killing of millions of Japanese civilians, and starting a morally unjust war in Iraq, killing thousands of innocent civilian and combatants in the process. To hold these criminals to account for their evils according to a punishment inclusionistic model would be beyond the pale of moral respectability. Thus a general kind of punishment inclusionism is implausible. To argue that my hybrid conception conflates the Rawlsian distinction between the justification of the institution of punishment with the justification of punishments simply misses the point. For my hybrid conception holds for both the aim of the institution of punishment as well as for particular forms of punishment. Contrary to Duff, incapacitory punishment is (at least in principle) morally justified to the extent that it is deserved, such as in the general kinds of cases I imagine. Moreover, Duff’s complaint that incapacitory and exclusionistic punishments “cease to treat” offenders “as autonomous, responsible citizens of a liberal polity”71 is false. For on my theory of punishment, both the institution of punishment and particular forms of punishment have both exclusionary and inclusionary elements, contingent on the facts of the case. Some harmful wrongdoings call for exclusionary and even incapacitory punishments (To deny this is to deny the very possibility that some wrongdoings could ever qualify as deserving of such kinds of punishment, which in turn would constitute a denial of the principle of proportional punishment), while others (perhaps most) do not. In either case, it is simply incorrect to think that exclusionary punishment does or cannot treat offenders as autonomous citizens, whether or not they find themselves in a liberal society. First, exclusionary or inclusionary punishment should be meted out based on what the offender deserves out of respect for her 71

Duff, Punishment, Communication, and Community, p. 78.

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autonomous choice to commit a wrongdoing.72 Second, only those who are deserving of either exclusionary or inclusionary punishment should receive it. And since on my view to deserve punishment is to be responsible for a wrongdoing warranting proportional hard treatment to the harm(s) to others for which the offender is responsible, punishment of either the exclusionary or inclusionary variety must respect the offender as a responsible citizen, whether or not she resides in a liberal society. Such offenders, whether sentenced to exclusionary or inclusionary punishments, are to be treated as significantly responsible agents. If they are not seen as responsible agents, then they simply do not qualify as punishable ones. These points hold true, on my view, for both the punishment of individual agents as well as for the imposition of compensatory sentences on collective ones. My primary aim in this chapter was to expose some of the weaknesses in the concept of forgiveness as some philosophers have attempted to apply it to punishment contexts. Forgiving perhaps has significant sentimental value in such contexts. But it is hardly morally required. One way in which previous forgiveness theories have erred is to have placed the moral burden of forgiveness on the victim of wrongdoing, rather than on the perpetrator. Also, it has in some instances led philosophers to believe that punishments that are exclusionary or even incapacitory by nature are unjustified as a means of a state’s response to harmful wrongdoing of any kind. This counter-intuitive scheme produces a notion of forgiveness, and even mercy, which has led astray those who might otherwise have a clearer sense of justice and fairness. In the next chapter, I shall articulate an argument in favor of capital punishment in certain cases. Following this I consider several objections to the argument and to capital punishment in general.

72

This rather Kantian idea was noted in Chapter 3 and can be traced to Herbert Morris, “Persons and Punishment,” The Monist, 52 (1968), pp. 476-501.

CHAPTER 6 CAPITAL PUNISHMENT Having in Chapter 1 set forth a basic conception of responsibility which not only serves as part of the informational content of the concept of desert, and having in Chapter 4 set forth and defended a novel conception of retributivism that evades (to some meaningful extent) the difficulties posed by numerous punishment theorists, and having in the previous chapter articulated notions of forgiveness and apology that are sensible for any plausible positive theory of punishment (especially retributivism), it is time to discuss the moral justificatory status of capital punishment. This is especially important in that retributivism and other plausible positive theories of punishment require punishments to be at least approximately proportional or fitting to crimes, and some crimes, such as murder, seem to require, at least intuitively, the taking of the murderer’s life for what she has done illicitly. Indeed, I have argued that both responsibility and proportionality require capital punishment for cases of murder, that is, where the offender satisfies strongly each of the conditions of responsibility articulated in Chapter 1. The beauty of the retributivist principles of proportional punishment is that it seems that any plausible positive theory of punishment must endorse them. To deny the principle that punishments must be as proportional as possible to the harms committed by the criminal would be to endorse, by implication, a system of punishment that would leave criminals open to sentencing of grotesque inequity and unfairness. Yet it is this same set of principles that exposes the moral arbitrariness of those who would dogmatically insist, for instance, that capital punishment for murder is unjust in principle. Others who argue that capital punishment for murder is in principle just, but unjust in practice and so must be stopped are guilty of the fallacy of arguing that simply because something is used or implemented improperly at times that we must abandon the practice until or unless we can practice it perfectly well. Yet this same reasoning would lead us to abandon all forms of punishment. For just as capital punishment is irreversible, so is serving several years in prison irreversible in terms of the serious physical, psychological and sociological damage it does to inmates. It is also irreversible in terms of the criminal’s never being able to retrieve those years lost in serving her prison term. Proportional punishment requires capital punishment for murderers who satisfy strongly the conditions of criminal responsibility for that crime, and the state owes it to all accused persons, regardless of ethnicity or gender, to make sure that they

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receive fair trials and juries of their peers. Justice requires at least this much of the state. In the United States, the Constitution and its Bill of Rights guarantee it. It should be noted that I do not assume herein that death is the worst punishment possible for offenders who deserve it based on their strongly satisfying the conditions of responsibility articulated in Chapter 1. Indeed, torture might well be worse. There might, for all I know, be even worse punishments for particularly heinous crimes. But the primary aim of this chapter is to come to terms philosophically with the socially and politically volatile issue of capital punishment. And we ought not assume that because there are worse punishments than death that somehow it follows logically that capital punishment is unjust. Nor would it follow that innocent and law abiding taxpaying citizens ought to cover the cost of housing duly convicted murderers serving “life” sentences instead of being put to death, especially in light of Jeremy Bentham’s principle of frugality pertaining to punishment, explicated in Chapter 4. It is vital to consider the possibility that much, if not all, of what is argued concerning the moral justifiedness of capital punishment might well rest on a fundamental conceptual confusion. On the one hand, capital punishment abolitionists seem to argue that the institution of capital punishment is so fraught with unfairness that the institution itself must be abandoned where it is still practiced—such as in the U.S.. On the other hand, advocates of capital punishment seem to argue on a different level. In arguing that capital punishment should be administered, they seem to mean that in particular cases of heinous crimes typically resulting in death of persons, offenders of such crimes ought to be put to death. I refer to this philosophical and ethical discussion as resting on a fundamental conceptual confusion in that it is surely incorrect to think that these two positions, as stated, constitute a set of contradictory propositions. For one can, as I do, admit that the institution or system of capital punishment (in the U.S., at least) is in principle and quite often in practice morally sound, as proponents of capital punishment are quick to point out (though for different reasons). Yet at the level of administering capital punishment to particular offenders, it is surely the case that sometimes those offenders (or innocents!) to whom death is administered are quite undeserving of it. But this is a set of unfortunate contingent factors regarding the meting out of particular forms of capital punishment. There seems to be no good reason to suppose that capital punishment is necessarily unjust, or that it must always be employed unjustly (After all, not all of those put to death on death row are innocent of crimes deserving of death). Thus it is no contradiction, and surely no conceptual absurdity, to hold both that the institution of capital punishment is morally unproblematic in principle and quite often in practice, while some particular cases of administering it are morally

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unjustified, all things considered. So I invoke Anthony M. Quinton’s and John Rawls’ distinction between justifying the institution of punishment versus justifying particular forms of punishment and argue that capital punishment abolitionists are correct to insist that some particular cases of capital punishment are wrong. But it simply does not follow that the reform so drastically needed in the U.S. legal system requires the abolition of the institution of capital punishment itself. And it is equally wrongheaded for capital punishment advocates to ignore the several instances of wrongfully inflicted capital punishment simply because many other cases of capital punishment were and are inflicted rightly. In what follows in this chapter, I argue that capital punishment is morally justified only in the cases where offenders deserve it. But I do so with the full recognition that no innocent person should ever be punished, especially by death. Any criminal justice system that is incapable or unwilling to continuously reform itself so as to eliminate unjust capital punishments should not exist, and must be replaced by one that makes it a primary priority to become and remain ever diligent in such a task. AN ARGUMENT IN FAVOR OF CAPITAL PUNISHMENT Consider the following Argument in Favor of Capital Punishment: (1) Criminals should get what they deserve, where what a criminal deserves is determined by the degree to which she commits harmful wrongdoing to others intentionally, voluntarily, and knowingly. (Desert as Responsibility Principle); (2) Criminals deserve to be punished in proportion to the harmful wrongdoings that they cause to others (Desert as Proportionality Principle); (3) One proper proportional punishment for harmful wrongdoings that take the lives of others is death; (4) Therefore, capital punishment is a proportional punishment deserving of harmful wrongdoings that take the lives of others. While many would accept this argument as being sound, others would challenge it on a variety of grounds: (a) Capital punishment is applied in racist, sexist, and classist ways and thus is administered unfairly (Unfairness Objection); (b) Capital punishment costs too much to keep offenders on death row, appeals, etc. (Economic Objection); (c) Capital punishment does not deter future crimes of a violent nature (Deterrence Objection); (d) It will not bring back to life those murdered (Pointlessness Objection); (e) Offenders should be rehabilitated, not punished with death (Rehabilitation Objection); (f) Murders

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should receive forgiveness and mercy (Forgiveness and Mercy Objection); (g) Capital punishment violates the human inviolable right to life as an intrinsic value (Intrinsic Value of Human Life Objection) and (h) A civilized society does not engage in the dehumanization that accompanies the administration of punishment by death (Civilized Society Objection). THE UNFAIRNESS OBJECTION The Unfairness Objection is really not an objection to (1)-(4), above. Rather, it is a concern with the manner in which the death penalty is meted out to offenders. It is an unfortunate fact of life in the U.S. that race, gender and socioeconomic class have played important roles in the system of criminal due process such that, for example, Native and African Americans, in particular, have been dealt horrible injustices.1 One cannot help but think that many of such injustices were racially motivated. Moreover, racism can play a role in the system of due process by disallowing such persons fair trials by juries of their peers. As a result, many innocent Native and African Americans, not to mention certain other folk of color, have been administered capital punishment when fairness might have dictated that they would be acquitted of capital charges. Indeed, the history of U.S. law is one containing a lengthy train of tremendous abuses, racist and otherwise. The long history of racial injustice in the U.S. criminal justice system is largely what motivated so many folk of color in the U.S. to support O. J. Simpson as he was acquitted of capital charges. For here was a case where a popular African American was acquitted. Perhaps some Anglos will begin to understand how painful it is to have so many Anglos acquitted on capital charges (who seem so guilty in light of the evidence) when they watch an African American man (who seemed so guilty in light of the evidence) acquitted of similar charges. Moreover, sexism abounds in various ways in the U.S. criminal justice system. One way in which it does is the rate at which women convicted of capital offences are actually put to death compared to the rate of men convicted of offences committed under relevantly similar circumstances. Only a small fraction of adult females convicted of capital offences compared to adult males on death row are actually put to death in the U.S.. This is a form of sexism in favor of women. And it bespeaks a kind of special pleading and lack of moral character of women and men who speak out for equal rights for women, yet who simultaneously fail to support equal treatment of women when it comes to punishment. 1

See J. Angelo Corlett, Race, Racism, and Reparations (Ithaca: Cornell University Press, 2003), Chapters 6-9.

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Furthermore, socio-economic class plays a role in making the administration of capital punishment problematic. As we know, the wealthy capital offenders are often able to hire the very best attorneys who are able to win acquittals for their wealthy capital offending clients. All in all, the Unfairness Objection asserts, capital punishment must be abolished because it is administered unfairly. However, the Unfairness Objection misses the point entirely. While it is unfortunately true that the U.S. criminal justice system is riddled with unfairness in racist, sexist and classist ways, this is insufficient reason to reject capital punishment in principle as an appropriate mode of punishing those who deserve it based on the facts of each case. Simply put, just because capital punishment is sometimes abused as a method of punishment, this is insufficiently good reason to infer that capital punishment is never morally justified. Does the fact that Reuben “Hurricane” Carter was unjustly convicted and sentenced to death row serve as sufficient reason to ban the death penalty? Of course not, as abuse does not negate proper use. The criminal justice system must continually and ever-diligently be honed to eradicate such racism, sexism or classism. But these are not excuses to ignore the duty of carrying out justice when evidence for conviction is clear and beyond reasonable doubt. Thus the Unfairness Objection is too weak to topple the Argument in Favor of Capital Punishment. All that it can do is support the claim that unjust cases of capital punishment should be avoided even at tremendous cost. Yet this hardly suggests that the death penalty is never justified. How does it follow, for instance, that because many people of color have been wrongfully accused, convicted, and sentenced to death that, for instance, no Anglo caught red-handed in murdering another with no mitigating circumstances ought not to be punished by death? How does Hurricane Carter’s wrongful imprisonment justify not putting to death, for instance, KKK nightriders who killed several African Americans over the years? How does it justify not inflicting death on those members of the Apartheid government in South Africa who were most responsible for the deaths and other forms of severe oppression against innocent black South Africans? How could it possibly justify not filing capital criminal charges with the International Criminal Court against certain Israeli governmental leaders for their respective roles in the perpetration of evils against Palestinians over the past few decades? And how could it possibly justify not filing capital criminal charges with the International War Crimes Tribunal against George W. Bush as a war criminal for his commencing a blatantly unjust war that has killed thousands? If duly convicted of such charges, would not such criminals deserve at least death for their responsibilities for the unjust takings of others’ lives? For these sorts of reasons, then, the Unfairness Objection must be rejected as it fails to defeat the Argument in Favor of Capital Punishment, as stated above.

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THE ECONOMIC OBJECTION The Economic Objection avers that capital punishment should be rejected because it costs too much to house, feed and guard death row inmates, and to cover the costs of their appeals prior to administering to them the death penalty. Certainly the cost of justified or necessary appeals is one of the costs of a good society that takes justice seriously. But as I argued in Chapter 4, much can be done in the U.S. to reduce dramatically the costs of inmate housing, feeding, etc. I am working under the assumption that those in mind are duly convicted capital offenders. Moreover, even if it were true that the costs of housing, feeding, and re-trying upon appeal some capital offenders is not able to be reduced significantly,2 it is the cost of a good society to make sure that justice accrues to those who deserve it. Only a crude form of act utilitarianism would place economic considerations above those of desert. Yet it is precisely such an “ethical” standpoint that seeks to maximize social utility at the expense of rights, justice, and desert. Thus the Economic Objection must be rejected because it seeks to ignore considerations of desert in favor of the economic costs borne by society in housing, feeding and re-trying death row inmates. It thus implicitly rejects (1) of the Argument in Favor of Capital Punishment, though for no good reason. Otherwise, it does not seem to even address the argument. THE DETERRENCE OBJECTION The Deterrence Objection states that capital punishment does not in the end deter violent crimes in societies that employ it. This is, however, an ambiguous claim. For it might mean that capital punishment deters no one in such societies. Or, it might mean that, statistically speaking, it does not deter violent crimes. I take it that what is meant by the Deterrence Objection is the latter claim since it would be absurd to think that no one is deterred from committing violent crimes because of the institution of capital punishment (I certainly am!). Nonetheless, it is important to understand that the Deterrence Objection illicitly begs the question as to the general justifying aim of the institution of punishment in favor of utilitarianism. Is this argument attempting to assert that even if someone deserves death as a punishment for her crime that she ought not to receive death unless capital punishment would deter, in statistical terms, other violent offences even in cases where there is an uncoerced and unambiguous confession and where the evidence is clear? Surely this is not a view that concerns itself with justice. Nor is it one that is concerned about what offenders deserve in terms of their levels 2

Indeed, such costs may need to be increased to better ensure due process of law.

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of responsibility. Certainly it is not a view that takes proportional punishment seriously. Thus it fails to address the Argument in Favor of Capital Punishment, above. The implications of this utilitarian standpoint are remarkably wrongheaded in that they imply, lacking further argument and analysis, that deterrence is a necessary condition of the justification of capital punishment. Some retributivists, on the other hand, argue that deterrence might be a jointly sufficient condition of capital punishment. But in the end my version of retributivism rejects deterrence as a condition of punishment in that the primary justification of any form of punishment, including capital punishment, is that the offender deserves it. If capital punishment deters future crimes, then that is a good thing. But it is surely not necessary that any punishment serve as a deterrent in order for it to be justified. Deterrence without desert is morally empty, as it would permit a society to punish only in those cases where society is made better off as the result of the punishment. Yet considerations of desert seem to play no role whatsoever in such a calculus, making ethical factors seemingly secondary, if relevant at all. Thus the Deterrence Objection falls short of defeating the Argument in Favor of Capital Punishment, and must be rejected in that it fails to take desert seriously. THE POINTLESSNESS OBJECTION What about the Pointlessness Objection? It essentially states that capital punishment is a waste of time and effort because inflicting death on the criminal cannot bring back, say, the life taken by her. Why not simply move on with life and attempt to make the best of a bad situation? In reply to this kind of move, it might be argued that the very fact that the life of the victim is gone forever and cannot be restored is all the more reason to kill the criminal responsible for the victim’s death, assuming, of course, that the conditions of responsibility are met strongly by the criminal relative to the case in question. It is a matter of taking responsibility seriously. And the Pointlessness Objection is a clear case of a lack of moral fortitude and character sufficient to hold everyone responsible for their actions, inactions, or attempted actions that illicitly harm others to the extent that the agents satisfy the conditions of responsibility. The Pointlessness Objection will be deemed plausible as soon as it becomes respectable to not take responsibility seriously. THE REHABILITATION OBJECTION The Rehabilitation Objection states that capital punishment is unjustified in that it ought to be replaced by rehabilitation. Rehabilitation helps to maximize social utility by making the criminal better as a citizen of society, thereby

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making society better than it would be if the criminal were simply put to death for her, say, illicitly taking the life of another. But there are problems with this line of reasoning. First, it begs the question against retributivist theories of punishment wherein social utility considerations are at best secondary considerations of what would justify a particular form of punishment. As such, the Rehabilitation Objection owes us an independent (non-question-begging) reason as to why rehabilitation rather than hard treatment is justified in such harsh cases of criminal behavior. Secondly, it is unclear that rehabilitation is a form of punishment in the first place. It is surely not hard treatment, no matter how averse a criminal is to rehabilitation in its multiplicity of forms. Thirdly, even if it could be shown that rehabilitation did constitute some form of punishment, it is obviously a form of punishment that is not in any way proportional to crimes of murder. So the Rehabilitation Objection fails to take desert, responsibility and proportional punishment seriously. As such, it fails to address in any obvious and direct way the Argument in Favor of Capital Punishment. It is, moreover, disheartening that so many well-intentioned but naïve individuals think that rehabilitation ought to replace punishment. In cases where the conditions of responsibility are not satisfied, or insufficiently so, then punishment ought to be mitigated, or defendants excused. In many such cases, rehabilitation might be the correct mode of the state’s response to crime. But at stake here are cases where capital criminals are strongly responsible for their conduct, and it is in such instances that rehabilitation arguments insult the moral intelligence of those who desire to take responsibility and proportionality seriously. In the end, the Rehabilitation Objection is a disguised form of punishment abolitionism. Retributivism can concur that many kinds of cases deserve rehabilitation. But it hardly follows from this that no case deserves and should be administered death. The case of David Westerfield, the San Diego college-educated professional who kidnapped from her own bed, raped and murdered Danielle Van Damn is an unproblematic case for capital punishment. It contains no mitigating circumstances whatsoever, and this after the fairest of trials and Westerfield’s having been represented by one of the finest defence attorney’s that money can buy! On what possible non-question-begging or non-quasireligious and non-dogmatically ideological “grounds” would such a case merit rehabilitation instead of the authentic justice that surely death can provide? The Rehabilitation Objection must be rejected because it fails to take seriously considerations of responsibility and proportionality in cases that are unambiguous. THE FORGIVENESS AND MERCY OBJECTION The Forgiveness and Mercy Objection insists that even if a criminal deserves capital punishment, forgiveness and mercy ought to play essential

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roles in any system of punishment. Since this “argument” is already treated extensively in the previous chapter, I will comment only briefly on it now. First, it begs the moral question against retributivism to argue that forgiveness and mercy ought to play essential roles in any criminal justice system. But even if this case could be made by way of independent argument, it is not clear that forgiveness and mercy are as virtuous as the argument implies. For to be moral virtues, forgiveness and mercy must, if an Aristotelian of the moral virtues is right, lie somewhere between deficiency and excess. Just as courage is the moral virtue that lies between the deficiency of cowardice and the excess of foolhardiness, and just as loyalty is the moral virtue that lies somewhere between the deficiency of disloyalty and the excess of being overly loyal, so too the moral virtues of forgiveness and mercy lie somewhere between the deficiencies of never forgiving and mercilessness (on the one hand) and always forgiving and being ever merciful (on the other hand). So the Forgiveness and Mercy Objection owes an explanation as to under precisely what conditions forgiveness and mercy are justified. It is uncommonly irrational to insist that criminals deserving of death always be forgiven (even if they truly apologize to their victims, which is impossible in cases of homicide, as argued in the previous chapter) or shown mercy. Moreover, such an argument needs to explain precisely how much mercy should accrue to such criminals, and why. Lacking such independent argument, the Forgiveness and Mercy Objection is found wanting because it pays insufficient attention to considerations of responsibility. Although it challenges (1) of the Argument in Favor of Capital Punishment, it fails to do so plausibly. THE INTRINSIC VALUE OF HUMAN LIFE OBJECTION The Intrinsic Value of Human Life Objection insists that all human lives have intrinsic value and that it is always morally wrong to kill a human being. Capital punishment kills humans. Therefore, capital punishment is always wrong. This argument is consistent with the following words of former U.S. Supreme Court Justice William J. Brennan, Jr.: “As I interpret the Constitution, capital punishment is under all circumstances cruel and unusual punishment by the Eighth and Fourteenth Amendments.”3 This argument is contingent on the plausibility of the claim that all human life is of intrinsic value and that it must be preserved no matter what the circumstance. Such a claim makes interesting religious or quasi-religious rhetoric. But it hardly counts as sound argument. While it might be true that 3

William J. Brennan, Jr., Speech to the Text and Teaching Symposium, Georgetown University, Washington, D.C., 12 October 1985, published in The Great Debate: Interpreting Our Written Constitution, Volume 11 (The Federalist Society, 1986).

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human life is special, morally speaking (ignoring for the moment the concern that this supposition is speciesist), it hardly follows that it is never justified to take a human life. Certain cases of self-defence come to mind here. But so do considerations of justice and desert (responsibility and proportionality). And while it might be true that humans begin life as morally innocent and valuable, it is also true that some of them cross moral boundaries that place them in rather staunch moral positions of being justified subjects for capital punishment insofar as they have illicitly taken innocent lives without mitigation or excuse. To deny this moral fact would be to incessantly cling to the dogmatic ideology of the intrinsic value of human life and the absolute protection thereof. Yet such a doctrine is counter-intuitive in light of the fact that it implies that even the most heinous homicidal maniac who satisfies strongly each of the conditions of responsibility discussed in Chapter 1 would never receive capital punishment, but rather be left to further burden taxpayers with ever-increasing costs of incarceration and/or attempts at rehabilitation. Thus the Intrinsic Value of Human Life Objection must be rejected in that it fails to take responsibility seriously. Although it implicitly denies (1) of the Argument in Favor of Capital Punishment, it hardly does so with good reason. THE CIVILIZED SOCIETY OBJECTION The final objection to the Argument in Favor of Capital Punishment is the Civilized Society Objection. Jeffrey Reiman is one who explicitly embraces the view that torture and death are inappropriate forms of punishment. Of torture in particular, he argues, “Even if no amount of time in prison would add up to the harm caused by a rapist or a torturer, it still seems that we ought not to torture him even if this were the only way of making him suffer as much as he made his victim suffer.”4 Even if it were just deserts to torture a criminal guilty of torture, it is morally wrong, Reiman argues, to torture that criminal. It is wrong, he avers, because punishing the criminal in such a way is uncivilized, e.g., it does not contribute to our building of our established civilization. More specifically, argues Reiman, “progress in civilization is characterized by a lower tolerance for one’s own pain and that suffered by others.”5 Since modern states have a moral “duty to act in ways that advance civilization,” he argues, punishments by torture and death are not justified on moral grounds even if they are what certain criminals deserve. Reiman’s objection to capital punishment is somewhat different than his objection to punishment by torture, 4

Jeffrey Reiman, “Why the Death Penalty Should be Abolished in America,” in Louis P. Pojman and Jeffrey Reiman, The Death Penalty: For and Against (Lanham: Rowman and Littlefield, 1998), p. 94. 5 Reiman, “Why the Death Penalty Should be Abolished in America,” p. 108.

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however. His position on capital punishment is that, though it is in principle acceptable in some cases, the enforcement of it in the U.S. practice it is fraught with racism and other modes of unfairness.6 It is clear, then, that Reiman’s Civilized Society Objection is linked to the Unfairness Objection, above. But is Reiman’s condemnation of the employment of torture and death as means of punishment plausible? First, it might be argued, as Reiman himself acknowledges, that his view of what counts as being civilized is ethnocentric.7 Although Reiman seeks to not take this charge very seriously, answering that if his position here is ethnocentric, “then so be it,”8 this hardly serves as a sensitive or reasonable reply to the concern. Reiman is effectively arguing that criminal justice systems throughout the world employing capital punishment or torture are simply less civilized than the system of “justice” in the U.S. which does not (except in a minority number of states) employ these methods – even in cases where criminals are duly convicted of torture or murder and deserve punishments that are rather proportional to the harms caused by their wrongdoings. Besides being a textbook instance of argumentum ad hominem in implying that states which employ torture and death as means of punishment are uncivilized, Reiman’s argument straightaway fails the demand for proportional punishment, and for what seem to be dogmatically ideological reasons. They are dogmatic and ideological in that he holds the view he does in spite of the fact that he is, for the sake of argument, imagining cases where fairness, due process and convicting the right perpetrator are precisely not the issues at hand! Thus Reiman’s view is not only susceptible to the charge of ethnocentrism (in that certain Latin American countries, say, embrace what Reiman calls without argument “uncivilized” punishments), but it does not take seriously proportional punishment even when it is, in his own words, “deserved.” Moreover, capital punishment, I argue, is in principle and proper practice morally justified on the grounds that it is a reasonably proportional response of the state to murderers and certain other harsh criminals who have not acted out of voluntarinessreducing factors or some other mitigating realities. Furthermore, as Ernest van den Haag argues against Reiman on the same point of discussion, from the supposition that some death row inmates are given capital punishment while others are not, it does not logically follow that it is incorrect to put to death those who, in Reiman’s own words, “deserve it.”9 Improper use of capital punishment must, when appropriate, be punished 6

Reiman, “Why the Death Penalty Should be Abolished in America,” pp. 67-8. Reiman, “Why the Death Penalty Should be Abolished in America,” p. 109. 8 Reiman, “Why the Death Penalty Should be Abolished in America,” p. 109. 9 Ernest van den Haag, “Refuting Reiman and Nathanson,” in A. John Simmons, Marshall Cohen, Joshua Cohen and Charles Beitz, Editors, Punishment (Princeton: Princeton University Press, 1995), pp. 332-33. 7

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harshly and its victims (the wrongly accused, convicted, and imprisoned, etc.) justly compensated.10 However, the improper punishment of some hardly serves as a good reason to think that others who deserve capital punishment should not receive it. To deny this line of reasoning, as Reiman and many other philosophers do, is to conflate two rather fundamentally distinct issues in punishment theory: first, what punishments are reasonably and properly proportional for those deserving punishment, and secondly, what ought to be done to a criminal justice system to safeguard all persons from false accusations, unjust prosecution and conviction, false imprisonment, and wrongful punishment. Moreover, not only does proportional punishment permit the state’s infliction of capital punishment on certain offenders, there is a sense in which failure of the state to impose capital punishment can sometimes result in a racist policy, however unintended.11 For example, consider, as is often the case in the U.S., that a significant number of duly convicted murderers are those who for one reason or another do not receive a sentence of capital punishment. Instead, they are sentenced to a number of years of incarceration, often with parole possibilities for whatever range of reasons. Also consider, as is often the case, that many such paroled murderers go right back into the communities of color in which they were raised, often times engaging in recidivistic and violent criminal behavior. A policy of paroling such criminals has the (albeit unintended) racist effect of burdening honest folk in many communities of color (by far the majority in such communities, to be sure) with the dangers of the dysfunctional ex-convicts, and often that burden includes violent oppression. It makes no good sense to parole such felons,12 as they ought to have inflicted on them whatever punishments that proportionality would dictate, all things considered. In cases of murder, not only is parole as part of a sentence13 morally repugnant, but the very idea of “life” prison sentences simply forces taxpayers to bear the financial burden for the murderers’ wrongful acts. Although my ideas in Chapter 4 for reducing the cost of prisoners assist in lowering the burden of taxpayers along these and related lines, taxpayers ought not to be burdened with even a fraction of the cost of a life sentence when the reduced cost of capital punishment (with a significantly economically reformed penal system) is what the offenders deserve based on 10

This much is beyond reasonable moral dispute, though the best way to realize these goals might be rather complicated. 11 For a philosophical analysis of the nature of racism, see Corlett, Race, Racism, and Reparations, Chapter 4. 12 Unless, of course, a racist society or juridical system fails to take seriously the “lives of color” in the U.S. burdened with such recidivist violence. 13 As opposed to, say, an agreement reached when a defendant or convict turns state’s evidence in order to convict other harsh criminals in a plea bargaining arrangement.

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their levels of responsibility for their crimes. I assume, of course, a willingness of a society to reform its juridical system in reasonable and frugal ways as Jeremy Bentham encourages us in some of his principles of proportional punishment (See Chapter 4).. Furthermore, Reiman’s argument begs the question against the use of torture and death as being civilizing factors in a society. For the same reasons that Reiman provides for omitting torture and death from a civilized society, punishments by torture and death might be used to maintain and strengthen just institutions in a civilized society, it might be argued. For giving torturers and murderers their just deserts, it might be said, preserves one of the most crucial elements of any civilized society, namely, that persons will be held accountable in full for what they do (so long as they deserve it: both positively in the form of rewards and negatively in the form of punishments) and to the extent of harm they wrongfully inflict on others. Thus punishment, when meted out correctly and proportionately, protects a just society from the moral decay of unjust punishments that would accrue should criminals be punished in inadequate ways, e.g., not in reasonable proportion to their wrongful harms to others. One cannot, moreover, help but wonder whether Reiman and others who hold views similar to his on this matter suffer from the utilitarian presumption of thinking quite wrongly that death is, intrinsically or not, a bad thing (an “evil”), when death in fact is not always a bad thing. Sometimes death is a good thing, such as when it is duly inflicted on another or on oneself in certain cases. Death is neither good nor bad, intrinsically speaking. It is good or bad depending on the full range of factors in the context of its occurrence. The same might be said of torture. The fact that many folk shrink at the very idea of, say, punishing even duly convicted torturers with torture is likely a testimony to the success of certain “humanitarian” doctrines brainwashing even some intelligent people to turn their backs on corrective justice in the name of “civilization.” But when the wrongful actions of torturers are not met with proportional punishment (including torture itself), then civilization cannot obtain if it is true that civilization is meant to include justice in punishment (including proportional punishment). For ad hoc justice is no justice at all, and Reiman is advocating a punishment system that would refuse to punish certain of our harshest criminals with what they truly deserve. That, indeed, is “uncivilized”! Recall that proportional punishment is the hard treatment inflicted on a guilty person who deserves a certain punishment and to a particular extent based on both the amount of harm she caused to others and the specific facts of her case, all things considered. To rule out, a priori, torture or capital punishment as possibly legitimate means of proportional punishment is to not take seriously proportional punishment, both in the particular kind of punishment meted out on an offender and in terms of the extent to which that punishment is inflicted on her.

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Reiman might reiterate his admission that he supports capital punishment “in principle,” and that his objection to its employment in the U.S. criminal justice system concerns the multifarious ways in which it is misused, especially on innocents, thereby invoking the Unfairness Objection to Capital Punishment, above. However, with the advancement of hopefully more affordable, widespread and proper use of DNA testing as evidence, the problem of inflicting capital punishment on innocents will be minimized significantly. So this practical objection to the use of capital punishment is rendered weak. And the same reasoning in favor of capital punishment where it is truly deserved seems also to apply to the use of torture as a means of punishment. Whether or not death is a good thing raises the issue of whether or not, in capital cases, the criminal’s opinions or feelings about death ought to be taken into account. In the case of Susan Smith, the South Carolinian convicted of murdering her two small children, it was argued by her defence attorney that Smith was suicidal and that capital punishment would be beside the point in her case. This desperate kind of rhetoric is, when successful, precisely what sometimes perverts the U.S. criminal justice system. Since when, except in truly mitigating circumstances such as insanity, should a criminal’s opinions or feelings about anything matter at the sentencing stage? If Smith were clinically insane, severely mentally retarded (or otherwise legally incompetent), for instance, then punishing her would be unjust.14 However, she was legally competent, and the search for mitigating factors in her case came up an empty set of “excuses.” What we need are reasons, not rationalizations, for the notion that a criminal’s opinions and feelings ought to be relevant to sentencing. Lacking such reasons, one would think that common sense would dictate that if anyone’s opinions and feelings ought to be considered, it would be that of the victims’! Of course, it is unclear whether even victim impact statements ought to be relevant in criminal proceedings.15 Such statements are an assessment of how the crime effected the victim’s family.16 Until recently, the U.S. Supreme Court has banned their consideration during the sentencing phase of capital cases out of concern that juries would be illicitly influenced by the content of such statements (Booth v. Maryland, 1987). However, the Court has changed its mind on this issue in that it was deemed proper to permit the counterbalancing 14

The same sort of constraints on punishment would apply to all wrongdoers, of course. Jeffrie G. Murphy, “Getting Even: The Role of the Victim,” in Jeffrie G. Murphy, Retribution Reconsidered (Dordrecht: Kluwer Academic Publishers, 1992), pp. 61-85. 16 Of course, many crimes have significant deleterious effects on more than just family members of the primary victim(s). Perhaps victim impact statements ought to, within the practical limits of court proceedings, involve a wider range of those significantly and adversely effected by the offender’s harmful wrongdoing. More practically, perhaps they ought to do so by appropriate representative expressions of extended victims’ harms experienced by way of the offender’s harmful wrongdoings. And this would, of course, be done, like other victim impact statements, during the sentencing phase of the criminal proceedings. 15

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of the presentation of mitigating factors in defence of the defendant (Payne v. Tennessee, 1991). But whether or not victim impact statements are justified, surely criminals’ opinions or feelings (as opposed to what genuinely amounts to facts of mitigation or excuse) ought not to be relevant.17 To suggest otherwise would seem to imply that a criminal ought to have an impact, in addition to her own criminal activity and overall responsibility, in how she ought to be punished! That Smith may have been suicidal (and hence ought to have a sentence of capital punishment mitigated) did not necessitate, logically speaking, her murdering her children. For all sorts of suicidal folk do not murder others, and then not even attempt to commit suicide as in Smith’s case. A botched but genuine suicidal plan would have left Smith herself injured, but not her children, who could have easily been left by her in the loving care of their father (her ex-spouse). That Smith now regrets that she was caught and feels badly and perhaps even suicidal is not a good argument against imposing capital punishment on her. For as we all know, the U.S. criminal justice system will house her for years until she, like most of the other women on death row, is finally not put to death. But even if the U.S. criminal justice system did decide to do the right thing in Smith’s case and put her to death, she would, as her defence attorney desired, spend a substantial amount of time in prison, forcing Smith to reflect on what she did to her children. Thus sentencing Smith to capital punishment not only gives Smith what she deserves, but it provides her attorney pleasure in knowing that while on death row awaiting her (albeit unlikely) execution Smith is left to reflect on her evil deeds.18 WHY CAPITAL PUNISHMENT? Implied in the foregoing discussion are at least four reasons why capital punishment ought to be inflicted on those who deserve it, such as those who are strongly responsible for harsh crimes like murder. First, proportional 17

18

This is not to suggest that a criminal’s state of mind is irrelevant to criminal prosecution or sentencing phases of due process. By “feelings” or “opinions” I have in mind what the defendant thinks about her receiving certain punishments over others, what impact her punishment will have on others, or herself, etc. Smith’s evil deeds include the unmitigated and unapologetic racism of hers in knowingly, intentionally, voluntarily, and falsely accusing an African American man (not even a particular African American man, thus indicting by false accusation all such persons) of being responsible for her children’s deaths. Surely this racist act ought not to be overlooked in the court’s assessment of Smith’s cold and calculated racist crime. For those unaccustomed to the ugly and incessant racist underbelly of U.S. history, this tactic was often used by Anglas in the South, eventually leading to the lynching of untold numbers of innocent African American men [Angela Davis, Women, Race & Class (New York: Random House, 1981), pp. 184f.] most or all of which lynchings remain unrectified.

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punishment justifies (even requires) it more than any other mode of hard treatment. And the fact that there exist no set of rules for proportional punishment that are complete and unproblematic in no way means that proportionality does not permit or even require the administration of death to some such duly convicted murders (e.g., where the cases are clearly evidenced, and due process rights are not violated, etc.). Second, life sentences penalize unnecessarily taxpayers with overly costly prison maintenance, and a policy of paroling such offenders with “life sentences” often leads to racist and criminal oppression of those who reside in many neighborhoods of color. Third, capital punishment can, when properly administered without racist, classist or sexist influences, assist the criminal justice system in maintaining and strengthening just institutions by ridding society of its worst elements. Fourth, capital punishment takes responsibility seriously to the extent that it is administered only to those who deserve it. In other words, capital punishment takes justice seriously, whereas the banishment of it can never do so as long as there are those who truly deserve it based on the range of facts of their respective cases. Having discussed various problems of responsibility and punishment in cases of individual harmful wrongdoing, it is important to set our sights on matters of collective responsibility, punishment, and compensation.

CHAPTER 7 THE PROBLEM OF COLLECTIVE RESPONSIBILITY In Chapter 1, a basic analysis of the nature of individual (retrospective) liability responsibility was set forth, and was taken as uncontroversial at least insofar as the basic conditions of responsibility are concerned. From that analysis, I now seek to build a notion of collective moral responsibility1 for use in the criminal law. Indeed, just as the analysis of individual moral responsibility was used to determine the extent to which an individual moral agent is punishable, the analysis of this chapter will seek to serve as the conceptual means by which to determine the extent to which a collective might be “punishable,” i.e., forced by the state to compensate parties they harm wrongfully. It has been argued that “the idea of collective moral responsibility seems not only to be theoretically respectable but of great practical importance. If so, it is important that it receive a warmer welcome from philosophers than it has in the past.”2 Indeed, some keen philosophical minds have provided the respectability that collective responsibility theory deserves, and this chapter is an attempt to make further progress in that general direction. Burleigh T. Wilkins argues that: “I cannot provide a list of necessary and sufficient conditions for holding a collective responsible for the faulty actions of some of its members, but I can perhaps do some of the reflection, which would precede the creation of such a list.”3 In this chapter, I shall address the question of what are some of the necessary conditions of collective responsibility. By “responsibility,” I mean, as in Chapter 1, retrospective liability to blame and punishment. As Joel Feinberg points out, collective responsibility is, not unlike vicarious responsibility, a species of strict liability in the sense that each of these kinds of legal (liability) responsibilities are assigned to agents where the contributory

1

The analysis will be congruent with, for the most part, the views set forth in J. Angelo Corlett, “Corporate Punishment and Responsibility,” Journal of Social Philosophy, XXVIII (1997), pp. 96-100; “Collective Punishment,” in Encyclopedic Dictionary of Business Ethics, Edited by Patricia Werhane and R. Edward Freeman (London: Blackwell, 1997), pp. 117-20; “Collective Responsibility,” in Werhane and Freeman, pp. 120-25; “Corporate Responsibility for Environmental Damage,” Environmental Ethics, 18 (1996), pp. 195-207; “Collective Punishment and Public Policy,” Journal of Business Ethics, 11 (1992), pp. 207-16; “Corporate Responsibility and Punishment,” Public Affairs Quarterly, 2 (1988), pp. 1-16. 2 Margaret Gilbert, Sociality and Responsibility (Totowa: Rowman and Littlefield, 2000), p. 152. 3 Burleigh T. Wilkins, Terrorism and Collective Responsibility (London: Routledge, 1992), p. 97.

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fault condition is substantially weakened or absent.4 Thus collective responsibility, as a form of strict liability, dispenses with actus reus as a condition of responsibility. Because criminal liability typically requires faulty conduct, courts usually employ fines as punishment for collective wrongdoing rather than imprisonment or other forms of hard treatment. This latter point will receive attention in Chapters 8 and 9. However, this chapter will be devoted to a philosophical analysis of the conditions of collective responsibility that respects a strengthened requirement of actus reus and contributory fault, rather than weakening these conditions of liability to punishment. ANALYZING COLLECTIVE RESPONSIBILITY What are the conditions of collective responsibility? Furthermore, do any collectives satisfy these conditions? Consider the Principle of Collective Responsibility (PCR): It is justified for one to ascribe to a conglomerate responsibility with respect to an outcome or a state of affairs to the extent that: (i) that conglomerate did the harmful thing in question, or at least that its action, omission, or attempt made a substantial causal contribution to it (i.e., that it is responsible for the harmful outcome in the causal sense); (ii) that conglomerate is an intentional agent concerning that outcome, i.e., that its action, inaction or attempt (say, in cases of negligence, where “negligence” is construed as the creation of an unreasonable risk of harm to others) is caused by its wants and beliefs; (iii) that conglomerate is a voluntary agent concerning that outcome; (iv) that conglomerate is an epistemic agent concerning that outcome; (v) the causally contributory conduct must have been in some way faulty (i.e., that it is responsible for the harmful outcome in the blame sense);5 and (vi) if the harmful outcome was truly the fault of the conglomerate, the required causal connection must exist between the faulty aspect of its conduct and the outcome.6 4

Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p. 223. This condition is related to the notion of collective feelings of guilt based on collective wrongdoing. For an incisive discussion of collective guilt, see Margaret Gilbert, “Group Wrongs and Guilt Feelings,” The Journal of Ethics, 1 (1997), pp. 65-84. 6 This notion of collective fault [(i), (v)-(vi)] is borrowed from Feinberg’s notion of individual liability (See Feinberg, Doing and Deserving, p. 222). 5

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As with responsible individuals discussed in Chapter 2, we want to know whether or not conglomerates may be morally liable for their inactions (omissions and even attempts) as well as for their actions as they are causes (of one kind or another) of outcomes or states of affairs.7 By “conglomerate,” I mean a collection of persons into a diversified whole which is capable of acting, as a collective, intentionally, knowingly, and voluntarily such that it is at fault, and acts with sufficient mens rea such that it qualifies as a punishable agent. Collectives that cannot act thusly, that is, those that lack the capacity to do so, are aggregates such as random collectives, lacking decision making structures necessary for responsible action, omission or attempted action. But precisely what does it mean to say that a group of persons acts “as a collective”? Here I am concerned with the notion of collective responsibility that respects the legal requirement of actus reus. At least part of what it means is that such persons act teleologically, e.g., with a particular agreed upon purpose or aim in mind. As Margaret Gilbert argues, collective responsibility entails collective action, which in turn entails “joint commitment.” A joint commitment is a commitment of persons to do something as a group.8 More exactly, she writes, There is a group action if and only if the members of a certain population are jointly committed to pursuing a certain goal as a body, and in light of this joint commitment relevant members (perhaps not all) successfully act so as to reach the goal in question.9 This teleological account of collective action does well to describe the kind of commitment that is needed for collective action. But the admission that not all members of the collective need be a part of the commitment process raises peculiar difficulties regarding collective moral responsibility. According to Gilbert’s account of collective responsibility, “…we are not forced to say that given collective guilt, each member of the group in question is personally morally blameworthy.”10 However, it would appear that when it 7

For an incisive discussion of shared moral responsibility for inaction, see Larry May, “Collective Inaction and Shared Responsibility,” Nous, 24 (1990), pp. 269-78; Sharing Responsibility: Expanding the Domain of Moral Responsibility (Chicago: University of Chicago Press, 1992); David Copp, “Responsibility for Collective Inaction,” American Philosophical Association (Central Division), 1990; and Gregory Mellema, “Shared Responsibility and Ethical Dilutionism,” Australasian Journal of Philosophy, 63 (1985), pp. 177-87. 8 Gilbert, Sociality and Responsibility, p. 147. 9 Gilbert, Sociality and Responsibility, p. 148. 10 Gilbert, Sociality and Responsibility, pp. 150-51.

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comes to punishment of such a collective, it would be unjust to inflict it on the collective unless each member of the collective satisfied to some meaningful degree the conditions of responsibility. Otherwise, the punishment (and ascription of responsibility grounding it) would be in violation of the retributivist (and rule utilitarian) notion that only the guilty should be punished. For example, if I am an active, voting citizen of a democratic regime, this does not make me necessarily responsible in any meaningful sense for what goes wrong with the political leadership I elect. For even as a dutifully informed citizen, I might have been deceived about what the candidates would plan to do, and why. Or, the leadership I helped to elect to office might simply do the wrong thing, against my protest, in, say, providing military assistance to another country. Should I as a mere member of the country doing the wrong thing be held responsible for the wrongdoing? If so, then if terrorist activity aimed at my country were ever morally justified,11 I would become a justified target of such terrorism, which seems counter-intuitive. It is precisely because I protest my country’s involvement in such matters that I am, at least to some significant extent, morally immune from such measures of political retribution. Thus Gilbert’s notion of collective responsibility is problematic in that it seems to imply the moral responsibility of innocents concerning retributive justice. Nonetheless, Gilbert’s teleological notion of collective action is helpful in establishing what counts as a collective for purposes of responsibility. For it indexes collective action to a particular purpose or aim for which more than simply individuals might be held accountable, even punishable, for wrongdoing. I would add, however, that her analysis may also serve to indicate that we as individuals tend to be members of multiple collectives simultaneously. For instance, I am a citizen of the United States, a member of the American Philosophical Association (indeed, a lifetime member!), a philosopher, a member of the faculty of a particular university, and so on. While I might not be responsible for a collective wrongdoing as a member of one collective, I might well be responsible for a wrongdoing as a member of another. Moreover, I might also be responsible in a blame and punishable sense as a member of one or more collectives, while I am responsible in a praiseworthy sense as a member of another. And my degree of responsibility in each case may or may not vary. So the spectrum of responsibility within and between collectives makes me, normally, responsible in a complex array of ways. But it is incorrect to think that simply because I am a member of a collective that I am collectively 11

For accounts under which terrorism and other forms of political violence might be morally justified, see J. Angelo Corlett, Terrorism: A Philosophical Analysis (Dordrecht: Kluwer Academic Publishers-Philosophical Studies Series, 2003); Ted Honderich, After the Terror (Edinburgh: University of Edinburgh Press, 2002); and Wilkins, Terrorism and Collective Responsibility.

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responsible for what that collective does wrongly. That would appear to be an instance of the fallacy of confusing moral retrospective liability responsibility with that of role responsibility, a distinction made in Chapter 2. From the supposition that I have a role in, or am a member of, a collective it does not follow that I am responsible (liable), jointly with other members of the collective, for what that collective does, omits to do, or attempts to do. It would appear, then, to run afoul of the fallacy of division whereby it is wrongly assumed without independent and plausible supportive argument that members of a group are responsible for something simply because the group to which they belong is. After all, what is true of the whole (collective) is not necessarily true of its parts. This is why I proffer my more nuanced account of collective moral responsibility that suggests that a collective is, normatively speaking, responsible for a wrongdoing to the extent that each of its members are responsible in their various and respective capacities. This account respects the differences between senses and degrees of responsibility that accrue between members of a collective. In turn, it can accommodate the intuition that morally justified political violence against, say, the U.S., ought not to be aimed at those who are innocent, or far more innocent than those directly responsible for whatever justified the violent response. Concerning PCR, I disclaim any intention to deal with (i), (v)-(vi) in this chapter. Instead, I will try to solve a limited number of questions regarding (ii)-(iv). Among the most important matters here are whether or not (ii)-(iv) are (independently) necessary conditions of collective moral responsibility, whether or not a conglomerate can act or omit to act intentionally, voluntarily, or knowingly, and whether or not a conglomerate does act in such ways. Let us consider each of these important matters in turn. DEFENDING THE ANALYSIS Are (ii)-(iv) jointly or independently necessary conditions of collective responsibility? This is an important question in that one might argue that intentional, voluntary, and epistemic action are required for individual liability, yet deny that such action is required for collective liability. Now it might be objected that PCR wrongly construes collective responsibility in terms of what constitutes individual responsibility. For example, Virginia Held argues that “It is not clear … that the best way to decide about corporate responsibility is by adopting the criteria for individual personal responsibility to corporations. We might well need to analyze

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corporate responsibility on its own terms.”12 Perhaps, moreover, Held is correct in claiming that … we cannot get by deduction from such judgments as “the corporation did X ” or “corporation C is responsible for X,” to judgments about individual responsibility. From judgments about collective entities, nothing follows logically about what any members of such a collective did or is responsible for. We have to know about the internal structure of the collectivity, and about the roles and activities of its individual members, to assign responsibility to individuals for what corporations do and are responsible for.13 Held’s arguments for such a view about collective responsibility are the following. First, she argues that If it makes sense to say that the corporation “should have known” and hence can be “held responsible,” perhaps we should conclude directly what this means for corporations, without the detour of analyzing what it means to say of individual persons that they “should have known,” and then applying this to a corporation.14 She continues to argue that For the corporation to be responsible, we may have to suppose the outcome was such that the corporation “could have done other than it did” in some sense. But establishing this may be quite different for corporations than it is for individual persons.15 Moreover, Held claims that What to think about corporate intention is complex and difficult. Corporate intention may well be very different from personal intention, and yet it may make perfectly good sense to 12

Virginia Held, “Corporations, Persons, and Responsibility,” in Hugh Curtler, Editor, Shame, Responsibility, and the Corporation (New York: Haven, 1986), p. 164. 13 Held, “Corporations, Persons, and Responsibility,” p. 164. 14 Held, “Corporations, Persons, and Responsibility,” p. 165. 15 Held, “Corporations, Persons, and Responsibility,” pp. 166-67.

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speak of a corporation intentionally doing something, or having an intention to do something.16 It is noteworthy, however, that (in light of Held’s previous three statements) her own claim that “‘Responsibility’ may be something that is quite different for corporations than it is for individual persons”17 is dubious. For not only does Held not explicate precisely how collective and individual responsibility differ, Held’s own claims seem to favor an analysis of individual and collective liability by way of the same conditions. For Held’s “should have known,” “could have done other than it did,” and “intentionally doing something” criteria are congruent with the fundamentally collectivist analysis of collective knowledge, voluntariness and intentionality, respectively. Thus it seems misleading, if not false, for Held to argue that collective and individual responsibility ought to be analyzed differently. And absent some good reason for construing individual and collective responsibility in quite different terms, there is at least prima facie reason to construe the basic conditions of each similarly. For how else ought collective responsibility to be analyzed if not in terms of intentional, voluntary and epistemic action? And what is the reason for thinking that collective responsibility ought to be analyzed in terms other than these? Held’s own statements, then, seem to indicate a basic agreement with the analysis of collective responsibility in terms of intentional, voluntary and epistemic action. Thus to the extent that a collective satisfies the conditions set forth in PCR, then it is a plausible candidate for moral liability ascriptions. It is possible for certain collectives (namely, highly organized conglomerates such as nations and corporations) to satisfy such conditions. However, I believe there are empirical factors that tend to undermine any claim to the effect that such collectives do in fact typically satisfy such conditions (at least in a strong sense). Consider three related problems with such a claim: the Problem of Collective Intentional Action, the Problem of Collective Voluntariness, and the Problem of Collective Knowledge. Each of these problems makes it difficult to justifiably say that a certain necessary condition for liability is satisfied by even the most highly organized collectives. Let us consider each of these problems in turn. A collective (intentional) action is an action the subject of which is a collective intentional agent. A collective behavior is a doing or behavior that is the result of a collective, though not the result of its intentions. A collective

16 17

Held, “Corporations, Persons, and Responsibility,” p. 166. Held, “Corporations, Persons, and Responsibility,” p. 161.

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action is caused by the beliefs and desires (wants) of the collective itself,18 whether or not such beliefs and desires can be accounted for or explained in individualist terms. Although species of collective action include “shared cooperative activity” involving as few as two parties,19 I am concerned with whether or not it is justified to ascribe intentional action to conglomerates of a numerically larger sort such as (large) nations and (large) corporations such that they might qualify as agents capable of fulfilling the mens rea requirement of legal liability. If such conglomerates are not intentional agents, then they are not proper subjects of responsibility attributions. Necessary, but perhaps insufficient, conditions of collective intentional action, failures to act, or attempts to act include: official representatives of the collective engaging in a valid rule-governed, goal-oriented (putatively collective), decision-making procedure designed to “act” (or not act, as the case may be) for the conglomerate. This procedure should permit a conglomerate to admit and expel members at will according to its valid rule system. This affords the conglomerate the freedom to determine the boundaries of its own membership. Moreover, such a goal-oriented, decision-making procedure must be recognized by the official rule system of that conglomerate, be it a corporate or national charter, a legal system, etc. Thus if a conglomerate has a ruledefined, goal-oriented, decision-making procedure, then it can be said to have the capacity to do things (or refrain from doing them, or attempt them, as the case may be). But doing things and acting intentionally are quite different. For a conglomerate’s doings to be plausibly construed as actions it is essential that that conglomerate act intentionally. So if the rule system of the conglomerate eventuates in a decision by official representatives of that conglomerate, and if that decision is an action which is caused by the wants and beliefs of that conglomerate (Assuming the plausibility of the fundamentals of Alvin Goldman’s theory of human action), then that conglomerate may justifiably be said to have acted (as a secondary agent) intentionally. Moreover, if the balance of reason supports that conglomerate’s being held liable to sanctions as a result of the action, omission, or attempt, then it is justified to ascribe moral liability to that conglomerate for that action, omission or attempt. 18

This is a Goldmanian account of collective action based on the analysis of human (individual) action of Alvin I. Goldman [For suggestive remarks about whether or not collectives are intentional agents, see Alvin I. Goldman, A Theory of Human Action (Princeton: Princeton University Press, 1970), p. 226. For a helpful discussion of the plausibility of collective beliefs, desires and intentionality in light of Daniel Dennett’s “intentional stance,” see Austen Clark, “Beliefs and Desires Incorporated,” The Journal of Philosophy, XCI (1994), pp. 404-25]. 19 Michael Bratman, “Shared Cooperative Activity,” The Philosophical Review, 101 (1992), pp. 327-41; Michael Bratman, “Shared Intention,” Ethics, 104 (1993), pp. 97-113; Michael Bratman, “Responsibility and Planning,” The Journal of Ethics, 1 (1997), pp. 27-43.

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David Copp argues that a theory of collectives must be compatible with the claim that collectives can and do perform actions.20 He goes on to argue that “collectives are moral agents” (a moral agent is an entity to which intentional agency can plausibly be ascribed, and where the content of one’s action is moral).21 I agree with Copp that certain collectives, namely conglomerates such as nations and corporations that have rule-governed and highly structured decision-making capacities, can be (restructured to qualify as) intentional agents. However, there are difficulties, which face any claim to the effect that such collectives commonly do act intentionally such that they might qualify as moral agents. If one necessary condition of moral liability is that the party is an intentional agent, then it is important to ask whether or not conglomerates are plausible candidates for ascriptions of intentional agency, including omissions and attempts to act. It might be thought that conglomerates do not act intentionally, and for two reasons. First, they do not act intentionally as individual humans often do. Instead, individual constituents of the conglomerate act on its behalf. Another reason why it might be thought that collectives do not act intentionally is that, it might be argued, it is possible to reduce ascriptions of collective “agency” to attributions of individual agency in congruence with recognized rule systems22– without loss of cognitive meaning. This sort of reasoning would lead one to adopt some individualistic version of moral responsibility. For if ascriptions of collective “agency” are problematic, so are attributions of collective moral responsibility since moral liability requires intentional action by or on behalf of the morally liable agent. It seems clear that aggregates do not act intentionally because they do not function according to a recognized formal or informal rule system. Raimo Tuomela, however, argues that even crowds and rioters can properly be said to act: Crowds … can be said to act in virtue of their members’ actions … Th us in a riot the members of the collective typically perform their destructive actions as members of the collective without acting on its behalf. So we are here dealing with groups without much or any structure (and divisions of 20

David Copp, “What Collectives Are: Agency, Individualism and Legal Theory,” Dialogue, 23 (1984), p. 250. 21 Copp, “What Collectives Are: Agency, Individualism and Legal Theory,” p. 268. 22 Such collective rule systems may be enacted formally, as in a national or corporate charter, or informally, as when the rules of the system are unwritten but understood and abided by members of the collective (as in the case of an academic association or society such as the American Philosophical Association).

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tasks and activities), … with respect to the goals and interests of the group.23 The difficulty with Tuomela’s position is that rioters and aggregates such as crowds altogether lack common goals and interests, though their respective members can and do possess goals and interests. Rioters and crowds are aggregates, and aggregates are simply a loose collection of individual human persons. It seems, then, that such collectives are not plausible candidates for intentional action attributions. But perhaps certain other sorts of collectives (namely, those of the conglomerate type) can (though not necessarily do) act intentionally. In fact, nations and corporations act, though not in a primary way. They are secondary agents. A primary agent is one who has the capacity to act on her own, intentionally. A secondary agent, as I noted earlier, is one for whom another acts according to a legal or moral rule system, intentionally. In the case of secondary agency, both the one on behalf of whom the action is performed and the one performing the action “in her name” are intentional agents, but in different respects. The secondary agent must have the capacity to have the action carried out according to her beliefs and desires. The one acting “in her name” must be capable of performing “her action” such that her own doings are caused by her wants and beliefs. For example, an attorney acts on behalf of (or “in the name of ”) her clients, and states, corporations, and even nations have attorneys. This makes at least some conglomerates secondary agents to the extent that those who properly represent their putative aims and purposes (according to an official rule system). Moreover, there seems to be no conceptual barrier to construing secondary agents as intentional ones. This means that if it is possible to reduce the language of collective action to that of individual action, this poses no logical problem for the justifiedness of collective agency ascriptions.24 In light of this consideration, it might be objected that to deny the very possibility of collective moral responsibility fails to take into account the fact that some conglomerates, such as corporations, do act intentionally via their

23 24

Raimo Tuomela, “Actions By Collectives,” Philosophical Perspectives, 3 (1989), p. 476. Copp writes, “A collective, one might say, could not have any ‘immediate impact’ on the world, but can only have impact ‘through’ the actions of persons. Alleged actions of collectives can always be explained ultimately in terms of the actions of persons. The question here, of course, is why should we regard this as showing that collectives do not act, rather than merely as showing how their actions can ultimately be explained?” [See David Copp, “Collective Actions and Secondary Actions,” American Philosophical Quarterly, 16 (1979), p. 178].

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respective Corporate Internal Decision Structures.25 These structures are official regulations concerning the way in which the corporation should operate.26 Now to this line of argument it might be replied that there is no doubt that nations and corporations (and other highly organized collectives) often behave (without intention) according to official rules of their respective systems. But it is unclear that behavior resulting from such decision-making is the result of the intentionality of the conglomerates themselves, or whether it is the consequence of the intentionality of certain powerful decision-makers in those collectives.27 What the first objection needs is an independent argument adequately supporting the claim that such collectives do in fact exhibit intentional agency. Against this reply it might be argued, as Copp does, that some collectives such as nations (in signing treaties) act “for a reason,” which is sufficient for a collective’s acting intentionally.28 However, this counter does not suffice as an answer to the previous query. For what is questioned concerning collective intentionality also arises at the level of collective “reasons.” That is, how does one know whether or not it is the collective itself which “acts for a reason,” or whether or not it is merely a certain powerful individual representative or member of that collective (or group of them) who “acts for a reason?” Furthermore, the plausibility of this notion of what is sufficient for intentional action is contingent on the plausibility of G. E. M. Anscombe’s theory of intentionality.29 Thus it requires an independent defence of Anscombe’s overall theory. However, if we assume as I do, that intentional action is that which is caused by the beliefs and desires of the agent,30 then the Anscombian view of intentional agency (as acting for a reason) is not clearly warranted. This means that even if collectives such as nations and corporations can and do act “for a reason,” it is not obvious that this is sufficient for collective intentional action. 25 26 27

28 29

30

Larry May, The Morality of Groups (Notre Dame: University of Notre Dame Press, 1987), pp. 65f. Peter A. French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984), Chapter 4. This point against French’s argument for the moral responsibility of some corporations is found in Corlett, “Corporate Responsibility and Punishment,” p. 4 (For a more recent assessment of French’s theory of collective responsibility, see Corlett, “Corporate Punishment and Responsibility,” pp. 86-100). This argument counts also against Larry May’s argument that the key to corporate intentionality lies in the redescriptions of actions of corporate-individuals into acts of corporations themselves (See May, The Morality of Groups, pp. 65f.). Copp, “Collective Actions and Secondary Actions,” p. 178. G. E. M. Anscombe, Intention (Ithaca: Cornell University Press, 1969). For a critical assessment of Anscombe’s idea of intention, see Cora Diamond and Jenny Teichman, Editors, Intention and Intentionality: Essays in Honour of G. E. M. Anscombe (Ithaca: Cornell University Press, 1979). Goldman, A Theory of Human Action, p. 71.

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Nor will it do to argue, as does Copp, that some collectives in fact act as secondary agents:31 If a corporation’s attorneys successfully defend that corporation against all suits brought against it for its alleged corporate wrongdoing, then it is not misleading to say that the corporation vindicated itself in the midst of such charges. But even if Feinberg is incorrect in arguing that this line is misleading,32 and even if it does make some sense to say that the corporation vindicated itself from the said charges levelled against it, it does not necessarily follow from this that what the corporation did constitutes an action. At best it is a doing or a doing-related event. Actions entail intentionality, doings do not. And Copp’s point, even if well-taken, requires an independent argument to show that what a conglomerate does amounts to an action, i.e., that what it does is caused by its own wants and beliefs, and not merely the wants and beliefs of, say, certain powerful individuals of that conglomerate. For only then can such a collective hope to satisfy the conditions of being the subject of justified retrospective liability ascriptions.33 Another attempt to rescue the notion of actual collective intentional agency argues that collective intentional agency supervenes on individual intentional agency. The argument states: “actions by collectives supervene on the actions of the operative members of the collective.”34 This view may be construed as a response to my previous point requiring an argument for the claim that collectives have their own wants and desires requisite for intentional agency. Tuomela argues that “I accept that collectives may be said to have wants and beliefs and to act for a reason, the concepts for these mental states seem to acquire their meanings basically (or at least to a great extent) from the individual case.”35 Moreover, he argues, the actions of a collective supervene on the actions and joint actions performed by its members or representatives, and this involves two claims. First, whenever the collective does something, it does it via some actions of its members. Secondly, suitable actions by the members or representatives of the collective will (conventionally, legally, etc.) determine the collective’s action. Tuomela intends his view to apply to both organized and unorganized collectives (or to what I refer to as “conglomerates” 31

Copp, “Collective Actions and Secondary Actions,” p. 178. Feinberg, Doing and Deserving, p. 227. 33 John Ladd argues that there is a “logical” way to distinguish collective actions from those of its constituents, especially in highly organized collectives [See John Ladd, “Morality and the Ideal of Rationality in Formal Organizations,” The Monist, 54 (1970), pp. 492-96]. However, this logical distinction is blurred in the actual world of collective decision-making where it is often difficult to distinguish between a conglomerate and its constituents as intentional or as teleological (goal-oriented) agents. 34 Tuomela, “Actions By Collectives,” p. 494. 35 Raimo Tuomela, “Collective Action, Supervenience, and Constitution,” Synthese, 80 (1989), p. 243. 32

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and “aggregates”).36 Thus, Tuomela argues, the properties of collectives–such as intention, belief, desire–are “embodied in” and “determined by” the properties of individual members or representatives of that collective. However, Tuomela’s position is problematic. For he begs a crucial question pertaining to the problem of collective agency: Do collectives act intentionally, do their own beliefs and wants cause their actions? As Tuomela himself admits, he assumes that collectives have the intentional properties of belief and desire. But the moral responsibility individualist demands that collective intentionality be proven by independent argumentation, and this requires the establishing of collective beliefs and desires that cause a collective’s doings, forming a collective action. And this holds true whether or not collectives are construed as primary agents or as secondary agents. As Max Weber writes, “Social action is not identical either with the similar actions of many persons or with actions influenced by other persons.”37 Even as a secondary agent, a collective must have the capacity to believe and desire such that members or representatives may act for it, in its name. Tuomela’s argument for collective action is based on his analysis of “weintentions.”38 But for his argument to succeed in showing that collectives act intentionally, it must be successfully argued that such collectives also have “we-beliefs”39 and “we-wants” (or “we-desires”) which can and do somehow causally generate a collective’s doings and “convert” them into actions.40 Thus it is still unclear whether or not conglomerates as a class of entities commonly act intentionally. In turn, it is not clear that they are (typically) legitimate candidates for moral liability ascriptions.41 But even if a solid case could be made for the claim that some conglomerates are commonly intentional agents, it is doubtful that the typical nation or corporation is a responsible agent. The reason for this is that collective intentionality is at best only a necessary condition of collective responsibility. Significant levels of collective voluntariness is also needed, at least under 36 37 38 39 40 41

Tuomela, “Collective Action, Supervenience, and Constitution,” pp. 254-55. Max Weber, The Theory of Social and Economic Organizations, A. M. Henderson and Talcott Parsons, Translators (New York: The Free Press, 1947), p. 113. Raimo Tuomela, “We Will Do It: An Analysis of Group-Intentions,” Philosophy and Phenomenological Research, 60 (1991), pp. 249-77. The plausibility of collective belief attributions is considered below. It is assumed, of course, that the Goldmanian notion of human action is an adequate model for collective intentional action. It might be argued that collectives themselves need not act intentionally for collective intentional action ascriptions to be justified. Instead, one might argue, collectives are intentional agents to the extent that their members share an intention. However, this point assumes the plausibility of the idea of the intersubjectivity of intentions, a notion that is itself problematic [See Wilfred Sellars, Science and Metaphysics (London: Routledge & Kegan Paul, 1968), pp. 217f.].

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statutory legislation requiring that the defendant act voluntarily, i.e., satisfy the actus reus condition. If, as Harry G. Frankfurt argues of individual moral agents, having a higherorder volition is necessary for acting freely and sufficient for moral responsibility,42 then, I would argue, conglomerates must have the capacity for having such volitions if they are to be seen as plausible candidates for moral liability attributions. And this holds true even if conglomerates are viewed as secondary agents. There seems to be insufficiently good reason to think that Frankfurt’s ideas on moral responsibility here are not fruitfully applicable to some legal contexts of responsibility. One might argue that the sometimes highly sophisticated and complex goaloriented decision-making structures of certain conglomerates like democratic nations and corporations are indicative of a kind of higher-order cognition. For in such processes, certain choices are weighed and balanced against others, where in the end a higher-level decision is reached between competing lowerlevel alternative desires. This implies that some collectives do act freely and thus are morally responsible agents. But this line of reasoning runs into the same trouble which arose in regard to intentional agency. How does one know whether the putatively higher-order volition or metamental ascent which is present in such conglomerates is that of the conglomerates themselves, or merely that of certain powerful individuals acting within the rules of the conglomerate’s decision-making structure? If the former is true, then it seems justified to ascribe higher-order volitional action to some collectives. But if the latter is true, then it is unclear to what extent, if any, collectives are volitional agents. What is required by the responsibility collectivist is an independent argument rendering plausible the claim that conglomerates are volitional agents in the requisite sense. Thus there seem to be at least two skeptical concerns with the position that collectives are indeed responsible agents, normatively speaking. The first is that it is unclear that the intentionality present in conglomerate activities is the intentionality of the conglomerate itself (conceived of in the “strange entity” sense). Second, it is difficult to understand how to separate conglomerate 42

Harry G. Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988). See Keith Lehrer, Metamind (Oxford: Oxford University Press, 1990) and “Freedom, Preference, and Autonomy,” The Journal of Ethics, 1 (1997), pp. 3-25, for a competing higher-order or “metamental” compatibilist theory of freedom. For discussions of freedom and moral responsibility, see John Martin Fischer, Editor, Moral Responsibility (Ithaca: Cornell University Press, 1986); John Martin Fischer, The Metaphysics of Free Will (London: Blackwell, 1994); John Martin Fischer, “Responsibility, Control, and Omissions,” The Journal of Ethics, 1 (1997), pp. 45-64; John Martin Fischer and Mark Ravizza, Editors, Perspective on Moral Responsibility (Ithaca: Cornell University Press, 1993). See also The Journal of Ethics, 3:4 (1999); 4:4 (2000).

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voluntariness from the voluntariness of certain powerful decision-makers in the conglomerate. But even if collective intentionality and voluntariness obtained in a given circumstance, collective moral responsibility would not accrue unless some significant measure of collective knowledge also obtained therein. To the extent that is a condition the satisfying of which is crucial for moral and legal liability, it is unjustified, normally, to attribute such liability to collectives. I say “normally” because there are cases where a moral agent’s ignorance does not exculpate.43 However, this point is not inconsistent with the fact that collectives are not clearly epistemic agents, at least in a sense that qualifies them as agents that act knowingly. To the extent that collectives are not clearly epistemic agents, they are not obviously liable ones. Concerning collective belief and truth (belief and truth are normally considered to be conditions of human prepositional knowledge), Gilbert writes that “there is no obvious reason to think that group beliefs in general have a high probability of truth, or that they are likely to be superior in this respect to the beliefs of individuals.”44 More specifically, there is the “Problem of Social Epistemic Reliability.” This is a problem for collective knowledge attributions. There are at least three empirical problems with the claim that collectives such as conglomerates are plausible candidates for knowledge or belief acquisition based on collective decision-making, rendering problematic any collectivist account of social knowledge, which is based on the reliability of collective decision-making. Collectives can adversely effect the decisions of individual cognizers in at least three ways, which question the reliability of collective decision-making: by the group polarization effect, by pressure toward group consensus, or by deindividuation.45 The Problem of Social Epistemic Reliability is a species of the Problem of Collective Knowledge, and it poses a difficulty not only for a conglomerate’s satisfying the collective knowledge condition, it also poses a challenge to the collective intentionality condition in that intentional action is caused (in part) by the agent’s beliefs. Thus there exist three widespread difficulties with any claim that group knowledge or justified belief arrived at on the basis of group decision-making is likely. For this reason, I argue that conglomerates typically do not act as 43

Holly Smith, “Culpable Ignorance,” The Philosophical Review, 92 (1983), pp. 543-71. Margaret Gilbert, “Modelling Collective Belief,” Synthese, 73 (1987), p. 198. 45 For an account of the difficulties of collective knowledge see, J. Angelo Corlett, “Social Epistemology and Social Cognition,” Social Epistemology, 5 (1991), pp. 140f. This constitutes part of my reply to Frederick Schmitt’s critical comment (see note 11) on J. Angelo Corlett, “Epistemology, Psychology, and Goldman,” Social Epistemology, 5 (1991), pp. 91-100 [Also see J. Angelo Corlett, “Goldman and the Foundations of Social Epistemology,” Argumentation, 8 (1994), pp. 145-56; and J. Angelo Corlett, Analyzing Social Knowledge (Totowa: Rowman and Littlefield Publishers, 1996), Chapters 2-3.]. 44

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epistemic agents. This does not, however, deny the possible epistemic status of some conglomerates. The upshot of the Problem of Social Epistemic Reliability is that there is good reason to doubt the plausibility of group beliefs being reliably produced by a collective decision-making process. If collective knowledge depends in part on collective belief (and assuming, as many contemporary analytical epistemologists argue,46 that belief is a necessary condition of knowledge), and if justified collective responsibility ascriptions are contingent on there being collective knowledge, then collective moral responsibility attributions are dubious to the extent that collective knowledge and belief are doubtful. So even if Gilbert is correct in arguing that some attributions of beliefs to certain collectives as “plural subjects” is justified or reasonable,47 it would not follow that such collectives are epistemic subjects in the requisite sense of their acting knowingly. However, collective knowledge is a necessary condition of at least some kinds of crimes, and of moral responsibility in general. Perhaps collectives of the conglomerate type can be restructured to satisfy the basic conditions such that they qualify as both morally and legally responsible agents. It is unclear, then, that it is justified to ascribe intentional action, voluntariness, and knowledge (or belief) to conglomerates such as nations and corporations. Again, I do not deny the possible epistemic and even moral status of conglomerates. It is not that conglomerates such as nations and corporations cannot ever satisfy the conditions of justified collective moral liability ascriptions. Rather, it is that, given a certain prevalence of a social cognitive nature, it is unclear that such conditions do (commonly) obtain when it comes to epistemic agency. In sum, it is not that no collective ever satisfies to some meaningful extent the conditions of collective moral responsibility. In fact, certain groups of political, corporate (and otherwise business) and educational leadership serve as examples of those who often make decisions as a collective. For instance, United States Supreme Court Justices make decisions that clearly satisfy such conditions, as do members of the U.S. Congress, corporate Boards of Directors, university Boards of Regents, university and faculty senates, departments, etc., each make decisions that seem to more or less make their members more or less morally responsible for the outcomes of such decisions. What is doubted, however, is whether or not significantly larger groups, such as the U.S. citizenry as a whole, are morally responsible for, say, what its duly elected 46

For example, see Roderick Chisholm, Theory of Knowledge, Third Edition (Englewood Cliffs: Prentice-Hall, 1989); Alvin I. Goldman, Epistemology and Cognition (Cambridge: Harvard University Press, 1986); Keith Lehrer, Theory of Knowledge, Second Edition (Boulder: Westview Press, 2000); John Pollock, Contemporary Theories of Knowledge (Totowa: Rowman and Littlefield Publishers, 1986). 47 Margaret Gilbert, On Social Facts (Princeton: Princeton University Press, 1989).

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representatives do “in its name.” One reason why this is doubtful is that the U.S. citizenry is quite often rather ignorant of many crucial details of various foreign and domestic policies and activities done “in its name,” making it quite problematic to hold that the U.S. citizenry supports its government knowingly, or even intentionally. Nonetheless, certain sub-groups such as those mentioned within U.S. society seem to on a regular basis constitute much smaller collectives that qualify as morally responsible agents. For they quite typically act knowingly, voluntarily and intentionally, exerting their power to effect change in politics, business, education, etc. Now that we have an analysis of collective responsibility, it is important to begin to see how it might be workable within a reasonably just legal system. I now turn to the task of showing how this concept of collective responsibility might be applicable to law. More specifically, in the next chapter, an analysis of corporate (retrospective liability) responsibility is set forth and defended, one that ought to serve as the foundation for corporate legal responsibility, punishment and compensation for wrongful harms caused by corporations. In Chapter 9, possible collective responsibility in the form of the state is explored in terms of whether or not the U.S. owes reparations to Native Americans as the result of the genocidal acts the former committed against the latter in unjustly taking their lands by force or fraud.

CHAPTER 8 CORPORATE RESPONSIBILITY AND PUNISHMENT Corporate1 wrongdoing abounds, whether it is the Union Carbide disaster in Bhopal, India which killed thousands of people and harmed thousands of others, the destruction of the Amazon rainforest by global corporate, political and other interests, or whether it is the Exxon oil spill in Prince William Sound, Alaska which permanently and adversely effected that environment as well as the economic viability of local companies (and workers) the successes of which (and whom) are contingent on the condition of that environment. Many ask just who or what is responsible (liable) for these and other untoward events or states of affairs of similar magnitude, demanding that those guilty of such harmful wrongdoings be punished. There is little question that these and certain other wrongful harms are corporate ones, e.g., they are at least partially and significantly caused not only by corporate-individuals, but by the corporations themselves (i.e., the corporations qua collectives, or what I shall refer to as “corporate-collectives”). And this is true whether or not, as some have argued,2 corporations are moral persons. But even if corporations are moral persons, it does not follow straightaway from this that they are morally responsible (liable) agents. Moreover, even if corporations are morally responsible agents, it would not be obvious that such entities are punishable agents in the sense that they might be forced by the courts to pay compensation for their wrongful actions, inaction, or attempted actions. For one can be a moral person, i.e., act with intention, knowledge, and even voluntarily, yet not qualify as a genuinely morally responsible agent. Additionally, one can be a morally responsible agent, yet not be justifiably punishable. This is because one might act without one's being guilty and at fault.3 In United States common law, there is no liability responsibility of corporations and associations. However, statutory law makes certain provisions that hold corporate-collectives liable for specific wrongdoings. Under such laws, the conduct giving rise to corporate-collective liability must be performed by a corporate-individual acting on behalf of the corporation and within the 1 2

3

Here, as elsewhere in this book, I am concerned with private profit-making corporations, not public or non-profit ones. Peter French, “The Corporation as a Moral Person,” American Philosophical Quarterly, 16 (1979), pp. 205-15; Collective and Corporate Responsibility (New York: Columbia University Press, 1984), pp. 31-47. For an account of an agent’s being “at fault,” see Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), Chapter 8.

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scope of her duties as a corporate-individual. Such corporate-collective responsibility also obtains in cases of respondeat superior. But under the Model Penal Code, a corporate-collective may be guilty of a criminal offence to the extent that the offence consists of a failure to discharge a specific duty imposed by law on the corporate-collective, or to the extent that the offence is defined by a law where a legislative purpose to impose responsibility on corporations is plain, or to the extent that the offence was “authorized, requested, commanded, performed or recklessly tolerated” by the Board of Directors or some other high-level executive or managerial agent of the corporate-collective who acted within her scope of office within the corporate-collective. As international law is in developmental stages due in part to the relatively recent advent of corporate-collective legislation, it is important to begin to come to firmer grips with some of the complexities of corporate-collective responsibility and punishment. Along these lines, what is needed is a clear analysis of the conditions under which a corporation as a collective is justifiably punished. This requires an analysis of the conditions of corporatecollective moral responsibility. Although the general conditions of collective moral responsibility were set forth and defended in the previous chapter, this chapter shall explore some of the ways in which corporations might qualify, or be made to qualify, as responsible agents for legal purposes. Once the normative conditions of corporate-collective responsibility are explored, a theory of (justified) corporate-collective punishment is needed as an exploratory corrective to current U.S. legal means of “punishing” corporations and their agents guilty of significantly harmful wrongdoing. A theory of corporatecollective punishment must address the problems of the nature and function of corporate-collective punishment, its justification and methods. Each of these matters is given attention in this chapter.

CORPORATE RESPONSIBILITY There are at least two opposing views of the meaningfulness of statements of corporate-collective responsibility. One such view is methodological individualism, which simply denies the meaningfulness of such statements. The second position is corporate-collectivism, which affirms the meaningfulness of corporate-collective property attributions. While much has been written on the issue of collective ontology and the sense of collectivist language, I will attempt to shed some new light on this issue by drawing from some crucial information and arguments from semantic theory and the philosophy of language.

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MODELS OF CORPORATE RESPONSIBILITY Methodological Individualism. There are those who would argue that corporate-collective punishment is unjustified because corporate-collective responsibility ascriptions are unjustified or unreasonable. Corporate-collective responsibility attributions are not justified in that statements about corporatecollective responsibility are reducible to those of responsible individual agents within the corporation.4 From this, it is argued, it follows that corporatecollective responsibility talk is meaningless. There are, of course, various versions of methodological individualism. However, I am concerned with its reductionist version. Precisely what does the methodological individualist mean when she argues that corporate-collective responsibility statements are reducible to those of corporate-individual moral responsibility?5 I take it that “reducible” means something like linguistically reducible or redescribable in terms of. In other words, the methodological individualist argues that all statements of corporatecollective responsibility are linguistically redescribable in terms of those corporate individuals who are morally responsible for something. But what does this mean? “Linguistic reducibility” means, I take it, that corporatecollective responsibility statements are redescribable, without loss of cognitive meaning, in terms of corporate-individual responsibility statements. But notice what is being argued by the methodological (reductionist) individualist. She is claiming that all statements of corporate-collective 4

Descriptions of methodological individualism are found in D. E. Cooper, “Collective Responsibility,” Philosophy, 43 (1968), pp. 258-68; J. Angelo Corlett, “Collective Punishment and Public Policy,” Journal of Business Ethics, 11 (1992), pp. 211-12; and Michael J. Zimmerman, “Sharing Responsibility,” American Philosophical Quarterly, 22 (1985), pp. 115-22. Zimmerman attributes a methodological individualism to Kurt Baier, “Guilt and Responsibility,” in Peter A. French, Editor, Individual and Collective Responsibility (New York: Schenkman Publishing Company, 1972), pp. 37-61. In Collective and Corporate Responsibility (New York: Columbia University Press, 1984), Peter French attributes this position to Karl Popper, F. A. Hayek, and J. W. N. Watkins, respectively (pp. 2f.). Larry May ascribes methodological individualism to Watkins [Larry May, The Morality of Groups (Notre Dame: University of Notre Dame Press, 1987), pp. 14f. For an , assessment of May s book, see J. Angelo Corlett, “Review of Larry May, The Morality of Groups,” Journal of Business Ethics, 8 (1989), pp. 772, 792, 816]. A most illuminating discussion of methodological individualism is found in Margaret Gilbert, On Social Facts (Princeton: Princeton University Press, 1989), pp. 427-36. 5 The following argument is a revised version of an argument articulated in J. Angelo Corlett, Analyzing Social Knowledge (Totowa: Rowman and Littlefield, 1996), pp. 120-22; “Collective Punishment” and “Collective Responsibility” in R. Edward Freeman and Patricia H. Werhane, Editors, Dictionary of Business Ethics (London: Blackwell Publishers, 1997), pp. 117-25.

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responsibility are linguistically redescribable, without loss of cognitive meaning, to statements of corporate-individual responsibility. Yet for methodological individualism to succeed it must be shown that corporatecollective responsibility ascriptions are unreasonable or unjustified. But from the supposition that corporate-collective responsibility statements are completely redescribable in terms of corporate-individual responsibility, it does not logically follow that corporate-collective responsibility ascriptions are unreasonable or unjustified. The reason for this is because the successful redescription of corporatecollective responsibility statements provides one with an identity relation between the corporate-collective statements on the one hand, and the corporateindividual ones on the other. This means that the set of corporate-collective responsibility statements being redescribed or “reduced” is logically equivalent to the set of corporate-individual statements that redescribe it. Given Gottlob Frege’s law of the substitutivity of co-referential terms or expressions in propositional attitude contexts,6 equivalent expressions retain truth and are substitutable for one another in any propositional attitude context. Thus the belief (or proposition attitude) that “the Exxon Corporation is responsible (liable) for the oil spill in Prince William Sound and ought to be severely punished with impunity” is indeed reducible to and redescribable in terms of the responsibility and punishability of certain corporate-individuals of the Exxon Corporation at the time of the disaster (Perhaps in terms of Exxon’s President at the time of the disaster, as well as certain members of the Board of Directors, and other higher-level managers who served the Exxon Corporation at the time of the decisions which “caused” the incident, etc.). But this hardly shows that corporate-collective responsibility ascriptions are unreasonable or unjustified. The point here is that the linguistic reducibility of corporatecollective statements does not effect the elimination of the sense or meaningfulness of such language. For if the methodological individualist reduction preserves truth (and sense), then both the corporate-collective and the corporate-individual statements about responsibility share the same truth value. It would appear, moreover, that the methodological individualist is in fact committed to the very meanings of the statements she seeks to eliminate or render senseless!

6

Frege’s law is that “If a declarative sentence S has the very same cognitive information content as a declarative sentence S’, then S is informative (“contains an extension of our knowledge” if and only if S’ is (does)” [Nathan Salmon, Frege’s Puzzle (Cambridge: The MIT Press, 1986), p. 57].

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Corporate-Collectivism. Given the previous discussion, it appears that some version of corporate-collectivism (even if not an ontological version7) is plausible. For whatever might render meaningless corporate-collectivist talk, it is surely not the plausibility of linguistic reduction of it to individualist language. Yet the failure of reductionism to render meaningless talk of corporate-collective responsibility is insufficient to infer that the information content of corporate-collective responsibility talk is indeed meaningful. Substance must be provided for claims such as “The Exxon Corporation is responsible for the oil spill which forever ruined Prince William Sound.” Precisely what might be meant by such a claim? What are some of the conditions that, if satisfied, would genuinely make a corporate-collective responsible for a wrongful act, event, or state of affairs?

ANALYZING CORPORATE RESPONSIBILITY Having in Chapter 7 provided an analysis of the conditions of collective responsibility, I shall now turn to the task of applying some of that general analysis to the case of corporate-collectives. The basic aim in doing so is to determine philosophically under what conditions it is legitimate to construe corporate-collectives guilty of wrongdoing as punishable agents under the criminal law.

CORPORATE INTENTIONALITY One condition of corporate-collective responsibility is that those officially working “for” the corporation act intentionally in regards to the wrongdoing. As we saw in Chapter 7 with collectives of the conglomerate type, for an agent8 to act intentionally, she must act according to her beliefs, wants, and desires.9 To be sure, there are degrees to which agents within a corporate-collective might be said to act intentionally and liably concerning a wrongdoing. One might do so in a strong sense, such as when a higher-level manager or the Board of Directors act or omit to act in such a way so as to become a contributory cause of the untoward event, act or state of affairs. There is also a weak sense of intentionality, whereby those in lower-level managerial positions act or omit to act as contributory causes of the wrongdoing.

7

8 9

Ontological versions of holism hold that there are irreducible aspects of collectives, and that collectives exist as real entities “over and above” their respective individual constituent members. I do not use the term “agent” here in one of its legal senses. Alvin I. Goldman, A Theory of Human Action (Princeton: Princeton University Press, 1970).

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The case for corporate-collective intentionality has been set forth and defended in various ways.10 But the way the typical corporation in the U.S. is organized, few corporate-individuals act intentionally. Yet a corporatecollective’s acting intentionally is crucial for it’s being legitimately ascribed moral liability. Thus the plausibility of corporate-collective moral liability ascriptions is contingent on each corporate-individual’s possessing significant power to act intentionally within that corporate structure. As things stand, most corporateindividuals in large corporations are custodians, secretaries, etc., who have no recognized capacity to act intentionally when it comes to decisions which might have a serious impact on how things are done in the corporation. Even though many such employees have a sense of loyalty to their respective corporations, this does not suffice for holding such employees liable for corporate harmful wrongdoings. Yet to hold their corporate-collectives liable for such harmful wrongdoings often adversely effects such powerless employees in profound ways. I argue that corporate-collective liability ascriptions are justified to the extent that each and every corporate-individual member of the corporatecollective has significant power to act intentionally in relation to the specific wrongdoing in question. This is a summativist conception of collective responsibility in that the degree to which a corporate-collective is morally responsible for, say, a wrongful act is the extent to which each and every one of its members serves as a meaningfully contributory cause of it. This might well require the restructuring of the typical U.S.-based corporation, which is currently structured along the lines of a hierarchical model of organization. It might very well imply that to legitimately hold corporate-collectives morally liable for wrongdoings, such entities must resemble something akin to a democratically organized structure.11 For within such a structure, corporatecollectives will be more likely to provide each and every corporate-individual with sufficient power to intentionally effect change within the organization in order to make corporate-collective liability ascriptions less problematic. Under such conditions, it would make much better sense to say of the Exxon Corporation

10

11

French, Collective and Corporate Responsibility, Chapters 3-5, 12; May, The Morality of Groups, pp. 65-9. For criticisms of these arguments, see J. Angelo Corlett, “Corporate Responsibility and Punishment,” Public Affairs Quarterly, 2 (1988), pp. 2-3; Victor C. K. Tam, “May on Corporate Responsibility and Punishment,” Business & Professional Ethics Journal, 8 (1990), pp. 71f. For more on organizational structures, see Paul Hersey and Kenneth H. Blanchard, Management of Organizational Behavior: Utilizing Human Resources, Third Edition (Englewood Cliffs: Prentice-Hall, 1977); Daniel Katz and Robert L. Kahn, The Social Psychology of Organizations (New York: John Wiley & Sons, Inc., 1966).

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that it (e.g., the corporate-individuals of the Exxon Corporation) is (are) morally liable for the oil spill that destroyed Prince William Sound. There are at least two different ways in which a corporate structure might be democratized: representatively or directly. When a corporation is democratized in a representative manner, a corporation’s top managers are elected by its employees to represent the employees on matters of institutional obligations, rights, etc. However, representative corporate democracy provides the employees with insufficient opportunities to significantly determine corporate policy which in turn effect employees’ activities.12 Thus directly democratic corporate structures are preferred over less direct ones insofar as the empowerment of all members of the corporation is concerned. This might mean that “some form of codetermination” of corporate policy, “in which boards of directors contain in equal numbers representatives of employees of nonemployee investors,” is preferable to representative corporate democracy.13 But there is more to corporate-collective intentional agency (action or omission) than the empowerment of employees. What is also required is a Publicity Condition that would clearly state to each and every corporateindividual that each and every one of them will be held accountable (either personally or as a corporate agent) for corporate wrongful acts to the extent that she was an intentional agent concerning them. Generally, no such communication is made to corporate employees. So it is far from obvious that (in their assuming a position in a corporation) employees willingly or intentionally assume liability for some other corporate-individual’s action or omission. It is important, then, that the Publicity Condition is satisfied for corporate-collective liability ascriptions to be plausible. If both a restructuring of U.S.-based corporations is effected and the empowering of each and every corporate-individual within such corporatecollectives, then it would make much better sense to say of an organized, decision-making corporation that it can be legitimately held liable for its wrongs so long as the Publicity Condition obtains.

CORPORATE VOLUNTARINESS However, corporate-collective intentionality is not the only condition requisite for legitimate attributions of corporate-collective responsibility. For it is possible that a corporation is democratically structured for intentional action (or inaction, as the case may be), yet lack a crucial capacity for voluntariness that would render it non-responsible for an untoward event.

12 13

Christopher McMahon, “Managerial Authority,” Ethics, 100 (1989), p. 52. McMahon, “Managerial Authority,” p. 53.

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What does it mean to say that a corporation is a voluntary agent? At the very least, it means that the corporation “acts freely.”14 This means it is sufficient that a corporation have the capacity to have a higher-order volition concerning an action, event or state of affairs. In turn, this means that it would be able to “really want” to do what it does, even if it lacks the ability to do otherwise. But acting freely, if it is a condition at all, is but a sufficient condition of voluntariness. And some would argue that the ability to do otherwise is a necessary condition of freedom.15 In any case, it is clear that in general voluntariness is necessary for an agent’s being legitimately held liable for wrongdoing. And corporate-collective responsibility requires voluntariness which in turn requires at least either the corporate capacity to act freely or the corporate ability to do otherwise.

CORPORATE KNOWLEDGE Not only are corporate-collective intentionality and voluntariness required for corporate-collective responsibility, so too is corporate-collective epistemic action. What this means is that a corporation, in order to qualify as a liable agent concerning a certain untoward event or state of affairs, must have acted knowingly. Acting knowingly involves more than an agent’s merely believing that such and such is the case in regards to a certain policy and its possible outcomes. It involves, among other things, that agent’s being justified in believing certain things about a policy enacted by the agent. Moreover, it involves that agent’s duty to reflect on and consider various alternative actions or policies. In short, it involves critical reflection on the part of the agent. The question is one of whether corporations are the kinds of agents that qualify as epistemic agents that act knowingly. The answer to this question seems to be contingent, at least in part, on the extent to which the corporation is directly democratic, solidary, etc. What is clear is that the capacity to act , knowingly is requisite for a corporation s being legitimately ascribed liability.

CORPORATE GUILT AND FAULT But even if a corporation acts intentionally, voluntarily and knowingly, there are cases in which these conditions do not jointly suffice for our ascribing to it liability. Consider the Schmexxon Corporation, an oil conglomerate with the 14

For an analysis of acting freely, see Harry G. Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988), and Chapter 2 above. 15 There are higher-order compatibilists who argue that the ability to do otherwise is a necessary condition of freedom [Keith Lehrer, Metamind (Oxford: Oxford University Press, 1991)], and there are incompatibilists who arrive at the same conclusion [Peter van Inwagen, An Essay on Free Will (Oxford: Clarendon Press, 1983)].

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same strength of assets as the Exxon Corporation, except that Schmexxon is directly democratically structured, acts with intent, voluntariness and knowledge to transport oil by way of Prince William Sound. And, just as with Exxon, a Schmexxon tanker spills thousands of gallons of crude oil into the Sound. Even though Schmexxon (unlike Exxon) takes precautions well beyond what is required by law and industry standards, and above and beyond what any competing corporation has even considered taking, there was a spill. But it is discovered that the spill was caused by a natural disaster of some sort (say, an earthquake’s sending the tanker crashing into a reef ), not the result of human error. So even though Schmexxon acted intentionally, voluntarily, and knowingly in shipping the oil through the Sound, it is not morally liable for the oil spill, though it might be held “strictly liable” by the law for a variety of reasons. The example of Schmexxon demonstrates that additional requirements must be satisfied by even democratized collectively liable agents, namely, guilt and fault. Normatively speaking, a guilty agent must be “at fault” in doing X for that agent to be liable for X. So it is for corporations. Since Schmexxon cannot reasonably be deemed at fault for the oil spill in question (because it was caused by a natural disaster), it cannot be held liable for it. Again, this does not imply that Schmexxon cannot be held legally liable for the oil spill. For considerations of social utility might suggest that there is good reason to hold corporations in the oil transport industry strictly (legally) liable for oil spills. Although a retributivist would likely balk at the imposition of strict liability where there is no contributory fault, strict liability is nonetheless an option in the law. In any case, corporate-collective fault must obtain in order for the corporation to be legitimately construed as being liable for the disaster, normatively speaking. Thus we have an analysis, however incomplete, of the nature of corporate liability, one that serves as at least a partial foundation to a working legal concept of liability for corporations. This analysis may serve as part of the basis for the moral justification of corporate-collective punishment.

CORPORATE-COLLECTIVE PUNISHMENT The above conditions are requirements of corporate-collective moral liability. Since corporate-collective moral liability is a requirement of corporate-collective punishment, the conditions requisite for corporate-collective moral liability are also required for corporate-collective punishment. But what is corporate-collective punishment? How might it be justified? What is a proper kind of corporatecollective punishment?

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THE NATURE OF CORPORATE-COLLECTIVE PUNISHMENT Consistent with the Rawlsian conception of the nature of punishment noted in Chapter 4, punishment is the attachment of legal penalties to the violation of legal rules. It “must involve pain or other consequences normally considered unpleasant;” must be of an actual or supposed offender for her legal offence against legal rules; must be intentionally administered by humans other than the offender; and must be imposed and administered by an authority constituted by a legal system against which the offence is committed.16 Among the expressive functions of punishment are the communication of the community’s vindictive resentment of the wrongdoer for her offence(s), authoritative disavowal, symbolic non-acquiescence, vindication of the law, and absolving the innocent of guilt.17 I intentionally ignore the crime-tort distinction in U.S. law in order to open the door for a wider range of penalties of guilty corporations, especially those guilty of gross forms of wrongdoing. “Corporate-collective punishment” is, strictly speaking, an ambiguous expression. For on the one hand, it might refer to the punishment of corporateindividuals who are guilty of wrongdoing. On the other hand, it might mean the punishment of corporations themselves, qua collectives. It is in the latter sense of “corporate-collective punishment” that I use the expression, though I believe that the corporate veil of liability created, in the U.S. at least, to shield corporate officials from personal liability for their wrongful deeds qua corporate officials is quite morally unjustified. In cases where the faulty corporation has revenues insufficient to cover the losses of a duly imposed court-ordered sanction or punishment, those corporate-individuals most directly responsible for the wrongdoing for which the corporation is being forced to pay compensation should have to supplement corporate revenues with their own personal assets until the duly imposed fine is paid in full. This common sense notion of individual liability is quite reasonable in both corporate and non-corporate life, and it is clearly the burden of those supportive of the famed U.S. legal doctrine of limited liability to provide a justification for it on ethical grounds. Absent such moral justification, the practice ought to be abandoned in U.S. corporation law as soon as possible for the sake of justice and fairness among all citizens both within the U.S., and beyond. No full-fledged moral agent enjoys a privileged moral position such that their wrongful actions, omissions, or attempted actions should be immune from genuine accountability.

16 17

H. L. A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), pp. 4-5. Feinberg, Doing and Deserving, Chapter 5.

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CORPORATE-COLLECTIVE PROPORTIONAL PUNISHMENT Given a retributivist justification of the institution of punishment and of the particular forms of punishment, it is of great importance that punishments “fit” the harms caused by the wrongdoings of corporations. And just as with the punishment of individuals, corporate-collective punishment faces the problem of proportionality. In many other sorts of cases, such as embezzlement or fraud, it is quite possible to extract from the corporation the amount of financial resources needed to sufficiently compensate the wronged party. However, the cases of the Exxon Corporation and Union Carbide, mentioned at the outset of this chapter, are prime instances of the enormous difficulties regarding proportional punishment. Precisely what sorts of punishments “fit” the harms resultant from the wrongs committed by these corporations? In the case of Union Carbide, over two thousand persons were killed as the result of what it did (or failed to do). Yet, as the law recognizes, the corporation has no soul to be damned, no body to be kicked! So how exacting can corporate-collective punishment be in such an instance? The problem of corporate-collective proportional punishment, then, stands as a challenge to society to institutionalize corporate-collective punishments so that they are neither overly harsh nor insufficiently hasty given the severity of the wrongdoing, all things considered. Let us take a look at some specific forms of corporate-collective punishment in order to see the extent to which they are viable and fair.

METHODS OF CORPORATE-COLLECTIVE PUNISHMENT Philosophers have not devoted sufficient time and energy to the development of ways in which corporate-collectives ought to be punished. The law seems to punish guilty corporate-collectives by either fining them, or by imposing compensation on certain of their corporate managers who are deemed by the courts as primarily responsible for wrongdoing. But surely the latter method of dealing with corporations, though helpful and sometimes warranted, is not a method of corporate-collective punishment. And simply fining guilty corporatecollectives is inadequate punishment for some wrongdoings. Are there alternative ways of punishing guilty corporations? If so, how legitimate are they? Adverse Publicity and Fi nes. It has been argued that a program of adverse publicity, sometimes to be coupled with fines, is an appropriate form of punishment for guilty corporations. This punishment would take the form of a court-ordered, institutionalized form of adverse publicity of the guilty

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corporation the cost of which is paid by the guilty corporate-collective by order of the state.18 A number of concerns have been raised about the way this sanction has been articulated. I would like to clarify the nature of these concerns, and provide replies on behalf of this method of corporate-collective punishment in order to assess the overall plausibility of adverse publicity as a method of punishing guilty corporations. First, it has been argued that adverse publicity might, if reasonably successful, contribute to the financial failure of the guilty corporation. In turn, it has been argued, this will adversely effect the economic condition of that corporation’s (presumably innocent) workers.19 However, to this concern it might be replied that only guilty corporate-collectives would be sentenced with adverse publicity. This implies that only those corporations that satisfy the conditions set forth above for corporate-collective punishment would qualify for adverse publicity. This means that there would under such conditions be no innocent employees. Or, it would mean that each corporate-individual would be given a fair notice because the Publicity Condition is satisfied. Thus there would be no corporate-individual who would not be forewarned about their potential liability in case of corporate wrongdoing. Assuming that such employees are voluntary agents in the senses discussed above, then they would not be innocent and the adverse publicity sanction would not pose a moral problem insofar as it effects such workers. Whereas this first concern with the adverse publicity sanction might pose a difficulty for situations in which nondemocratically structured guilty corporations are the targets of adverse publicity as punishment for wrongdoing, it seems to pose no significant problem for directly democratically structured ones where corporate-individuals are voluntary agents with significant power to effect corporate change. A second concern has been raised about the employment of an adverse publicity sanction. It is that a guilty corporation which is the target of such a sanction “might escape such financial loss and the immiseration of its workers by passing on the cost of the sanction to consumers in the form of higher prices.”20 However, this concern can be met by the founding of either a governmental or private agency which would serve to monitor the setting of a guilty corporation’s pricing of goods and services to the public. At the sentencing of the guilty corporation, the guidelines of adverse publicity can be determined, as well as that corporation ,s pricing index. Although the pricing index might be flexible and reviewed periodically for changes in the economy, 18 19 20

French, Corporate and Collective Responsibility, Chapter 14. J. Angelo Corlett, “French on Corporate Punishment: Some Problems,” Journal of Business Ethics, 7 (1988), p. 206. Corlett, “French on Corporate Punishment: Some Problems,” p. 206.

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both locally and globally, it should always reflect the fact that the corporation in question is to suffer significant loss (in proportion to its harmful wrongdoing of others) in the form of adverse publicity and its consequences. Thus the possibility of this agency to monitor the pricing of a guilty corporation’s goods and services seems to satisfy this second concern, and adverse publicity gains even more plausibility. A third concern with the adverse publicity sanction is that “the guilty corporation can simply, if it knows that it is economically advantageous for it to do so, recharter itself under another name, management, etc., in order to avoid the shame occasioned by the sanction.”21 Even though there are a number of ways in which a corporation can re-charter itself, it is unclear that it would be able to escape the pains of adverse publicity. This is especially true if the agents of publicity are ruthlessly dedicated to the comprehensive and accurate exposure of a guilty corporation’s harmful wrongdoings. If this is true, then it is hard to imagine how even the most inconspicuous corporate executive would escape the embarrassment and humiliation of the adverse publicity. In the attempt to recharter the guilty corporation, the adverse publicity agency would simply make public the guilty parties and continue to keep them in the public eye as they seek to be anonymous in one corporate-collective or another. In addition, each and every corporate-collective internationally might be sent an update, at the guilty corporation’s expense, of the agencies that have significant administrative ties to the guilty corporate-collective. Indeed, the possibility of a guilty corporation’s re-chartering itself does not seem to pose a challenge that is too difficult for a clever publicity agency to meet. Fourth, there is the concern that the agency implementing the sanction might have significant political, economic, etc., ties to the guilty corporation, and that this factor might minimize the effectiveness of the agency in adversely publicizing the guilty corporation.22 Of course, the possibility of corruption in such matters is always real. But this hardly counts against the viability of adverse publicity as a means of punishing guilty corporations. Surely other media organizations and agencies would stand a good chance at uncovering such a problem, exposing it, and demanding that the guilty corporation be punished by an agency other than one over which it has significant influence. The possibility of corruption in punishment should never deter us from striving to mete out punishment in the fairest manner. Finally, it has been argued that the adverse publicity sanction is in some cases an insufficient punishment for corporate-collective wrongdoings:

21 22

Corlett, “French on Corporate Punishment: Some Problems,” p. 206. Corlett, “French on Corporate Punishment: Some Problems,” pp. 206-07.

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It may indeed work in a situation where a corporation is found guilty of systematically abusing its workers, or where a corporation is found guilty of producing and selling, say, automobiles which malfunction slightly. ... However, the sanction is unable to effectively and sufficiently punish corporations that are found guilty of gross forms of negligence.23 Thus the charge is that to punish corporate-collectives with adverse publicity in cases of gross harmful wrongdoing or negligence is to ignore the fact that punishment must be proportionate to the wrongdoing or negligence. Thus in cases such as Union Carbide’s responsibility for the killing of thousands and harms of still more thousands, and Exxon’s destruction of Prince William Sound, adverse publicity can at best serve as one of perhaps a lengthy and harsh list of punishments such corporate-collectives must, morally speaking, experience. For no amount of adverse publicity can even begin to “fit” the wrongdoings of Union Carbide and Exxon, respectively. And to think that it can is to make a mockery of justice. Thus while the first four concerns with the adverse publicity sanction can be satisfied by a rather careful and diligent institutionalization of the sanction against guilty corporate-collectives, the sanction nevertheless has a limited scope. What is needed is a theory of corporate-collective punishment that would be able to address the problem of effectively and sufficiently punishing corporate-collectives guilty of gross forms of harmful wrongdoing or negligence. Seizure of Corporate Assets and Hard Treatment. If the problem of proportional punishment is taken seriously, then the adverse publicity of guilty corporate-collectives is inadequate to serve as a just punishment for gross forms of harmful wrongdoing by corporate-collectives such as the above-mentioned ones by Union Carbide and Exxon. But what else can be done to punish corporate-collectives that satisfy the conditions of moral liability for gross forms of harmful wrongdoing? It might be suggested that a corporate-collective “death penalty” be meted out to such guilty corporations. It might take the form of the court’s seizing of all corporate assets and shutting down the corporation. This would have dramatic effect on every corporate-individual, whether it is the secretary who loses a position with the corporation, or whether it is a leading stockholder who loses a large investment in it. Thus if an oil company was truly liable, in the above sense, for something like a Prince William Sound disaster, then it might simply be stripped of all assets, including (perhaps) the assets invested in 23

Corlett, “French on Corporate Punishment: Some Problems,” p. 207.

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subsidiary companies, in order to pay adequate remedies in proportion to damages caused by that corporation’s wrongdoing. Some would argue that such a measure is unfair to the extent that several jobs would be lost, and this would have a deleterious effect on the community. But this utilitarian concern fails to see that, given the above conditions of corporate-collective liability, no one is innocent in the corporation found guilty of such an untoward event or state of affairs. By definition, each person is part of the problem, and willingly bears some responsibility for it. Moreover, as stated above, this is an institutionalized matter to the extent that the Publicity Condition obtains in such cases. Once the Publicity Condition obtains, then the interests of “innocent” persons may be handled in the following way, as it is currently dealt with in U.S. forfeiture actions: simply establishing that she did not know about or participate in the illegal activity of the corporate-collective to which she belongs does not entitle a corporate-individual to avoid the pains of civil forfeiture of her interests in corporate-collective assets and property (Beenis v. Michigan, 1996). A utilitarian obsessed with fighting this proposal for corporate-collective punishment might argue that there are impractical consequences of such a program of punishment. One such result is that investors are not likely to invest in such corporations’ stock if it means that stockholder liability might eventuate in the loss of their investment. As other guilty corporations are punished in similar ways for significant wrongdoings, this would likely spell the demise of U.S. capitalism as we know it. Surely, there must be a better way to punish corporate-collectives guilty of such atrocities than to “put them to death.” If one does not want to be accused of being insensitive to practical contingencies of morally problematic capitalism, one might argue that the guilty corporation can remain active, but only under strict governmental supervision and restriction. For instance, it might be argued that corporations , liable for gross forms of wrongdoing ought to have their executive s salaries, stock returns, and employee wages “taxed” by the Internal Revenue Service such that the IRS simply takes from each one a certain percentage of money, say, 30% for life. This means that no matter where an employee moves or transfers to, no matter how many times an investor of the corporation transfers investment monies, no matter how executives might change positions to other companies, the Internal Revenue Service would strictly monitor each of them, and tax them for life according to the court-ordered plan. Moreover, that corporation would have placed on it a strictly monitored (though not necessarily fixed) price index for its goods and services. This eliminates the possibility of the guilty corporation raising prices for its goods and services in order to make a profit from its wrongdoing. It will pay the price, not by experiencing the corporate death penalty as described above, but rather by the

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ongoing and rigidly enforced taxation of it and its members earnings in perpetuity! It might be objected that, though the corporate-individuals of the guilty corporation deserve to bear the burden of punishment for the wrongdoing of which they were each a part, future generations of employees, managers, stockholders, etc., do not deserve the punishment. Thus the punishment should not be imposed in perpetuity. But if the result of the wrongdoing is sufficiently extreme, such as a major oil spill or the death of persons, then there is reason to think that such a punishment is overly lenient, rather than overly harsh. And to the extent that the Publicity Condition is satisfied, future generations of corporate-individuals would surely be made aware of what they face if they voluntarily chose to take a position with the guilty corporation. So if they choose to become affiliated with it, there seems to be no moral problem (that is, so long as employees are not forced to accept only the positions in which they serve). Of course, this economic sanction might very well be coupled with the adverse publicity sanction. If this is done, it might well eventuate in the dissolution of the corporation being punished. If so, then justice has taken its course with the imposition of a gradual death of the corporate offender guilty of death and destruction. One might wonder whether or not, say, capitalism as it functions in the U.S. could ever foster the restructuring of corporate-collectives in terms of the conditions of corporate-collective responsibility and punishment. That is, it might be argued that to restructure U.S.-based corporations along the lines requisite for corporate-collective intention, knowledge, voluntariness, etc., would be to remake them into less than capitalistic organizations. This would lead to the remaking of the entire capitalist society as it is played-out in the U.S.. Hence the impracticality of the proposal at hand. In reply to this concern, it might be argued that any plausible and morally legitimate economic system must, among other things, be sure that whatever social structures and organizations which exist therein function as those which have the capacity to be morally and legally responsible and punishable agents. For if there is no adequate system corporate-collective moral accountability, then there exists an element in the society which can harm persons without being legitimately penalized. This, I take it, is not permissible in the same way that it is impermissible to permit any other agent to wrongfully harm others without penalty. To the extent, then, that corporate-collectives get away with (go unpunished or are inadequately punished for) committing harmful wrongdoings in the U.S., significant injustices go unpunished and corrective justice is left undone. And any society that fails to correct this sort of difficulty is inadequate indeed! Thus it is imperative that corporate-collectives in the U.S. be structured or

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re-structured so that they can be holistically and legitimately held morally accountable and sufficiently punishable for their own harmful wrongdoings. This implies that to the extent that corporate-collectives in the U.S. are not required to be restructured so as to form entities that are morally liable and punishable for whatever harmful wrongdoings they commit (by action or omission, as the case may be), the economic structure of the U.S. is morally problematic. The problem of corporate-collective punishment and responsibility, then, serves as a significant moral challenge to U.S. capitalism. I have set forth and defended an analysis of corporate-collective punishment and responsibility, and have posed it as a moral challenge to U.S. capitalism. For any society that does not seek to place constraints on all harmful wrongdoers is irresponsible in at least a duty sense. Corporate-collectives are in principle the sorts of entities that can be structured (or re-structured) so as to qualify as responsible in a liability sense and punishable agents. And this is true regardless of the fact that at times their respective agents might be legitimately held accountable for corporate harmful wrongdoings. Having argued in favor of an analysis of collective responsibility which is workable within the law, especially pertaining to corporate harmful wrongdoing, it is important to see if the concept of collective responsibility might ground policies of reparations for, say, harmful wrongdoing by one state against another, or against its own constituents. The main case discussed is whether or not reparations are morally justified or even required of the U.S. for its crimes against Native American nations. It is at this juncture of the philosophical discussion where responsibility and punishment (as compensation) meet.

CHAPTER 9 COLLECTIVE WRONGDOING, REPARATIONS, AND NATIVE AMERICANS North American history is replete with accounts of atrocities being inflicted by members of one group on members of another. Some such examples include: the seizure by the French, the British, the Spanish, the Dutch (and later by the United States and Canadian) governments, respectively, of millions of acres of land inhabited by Native (North) Americans; the genocide (or attempt therein) of various Native Americans1 by the U.S. military at the order of, among others, former U.S. president Andrew Jackson; the enslavement of several Native Americans in the U.S., etc.2 These and other significant harms have found little or no justice in the form of reparations. This chapter seeks to clarify the nature of reparations and analyzes philosophically objections to policies of reparations to historically and seriously wronged groups with the primary focus being on the Native American experiences in the U.S..3 1

2

3

Similar points might well apply to Native Americans in Central and South America, and indigenous peoples of Australia. Indeed, Native Americans in (former) island nations of the Americas, for example, the Hawai’ian islands were victimized (accompanied in the end by threat of military force) by unjust takings by the U.S. and others [See Michael Dougherty, To Steal a Kingdom: Probing Hawai’ian History (Waimanalo: Island Style Press, 1992)]. That Hawai’ian culture was significantly affected by the intrusion of Europeans is noted in Martha Beckwith, Hawaiian Mythology (Honolulu: University of Hawai’i Press, 1976). William L. Anderson, Editor, Cherokee Removal (Athens: University of Georgia Press, 1991); Garrick Bailey and Roberta Glenn Bailey, A History of the Navajos (Santa Fe: School of American Research Press, 1986); Robert Berkhofer, Jr., Salvation and the Savage (New York: Atheneum, 1965); Dee Brown, Bury My Heart at Wounded Knee (New York: Henry Holt and Company, 1970); Angie Debo, A History of the Indians of the United States (Norman: University of Oklahoma Press, 1970); And Still the Waters Run (Norman: University of Oklahoma Press, 1989); John Ehle, Trail of Tears (New York: Anchor Books, 1988); Grant Foreman, Indian Removal (Norman: University of Oklahoma Press, 1932); Michael D. Green, The Politics of Indian Removal (Lincoln: University of Nebraska Press, 1982); Robert V. Remini, The Legacy of Andrew Jackson (Baton Rouge: Louisiana State University Press, 1988); David E. Stannard, American Holocaust: The Conquest of the New World (Oxford: Oxford University Press, 1992); Ian K. Steele, Warpaths (Oxford: Oxford University Press, 1994); Clifford E. Trafzer, The Kit Carsen Campaign (Norman: University of Oklahoma Press, 1982); Peter H. Wood, Gregory A. Waselkov and M. Thomas Hatley, Editors, Powhatan’s Mantle (Lincoln: University of Nebraska Press, 1989); Grace Steele Woodward, The Cherokees (Norman: University of Oklahoma Press, 1963). Other philosophers who have written on reparations, but concerning the African-American experience, include J. L. Cowan, “Inverse Discrimination,” Analysis, 33 (1972); Alan H. Goldman, “Reparations to Individuals or Groups?” Analysis, 35 (1975); Howard McGary, Race and Social Justice (London: Blackwell Publishers, 1999); James Nickel, “Should

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It is an embarrassing fact that major Western political philosophies by and large ignore (or, at best, give short shrift to) the claims of Native Americans4 to property.5 And given the importance of the concept of private property rights in historic and contemporary Western political philosophy,6 it is vital to delve into problems which, among other things, question who ought to be seen as having the overriding moral claim, interest or right to, say, the lands on which entire countries and their respective citizens reside, such as with the U.S.. For the moral legitimacy of a country, it is assumed, is contingent on at least the extent to which that country acquires justly the land on which it and its citizens reside. The problem of reparations to Native Americans raises queries concerning the fundamental moral legitimacy of the U.S.. For it challenges the moral basis of putative U.S. rights to lands that, it is assumed, are necessary for its economic and political survival.

AN ARGUMENT FOR REPARATIONS What are reparations? And are reparations to Native Americans by the U.S. government morally required? This project seeks to answer these and related questions as they concern the Native American lives and lands lost to the U.S. Reparations Be Made to Individuals or to Groups?” Analysis, 34 (1974); Roger A. Shiner, “Individuals, Groups, and Inverse Discrimination,” Analysis, 33 (1973); Philip Silvestri, “The Justification of Inverse Discrimination,” Analysis, 34 (1973); Paul W. Taylor, “Reverse Discrimination and Compensatory Justice,” Analysis, 33 (1973). The main philosophical work which focuses on reparations to Native Americans is David Lyons, “The New Indian Claims and Original Rights to Land,” Social Theory and Practice, 6 (1977), pp. 249-72. Other philosophers have written on the problem of reparations to Aboriginals in Australia [See Janna Thompson, “Land Rights and Aboriginal Sovereignty,” Australasian Journal of Philosophy, 68 (1990), pp. 313-29; John Bigelow, Robert Pargetter and Robert Young, “Land, Well-Being and Compensation,” Australasian Journal of Philosophy, 68 (1990), pp. 330-46]. More general philosophical treatments of reparations include J. Angelo Corlett, Race, Racism, and Reparations (Ithaca: Cornell University Press, 2003); “Review of Thompson, Taking Responsibility for the Past,” Philosophy in Review, forthcoming; “Ruminations on Reparations,” in Howard McGary, Editor, Reparations (Totowa: Rowman and Littlefield Publishers, forthcoming); Janna Thompson, Taking Responsibility for the Past (Cambridge: Polity, 2002). 4 I assume that Native Americans are indigenous peoples to North America, and that even if they are not so indigenous, that they acquired the lands on which they resided in North America in ways that did not violate significantly the Principle of Morally Just Acquisitions and Transfers, discussed below. 5 James Tully, “Aboriginal Property and Western Theory: Recovering a Middle Ground,” Social Philosophy & Policy, 11 (1994), p. 153. 6 A. John Simmons, “Original Acquisition Justifications of Private Property,” Social Philosophy & Policy, 11 (1994), pp. 63-84; Jules L. Coleman, “Corrective Justice and Property Rights,” Social Philosophy & Policy, 11 (1994), pp. 124-38; Gary Lawson, “Proving Ownership,” Social Philosophy & Policy, 11 (1994), pp. 139-52. It is assumed herein that the concept of property rights is itself an important part of a plausible political philosophy.

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by means of war (and other) crimes committed against various Native American nations by the U.S. government and its military with the aim, e.g., joint commitment, of manifest destiny in mind. Reparations, according to Black’s Law Dictionary,7 involve “the act of making amends for a wrong. …Compensation for an injury or a wrong, esp. for wartime damages or breach of an international obligation.” Reparations involve restitution, which is the “act of restoring … anything to its rightful owner; the act of making good or giving equivalent for any loss, damage or injury;8 and indemnification. … A person who has been unjustly enriched at the expense of another is required to make restitution to the other.”9 “Reparation can express sympathy, benevolence, and concern, but, in addition, it is always the acknowledgement of a past wrong, a ‘repayment of a debt,’ and hence, like an apology, the redressing of the moral balance or the restoring of the status quo ante culpum.10 Those receiving reparations are typically groups, though there seems to be no moral or logical preclusion to individuals receiving them. Often the evils perpetrated are such that there is no “just” or genuinely sufficient manner by which to rectify matters between the wrongdoer (or her descendants) and the party wronged (or her descendants). Reparative compensation is the main form of reparations. It seeks to rectify severe wrongs of the distant past by providing the wronged parties or their descendants a sum of money (often collected by general tax revenues11), property, etc., which might be (roughly) proportional to the harms experienced by them. Moreover, reparative compensation and punishment must always conform to the Principle of Proportional Compensation: Compensation for significant wrongdoing is always to be meted out in (albeit rough) proportion to the harms caused by the wrongdoing(s) committed. 7

Bryan A. Gerner, Editor in Chief, Black’s Law Dictionary, Seventh Edition (St. Paul: West Group, 1999). 8 “Reparation ‘sets things straight’ or ‘gives satisfaction’ … for redress of injury” (Feinberg, Doing and Deserving, pp. 74-5. 9 Note that nothing in this conception of reparations requires that the reparations be “paid” or rendered by the perpetrators of wrongdoing only [Compare the conception of reparations set forth in D. N. MacCormick, “The Obligation of Reparations,” Proceedings of the Aristotelian Society, LXXVIII (1977-78), p. 175]. Contrast this notion of reparations with one articulated by Bernard Boxill: “ … Part of what is part of the transgressor that what he is doing is required of him because of his prior error” [Bernard Boxill, “The Morality of Reparations,” in Reverse Discrimination, Barry R. Gross, Editor (New York: Prometheus Books, 1977), p. 274]. 10 Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970), p. 76. 11 Sanford Levinson, “Responsibility for Crimes of War,” Philosophy and Public Affairs, 2 (1973), p. 250.

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Given that the Principle of Proportional Compensation is congruent with the principles of proportional punishment stated and elucidated in Chapter 4, the concept of reparations as rectification for past wrongs is congruent with the principles of proportional punishment. Although reparations are for the most part a compensatory matter, they share much in common with some of the “expressive functions” of punishment articulated by Joel Feinberg.12 As mentioned in the previous chapter, Feinberg describes four expressive functions of punishment (“hard treatment”). Punishment involves “authoritative disavowal” of a society of a criminal act. It says publicly that the criminal had no right to act as she did, that she did not truly represent society’s best aims and aspirations in committing the criminal deed. Punishment also involves a society’s “symbolic non-acquiescence” or its speaking in the name of the people (when it is a democratic society) against the criminal’s wrongful harm. Punishment involves “vindication of the law” as a society goes on record by way of its statutes to reinforce the genuine standards of law. Finally, punishment “absolves the innocent” of blame for what a criminal does. Reparations, I argue, share with punishment these expressive features. Like punishment, reparations disavow the wrong(s) committed, and charge that the wrongdoers had no right to perform such evil(s). Reparations, like punishment, say publicly that wrongdoings do not represent society’s highest aims and aspirations. In democratic regimes, reparations speak in the name of the people against the harmful wrongdoings in question, and they uphold the genuine standards of law in the face of past failures of the legal system to carry out true justice. In addition, reparations alienate a reasonably just society from its corrupt past, absolving society of its historic evils.13 These are some of the specific expressive functions of reparations.14 Some of these expressive functions of reparations are articulated by Feinberg when he states (as already quoted, above) that “Reparation can express sympathy, benevolence, and concern, but, in addition, it is always the acknowledgment of a past wrong, a ‘repayment of a debt,’ and hence, like an apology, the redressing of the moral balance or the restoring of the status quo ante culpum.”15 12

Feinberg, Doing and Deserving , Chapter 5. For recent philosophical analyses of the concept of evil, see Joel Feinberg, Problems at the Roots of Law (Oxford: Oxford University Press, 2003), Chapter 6; J. Angelo Corlett, “Evil,” Analysis, 64 (2004), pp. 81-4. 14 That reparations also recognize the personhood of victims is argued in Mari Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” in Kimberle Crenshaw, Neil Gotanda, Gary Peller and Kendall Thomas, Editors, Critical Race Theory (New York: The New Press, 1995), p. 74. 15 Feinberg, Doing and Deserving, p. 76. 13

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More generally, the expressive feature of reparations is to make public society’s own liability concerning the wrongs it has wrought upon a group or individuals. It is to offer an unqualified and unambiguous apology to the wronged parties (or their successors) without presumption of forgiveness or mercy (See Chapter 6 for philosophical analyses of the concepts of forgiveness and apology). Moreover, it is to acknowledge, in a public way, the moral wrongness of the act(s) in question, and to never forget the act(s). For as George Santayana encourages, those who do not remember the errors of the past are doomed to repeat them. The expressive feature of reparations is articulated by Jeremy Waldron when he writes: “Quite apart from any attempt genuinely to compensate victims or offset their losses, reparations may symbolize a society’s understanding not to forget or deny that a particular injustice took place, and to respect and help sustain a dignified sense of identity-in-memory for the people affected.”16 Insofar as reparations have their expressive functions, they send messages to citizens (and to others, for that matter) which seek to build and strengthen social solidarity toward justice and fairness. In this way, the justification of reparations is forward-looking. Moreover, there are at least two sorts of arguments that might be given for reparations: end-state arguments and historical ones. A. John Simmons clarifies the difference between these kinds of reparations arguments: … Historical arguments maintain that whether or not a holding or set of holdings is just (that is, whether or not we are entitled to or have a moral right to our holdings) depends on the moral character of the history that produced the holdings. We must see how holdings actually came about in order to know who has a right to what. End-state arguments maintain that the justice of holdings (and our rights to them) depends not on how they came about, but rather on the moral character of the structure (or pattern) of the set of holdings of which they are a part.17 I provide the foundations of an historical argument for reparations to Native Americans, as well as an assessment of several objections to such an argument. Briefly, reparations can be supported on the ground that they truly respect the actions (inactions, or even attempted action, as the case may be) of history in the sense that they try to correct significant imbalances of power or fortune that result from undue force or intrusion, fraud, or other gross forms of harmful 16 17

Jeremy Waldron, “Superseding Historic Injustice,” Ethics, 103 (1992), p. 6. A. John Simmons, “Historical Rights and Fair Shares,” Law and Philosophy, 14 (1995), pp. 150-51.

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wrongdoing. Moreover, reparations disrespect as being morally arbitrary any statute of limitations pertaining to the kinds of cases in question.18 This is especially true where the extent of the facts of guilt, fault, harm and identity of the perpetrators and victims are unambiguous. Whether it is a crime occurring 40 or 400 years ago, justice requires that significant wrongdoings are compensated in manners that would do justice to the idea of proportional compensation for damages in cases where the perpetrator(s), victim(s) and damages are provable by current legal standards (beyond reasonable doubt, for example, in criminal cases, and by the preponderance of evidence in tort cases). With reparations, then, both the balance of human reason and history must be our twin and primary guides to the truth of whom owes what to whom, and why. For purposes of this chapter, it is assumed that the law ought to follow these guides. The argument for reparations to Native Americans insists that reparations ought to be made when a right has been infringed by way of significant injustice19 (In assessing the plausibility of precisely this sort of argument, David Lyons points out that it relies on the ideas of original acquisition and legitimate transfer of land20). Thus the justification for reparations is essentially backward-looking, though it might involve aspects of considerations that are forward-looking. The foregoing suggests the following Reparations Argument: (1) As much as is humanly possible, instances of clear and substantial historic rights violations against groups ought to be rectified by way of reparations; (2) The U.S. government has clearly committed substantial historic rights violations against millions of Native Americans;21 (3) Therefore, the historic rights violations of the U.S. government against Native Americans ought to be rectified by way of reparations, as much as humanly possible. The basis for (1) might be a desert-based (retributivist) one which insists that there is either a perfect duty or an imperfect duty to rectify past injustices of a substantial nature. Or, to the extent that it is humanly possible to rectify

18

Of course, this claim is unproblematic in cases involving murder, as the U.S. itself recognizes no legal statute of limitations in murder cases. 19 MacCormick, “The Obligation of Reparations,” p. 179. 20 Lyons, “The New Indian Claims and Original Rights to Land,” p. 252. Indeed, it is an historical, rather than an end-state, argument for reparative justice. 21 These acts amount to a series of intentional actions that were crimes, torts or contract violations.

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substantial harmful wrongs for which an offender is responsible, the offender ought to rectify the harmful wrongdoing.

OBJECTIONS TO THE REPARATIONS ARGUMENT, AND REPLIES If the Reparations Argument is plausible, then wherever there is significant injustice there is at least a prima facie reason to believe that such injustice deserves compensation or rectification. Moreover, where the facts of the guilt, fault, harm and identity of the perpetrators and victims are clear, reparations ought to be pursued for the sake of corrective justice.22 Hence, there is a presumptive case in favor of reparations to Native Americans by the U.S. government, given the substantial wrongs many Native Americans have experienced at the hands of the U.S.. Precisely what is the harm perpetrated against Native Americans? At the very least, it is the following. To the extent that Will Kymlicka is correct when he argues that cultural membership is crucial for self-respect,23 and to the extent that a Rawlsian liberalism is correct in arguing that cultural membership is a primary good,24 the particular cultural membership which is crucial to their self-respect was undermined for Native Americans by force and fraud. The genocidal campaigns against various Native American nations by the U.S. military serve as examples here. One specific instance of U.S. war crimes against the Lakota Sioux was the massacre by the U.S. Army at Wounded Knee, which in turn culminated in the retaliatory violence against the U.S. military at Little Big Horn. Examples of U.S. torts against Native Americans are the fraudulent takings of lands, often followed by the U.S. government’s refusal to honor its treaties made with various Native American nations. Yet for all of the several instances of unjustified violence of genocidal proportions and other crimes, torts and contract violations committed by the U.S. against various Native Americans, few, if any, apologies or reparations have been issued by the U.S. government. These are some reasons that form the presumptive case for

22

For a discussion of the concept of corrective justice that is helpful in the context of reparations, see Jules L. Coleman, “Corrective Justice and Wrongful Gain,” Journal of Legal Studies, 11 (1982), pp. 421-40. 23 Will Kymlicka, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989), p. 165. Discussions of Kymlicka’s argument are found in John Tomasi, “Kymlicka, Liberalism, and Respect for Cultural Minorities,” Ethics, 105 (1995), pp. 580-603; Robert Murray, “Liberalism, Culture, Aboriginal Rights,” Canadian Journal of Philosophy, 29 (1999), pp. 109-38. 24 John R. Danley, “Liberalism, Aboriginal Rights, and Cultural Minorities,” Philosophy and Public Affairs, 20 (1991), p. 172.

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reparations to Native Americans.25 But such a presumption can be overridden if it can be shown that considerations against such reparations outweigh the strength of the prima facie case for them where the instances in question are not “hard cases.”26 Hence it is important to consider the plausibility of various of the strongest objections to reparations to Native Americans: the Objection from Historical Complexity, the Objection to Collective Responsibility, the Objection from Inter-Nation Conquests, the Objections from Historical and Normative Progress, the Affirmative Action Objection, the No Native American Conception of Moral Rights Objection, the Objection from the Indeterminacy of Native American Identity, the Historical Reparations Objection, the Objection from Social Utility, the Religious Freedom Objection, the Acquired Rights Trumping Original Lands Rights Objection, the Supersession of Historic Injustice Objection, the Anti-Private Property Rights Objection, and the Counterfactual Objection. To the extent that such objections are defeasible, the presumptive case for such reparations gains strength, and the Reparations Argument gains plausibility.

THE OBJECTION FROM HISTORICAL COMPLEXITY Given the above understanding of the nature of reparations, are reparations to Native Americans by the U.S. government morally required? Ought the U.S. government to provide reparations to Native Americans? A number of arguments can be marshalled against the imposition of reparations, and they deserve close scrutiny. First, there is the Objection from Historical Complexity. This objection claims that history contains far too many and complex situations of conflict such that it would be impossible to figure out all of the injustices that would putatively require reparations. Where the perpetrators of the evils are dead and cannot be punished for their horrors it would be sheer dogmatic idealism to think that respecting rights requires or even permits the kind of complex legal casework that would rectify all past wrongs. To award reparations to the wronged party or her descendants would end up forcing innocent parties [perhaps the descendants of the wrongdoer(s)]

25

Another reason might concern factors of distributive justice: the continual failure or refusal of a government to recognize in the form of compensation its harms against some of its constituents often results in the social alienation and violence that erupt in society as a result (at least in part) of such non-recognition. For such non-recognition of a government’s harms leads many to believe that the government supports the status quo of what happened to the victims. 26 For a discussion of hard cases in the context of law, see Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), Chapter 4.

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to pay for what they themselves did not do.27 Among other things, the Objection from Historical Complexity seems to assume that past injustices should not forever burden future putatively “innocent” generations. 28 The Objection from Historical Complexity challenges (1) of the Reparations Argument, suggesting that there are some instances of historic injustice that ought not to be rectified by way of reparations. The Principle of Morally Just Acquisitions and Transfers. In response to this argument, it might be pointed out that the inability to figure out with precise accuracy all there is to know about a case which putatively involves reparations hardly prohibits a juridical system from awarding some measure of significant reparations where cases are clear (based on unambiguous historical records, for example). Even if it were true that a full-blown policy of reparations would involve reparations to Native Americans by not only the U.S. government, but by the governments of Spain, Portugal, England, France, the Netherlands, etc., and even if it proved overly difficult to figure out the extent to which each such government contributed to harms against Native Americans, this would hardly show that clear cases of U.S. harms to Native Americans ought not to be compensated by the U.S.. Moreover, though the parties to a putative case of reparations would involve those who themselves did no harm to the victims in question, such “innocent” parties who currently reside on or “own” lands that were once resided on by Native Americans are in violation of the Principle of Morally Just Acquisitions and Transfers: Whatever is acquired or transferred by morally just means is itself morally just; whatever is acquired or transferred by morally unjust means is itself morally unjust.29 27

28 29

A version of the Argument from Historical Complexity seems to be articulated by Loren Lomasky when he writes: “… It is undeniably the case that virtually all current holdings of property descend from a historical chain involving the usurpation of rights. It does not follow that those holdings are thereby rendered illegitimate, morally null and void” [Loren Lomasky, Persons, Rights, and the Moral Community (Oxford: Oxford University Press, 1987), p. 145]. A similar view is articulated, but not endorsed, in A. John Simmons, “Original Acquisition Justifications of Property,” Social Philosophy & Policy, 11 (1994), pp. 74-5. This assumption will be taken up in discussing the Objection to Collective Responsibility, below. This principle bears a keen resemblance to the principle of just acquisitions, transfers and rectification found in Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 150. However, the Principle of Morally Just Acquisitions and Transfers makes no particular theoretical commitments to the depths of Nozick’s entitlement theory or its implications. Writing on the recovery or repossession of stolen or lost property, Immanuel Kant argues that those who acquire such property have a responsibility to “investigate” the historical chain of acquisitions and transfers of the property, and if, unbeknownst to her, the property she deemed she purchased legitimately was the actual possession of another, then “ nothing is

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Basically, the intended meaning of this principle is that to the extent that property is acquired or transferred in a morally justified way (i.e., without force, fraud, etc.), the acquisition or transfer of that property carries with it a genuine moral claim or entitlement to occupy it without interference from others. To the extent that the Principle of Morally Just Acquisitions and Transfers is violated, there is no legitimate claim or entitlement to occupy the property being acquired or transferred. Thus the principle need not specify ownership rights to property. In this way, then, it is neutral concerning the matter of property rights of ownership between political liberals and Marxists. This point of clarification precludes a Marxist-style objection (addressed below) that reparations to Native Americans are not morally justified in that they are contingent on Native Americans having original land rights, which themselves are dubious on moral grounds. For the Principle of Morally Just Acquisitions and Transfers does not support reparations to Native Americans by the U.S. because Native Americans had property ownership rights to the lands, but because Native Americans had property sovereignty or occupancy rights therein. 30 Although the locutions “morally just” and “morally unjust” are somewhat vague, relatively clear cases of unjust acquisition or transfer, for instance, exist: when such acquisitions or transfers occur as the result of significant nonvoluntariness (the violent use of force, for example) on the part of those relinquishing property,31 when acquisitions or transfers involve fraud,32 or severe misunderstanding between principal parties.33 In the case of Native American lands (then a part of the U.S.) most of which were taken from them forcibly by the U.S. military at the direction of former U.S. president and Commander-in-Chief Andrew Jackson and other U.S. officials (many of which lands were encroached upon illegally by U.S. citizens or civilians), there is no left to the alleged new owner but to have enjoyed the use of it up to this moment as its possessor in good faith” [Immanuel Kant, The Metaphysical Elements of Justice, 302 in Kant, The Metaphysics of Morals, Mary Gregor, Translator and Editor (Cambridge: Cambridge University Press, 1996), p. 82]. 30 Note that the matter of property ownership is not at issue here. Rather, sovereignty over land, a notion consistent with Native American worldviews, is at issue. For more on property and sovereignty, see Thompson, “Land Rights and Aboriginal Sovereignty,” pp. 313-29. 31 For descriptions of examples of the taking of Native American lands by force and violence, see Debo, A History of the Indians of the United States, pp. 47, 87, 96, 118, 297, 304-05, 317, and 320. 32 For descriptions of examples of the taking of Native American lands by fraud, see Debo, A History of the Indians of the United States, pp. 89, 106, 118, 207, 261, 320-21, and 379. 33 For descriptions of examples of the taking of Native American lands by misunderstanding, deliberate or otherwise, see Debo, A History of the Indians of the United States, pp. 76, 190-91.

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question who the wrongdoer was (the U.S. government, along with its citizen trespassers) and who the harmed parties were (Native Americans of various nations). In other cases, Native Americans were believed to have “given away” their land to invaders, interpreted as such, presumably, because of the hospitality of the Native peoples toward the invaders. In such cases, the questions are not who is the guilty party and who was the victim, but precisely how ought the victims to be “reparated” for the harmful wrongdoings. In still other instances, such as our own, U.S. citizens have purchased in good faith lands from other non-Native peoples to which the former may not in fact have an overriding moral right. That a person purchased in good faith a stolen item in no way entitles him to that item, as even the law stipulates. She who is truly entitled to the item has a right to it, and that right must be respected by all who take seriously what morality requires. Note that this argument is not contingent on the status of well-being of either the perpetrators or the victims of the evils inflicted that might require reparations. For reparations are morally required even if, say, the U.S. and its citizens were not well-off and if Native Americans were indeed relatively better-off. Reparative justice does not depend on the ability of perpetrators of harmful wrongdoing to enrich their lives by inflicting harmful wrongdoings on others. It is concerned primarily with rectifying past injustices regardless of whether or not perpetrators have been enriched at all by their wrongdoings. Thus the attempt of the Objection from Historical Complexity to defeat (1) fails.

THE OBJECTION TO COLLECTIVE RESPONSIBILITY This raises the issue of collective moral retrospective liability responsibility34 of, say, the U.S. government for severe wrongs committed in its name or on its behalf against Native Americans. The Objection to Collective Responsibility challenges the morality of reparations to Native Americans on the grounds that it is problematic to hold the current U.S. government and its citizenry morally accountable for wrongs committed by previous generations of people who acted, failed or attempted to act, as the case may be, to harm Native Americans 34

For discussions of the concept of collective responsibility, see Chapter 7 of this book; Feinberg, Doing and Deserving, Chapter 8; French, Corporate and Collective Responsibility (New York: Columbia University Press, 1984); Responsibility Matters (Lawrence: University of Kansas Press, 1990); Virginia Held, “Can a Random Collection be Morally Responsible?” The Journal of Philosophy, 67 (1970), pp. 471-80; Virginia Held, “Corporations, Persons, and Responsibility,” in Hugh Curtler, Editor, Shame, Responsibility, and the Corporation (New York: Haven, 1986), pp. 159-81; Larry May, The Morality of Groups (Notre Dame: University of Notre Dame Press, 1987); Sharing Responsibility (Chicago: University of Chicago Press, 1992); Burleigh T. Wilkins, Terrorism and Collective Responsibility (London: Routledge, 1992).

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and on behalf of the U.S. government, its agencies, or on behalf of themselves as actual or putative U.S. citizens. Thus the Objection to Collective Responsibility challenges (2) of the Reparations Argument insofar as (2) seeks to hold the U.S. government responsible for certain substantial wrongs against Native Americans. However, the Objection to Collective Responsibility falls prey to at least two weaknesses. First, the fundamental documents which form at least the basis of U.S. government are still those which govern the U.S.. Even though the atrocities committed against Native Americans generations ago were not the direct responsibility of today’s U.S. citizens, the fact is that the U.S. government has persisted over time. And generations of the U.S. governmental representatives and citizens electing them are to some meaningful degree “jointly committed,” to use Margaret Gilbert’s category of collectively responsible action, to the “American way of life.” That a relatively small number of U.S. citizens have been and are vehemently opposed to much that is fundamental to U.S. politics, economics, culture, and so on, does not falsify the claim that most U.S. citizens are committed to whatever the American way of life amounts to. Nor does it make such dissenters immune, unless they are, say Native Americans, from being subject to pay, along with others, reparations to Native Americans for what the American way of life based on the joint purpose of manifest destiny did to harm, genocidally, Native Americans. Furthermore, it is plausible to think that when the U.S. Army and the U.S. government acted in committing genocidal acts against various Native American nations that they did so in such ways that the U.S. was collectively guilty, at fault, acting knowingly, intentionally and voluntarily to such extents that we are justified in inferring that they were both causally responsible and morally liable (culpable) for those harms committed by them against the Native American nations.35 Additionally, though legally speaking it is not required that a guilty party apologize to the victim(s) of its harmful wrongdoing(s), the extent of the harms committed by the U.S. government against various Native American nations would seem to suggest one. If this is true, then it would appear that both U.S. governmental (collective) feelings and expressions of guilt and remorse are suggested. That is, we would expect that the U.S. government would, in some official manner, express its genuine feelings of guilt and remorse to Native Americans [pursuant to (i)-(iv) of the conditions of genuine repentance, in 35

Feinberg argues that there is a kind of collective responsibility, namely vicarious responsibility, which derives from the process of authorization [See Feinberg, Doing and Deserving, p. 226]. Thus when Andrew Jackson, duly elected by the U.S. citizenry, commands the U.S. Army to conduct the policy of “Indian removal” even by violent force, vicarious responsibility accrues to the U.S. and its citizens. Presumably, such responsibility, insofar as it entails culpability, would accrue at least until adequate reparations are made to the various Native American nations that were victimized by the said policy and others akin to it.

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Chapter 5], publicly renouncing its history of racially motivated oppression and genocide against Native Americans and vowing that it never again occur. Of course, a clear record of governmental policies should reflect a support for such genuine feelings of guilt and remorse. Based on the considerations in Chapter 5, the U.S. government needs to, morally speaking, apologize to Native Americans for its responsibility for one of the worst holocausts in human history: the American Holocaust. Whether or not Native American nations (those that have survived) will forgive the U.S. is purely up to Native Americans, as it is clearly their moral prerogative to forgive. But since apology is necessary for the very possibility of genuine forgiveness, an apology in this case would seem to require a rather substantial policy of reparations to Native Americans by the U.S. government. Anything short of this would run afoul of (iii) of what is required for a genuine apology, and in turn, forgiveness. Recall from Chapter 5 that rectification is necessary for a genuine apology, which in turn is necessary for forgiveness. It is reasonable, then, to hold it (the U.S. government) accountable for its past wrongdoings, pending some adequate argumentation in support of the morality of a statute of limitations on trying and punishing or compensating such crimes. If it was just “discovered” that a corporation committed a gross wrongdoing (including murders) in 1900, would not justice dictate that the courts seek rectification in such a case, especially if that corporation is still in operation? The reasoning behind this might be either that the putatively guilty corporation is simply deserving of being forced to compensate some parties for the wrongdoing in question (a retributivist rationale) and/or that the corporation has gained an unfair advantage in committing such acts (a non-retributivist rationale). In either case, where matters are clear, past wrongs of such magnitude as what happened to many Native Americans require that justice be realized, and there appears to be no adequate reason why past wrongs against Native Americans by U.S. governmental representatives should not be treated in a similar manner as those in which we treat gross corporate wrongdoings that result from corporate representatives’ actions, inactions, or attempts.36 As for the individuals or aggregate mobs who committed theft, violent crimes, etc. against Native Americans, in some cases some criminals’ transfers of assets or fortunes can be traced to current U.S. citizens or institutions, thereby providing a source of reparations. Of course, one who inherits what has been acquired or transferred to her hardly deserves what she inherits if possession of it is in violation of the Principle of Morally Just Acquisitions and Transfers. A second problem with the Argument Against Collective Responsibility is that the Principle of Morally Just Acquisitions and Transfers renders irrelevant 36

For discussions of corporate responsibility, see J. Angelo Corlett, “Corporate Responsibility and Punishment,” Public Affairs Quarterly, 2 (1988), pp. 1-16; and the previous chapter of this book.

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the issue of whether or not the current U.S. government and its citizenry can legitimately be held accountable for the past injustices committed against Native Americans. And the principle does this in the following way: If, say, most or all of the lands currently occupied by the U.S. government and its citizens are in fact occupied in violation of the principle, then it matters not whether current occupants of those lands are actually liable for the illegitimate transfer of the lands. What truly matters here is whether or not the lands in question have indeed been transferred legitimately. Since most or all of them have not been legitimately transferred to current occupants, then no such occupants can have a legitimate and overriding moral claim to the lands they occupy. The problem of collective responsibility simply does not affect this fact. It is a red herring given the plausibility of the Principle of Morally Just Acquisitions and Transfers. This rebuttal to the Objection to Collective Responsibility relies on a “weak” form of compensation.37 The significance of these replies to the Objection to Collective Responsibility is that they provide a link between the U.S. government and many of the serious wrongs committed against Native Americans, satisfying the legal criteria of privity, standing and nexus, each of which is necessary to establish a legal case for reparations. Thus the Objection to Collective Responsibility fails to defeat (2) of the Reparations Argument.

THE OBJECTION FROM INTER-NATION CONQUESTS Related to the Objection from Historical Complexity is the Objection from Inter-Nation Conquests. This argument states that reparations to Native Americans are not warranted because some such peoples themselves are guilty of violating the Principle of Morally Just Acquisitions and Transfers, and against other Native Americans! A case in point, it might be argued, is the Lakota’s driving-off several Crow, Kiowa, and other Native American nations from land that was then considered to belong to or to be justifiably inhabited by the latter nations, respectively. Thus the historical complexity of the violations of the Principle of Morally Just Acquisitions and Transfers is of such a magnitude that it is unclear who is genuinely and morally entitled to the lands in question. The Objection from Inter-Nation Conquests challenges the assumption of the Reparations Argument that the Native Americans wronged by the U.S. government (and its citizens) are the rightful occupants to the territories in question. 37

For a distinction between weak and strong forms of compensation, see Bigelow, Pargetter and Young, “Land, Well-Being and Compensation,” pp. 336-37. Bigelow, Pargetter and Young argue for compensation in a strong sense as a reply to the Objection to Collective Responsibility.

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However, there are at least two replies to the Objection from Inter-Nation Conquests. First, only a rather small number of Native American nations engaged in conquest behavior.38 Even when the Lakota did engage in conquest of Native American lands, it did so after the European invaders had long since succeeded in pitting several Native American nations against each other as a way of eventually fulfilling manifest destiny.39 The majority of Native American nations were peaceful, and when some did engage in inter-nation violence, it was not, arguably, for purposes of conquering, but rather for reasons of retributive justice or in self-defence.40 Thus the most that can be said for the Objection from Inter-Nation Conquests is that where history is clear about which Native Americans violated the Principle of Morally Just Acquisitions and Transfers, only those Native peoples who did not violate this principle in their acquisition or transfer of land are plausible candidates for reparations. Of course, most Native Americans would qualify for reparations by this standard. Secondly, even if no existing Native Americans did qualify for reparations because of their violating the Principle of Morally Just Acquisitions and Transfers, it would not logically follow that anyone else would have a genuine and overriding moral claim to the lands of North America. This is true due to the widespread violation of the moral principle in question by the governments and explorers who preceded those of us who currently reside on the lands. Either some Native Americans have valid moral claims and/or interests sufficient to ground their respective moral rights to North American lands, or no subsequent non-Native American residents do, except for a possible few cases where a genuine transfer of land transpired between Native Americans and others.

THE OBJECTIONS FROM HISTORICAL AND NORMATIVE PROGRESS The Objection from Historical Progress states that groups experiencing harms at the hands (or weaponry) of others have in many cases triumphed over such problems. Examples here include several African Americans. There is, then, no need for reparations to Native Americans. As history progresses, so will the well-being of Native Americans. However, the Objection from Historical Progress suffers from the error of supposing that those who deserve reparations are somehow beyond the pale of reparative justice in that history itself “compensates,” in one way or another, 38

Debo, A History of the Indians of the United States, Chapter 1. Debo, A History of the Indians of the United States, pp. 67, 74. 40 Debo, A History of the Indians of the United States, Chapter 1. 39

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even severely wronged groups. This sort of fatalism runs counter to our moral intuitions about rights and justice. Justice should not wait for the wheels of historical inevitability to turn, especially since the doctrine of historical inevitability is in itself morally odious and unconvincing. A more sophisticated version of the Objection from Historical Progress is the Objection from Normative Progress . This objection holds that victims of severe wrongdoings of the distant past should simply rise above their respective circumstances that, though caused by others unjustly, can be overcome. The lives and messages of M. K. Gandhi and Martin Luther King, Jr., respectively, serve as grist for the mill of this argument, which sees reparations as a crutch for those who are too slothful to make their own ways in life, perhaps blaming others for their own shortcomings. So even if history is clear about many cases of injustice toward Native Americans, and even if it is untrue that those who experience evil at the hands of others do not succeed, reparations are not morally required in that a genuinely good life can and should be attained by such persons nonetheless. In r eply to the Objection from Normative Progress, it must be pointed out that it is rather excessively insensitive concerning the ways in which history influences humans as individuals and as groups. For the injustices experienced in the past clearly have some significant bearing on a person’s or group’s ability to realize virtue in the present and in the future. It is certainly important for the victims of wrongdoing to attempt to “get on with their lives” and not be overly concerned about the injustices they or their ancestors have experienced in the past. But this is a social psychological consideration; it hardly defeats any moral claim or entitlement to reparations. Furthermore, the abilities of members from different ethnic groups victimized by oppression might differ remarkably. For instance, while it may be true that African Americans have, as a group, made continual and rather impressive strides toward flourishing, Native Americans as an ethnic group (more precisely, as a set of sub-ethnic groups) have languished.41 The Objection from Normative Progress rather naïvely assumes that those who have experienced the most horrible forms of oppression ought to rise above it and get on with their lives, just as many African Americans have 41

I say “flourished” and “languished” because some might argue plausibly that African Americans have succeeded in a society that stripped them of what is most valuable in lives (their cultures) and hence cannot truly be said to flourish, while Native Americans, many of them, have decided to remain alienated from the society which is substantially responsible for the evils perpetrated against what is most important to Native Americans: their culture. For a discussion of why African Americans as a group have flourished while Native Americans have, by comparison, languished in U.S. society, see J. Angelo Corlett, “Surviving Evil: Jewish, African, and Native Americans,” Journal of Social Philosophy, 32 (2001), pp. 207-33; and Corlett, Race, Racism, and Reparations, Chapter 5.

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flourished in areas such as medicine, politics, business, education, athletics, music, entertainment, and so forth. However, there are good reasons that explain why African Americans can and do flourish in U.S. society, while Native Americans find it rather difficult to do so. While African Americans have had much or all of their original African heritage stripped from them during slavery, they were nonetheless able to create their own new heritage based on their experience as African Americans. As displaced people, African Americans were forced through acculturation to give up their former heritage as they were forced to become slaves on U.S. soil. But Native Americans still reside on (albeit small) sections of what was once their territory, and many see no need, nor do they have the desire, to adopt the ways of a people whose very values included the inflicting of evil on Native Americans. While African Americans found themselves being a part of a newly developing heritage of displaced survivors bent on succeeding in a new environment as unwilling foreigners, Native Americans as a class see themselves as having the greatest moral claim to the lands of North America as it was theirs in the first place. For African Americans, liberation from slavery, and later on, equal rights, were ways of gaining “improved” lifestyles that were in accord with the ways they were acculturated into the Christian religion. Moreover, slaves were often valued rather highly, even if as mere means to the end of a slaveholder’s profit, and they never had reason to think of themselves as having a legitimate moral claim to the land on which they resided either as slaves or as African Americans. For Native Americans, however, there was a genuine sense that they were invaded by hostile forces that sought to displace them in the name of European religion, values, etc. Native Americans were not deemed as being useful to the European invaders, especially given that Native Americans cherished, above all, their land and culture. Most Native Americans do not believe it would be honorable to concede their great cultures to those who took the land illegitimately, and who had values that would do to that land irreparable damage. Had the Native Americans been enslaved as were many Africans and stripped of their original culture,42 then one might expect that Native Americans would “flourish” in U.S. society. For an ethnic group that has been deprogrammed of its original culture and successfully reprogrammed into the culture of the dominant group is in general in a better sociological and psychological position to “succeed” in terms of what the dominant group deems valuable. But instead of “merely” being enslaved by the European invaders, which would have been evil enough, those Native Americans who were enslaved or deprogrammed and acculturated in “Indian Schools” were hunted 42

Many Native Americans were enslaved as such, as we read in Brown, Bury My Heart at Wounded Knee, pp. 2, 4, 14, 204; Debo, A History of the Indians in the United States, pp. 43, 47, 49-50, 67, 74, 77, 119, 162, 165, 269.

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like bison, the basic goal of which was, rather ironically, to make room for a society which declared that it respected the rights of all humans.43 Native American economic structures, many that took centuries to build and stabilize, were destroyed by the effects of the European invaders. It is no wonder that native peoples as a class languish, and that despite U.S. material “prosperity.”44 In light of these considerations, the Objection from Normative Progress hardly counts as a good reason to reject reparations to Native Americans.

THE AFFIRMATIVE ACTION OBJECTION There is another objection to reparations: the Affirmative Action Objection. This argument states that reparations are otiose given the existence of affirmative action in the hiring of underrepresented groups, typically, those that have been victimized by racial discrimination. Such legal support of historically wronged/underrepresented groups takes the form of affirmative action programs. With affirmative action programs in place, there is no need for reparations policies to Native Americans since Native Americans qualify for affirmative action programs. However, affirmative action legislation is designed to assist in the providing of equal opportunities in employment, education, etc., for Native Americans, African Americans, etc. Yet in the case of employment opportunities, it would seem that affirmative action serves as a cruel form of mockery when construed as compensation for the numerous and harsh civil rights violations of these groups by the U.S. government and its citizens. Moreover, if distributive justice is the reason for the grounding of affirmative action, then affirmative action cannot serve as a challenge to reparations. For the recipients of such programs earn the wages or salaries they receive. This can hardly be seen as a legitimate form of compensation for damages. Affirmative action programs, whatever

43

One of the most disappointing ironies of U. S. history is that the class of people who most boldly declared equality for all humans acted so inhumanely toward some of the most noble of humans. Moreover, the fact that the U.S. has yet to even apologize merely verbally or in writing only for such inhumane behavior sets it apart as being, in a genuine way, significantly more evil than most nations in history. 44 Let us also not forget the significance of linguistic complications that go toward explaining the difficulty of the Native American voices to be heard and respected by invaders. As N. Scott Momaday argues, “One of the most perplexing ironies of American history is the fact that the Indian has been effectively silenced by the intricacies of his own speech, as it were. Linguistic diversity has been a formidable barrier to Indian-white diplomacy” [See N. Scott Momaday, “Personal Reflections,” in The American Indian and the Problem of History, Calvin Martin, Editor (Oxford: Oxford University Press, 1987), p. 160].

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their legitimacy status, cannot and should not be construed as a form of reparations.45

THE NO NATIVE AMERICAN CONCEPTION OF MORAL RIGHTS OBJECTION Yet another objection to reparations, especially in the cases of Native American nations, is that the Native Americans had no conception of rights as entitlements to the lands in question. As John Locke argues, Native Americans lived in a state of nature and had no government that would adjudicate rights claims to land and other property.46 I shall refer to this as the No Native American Conception of Moral Rights Objection. It follows, according to this argument, that reparations to Native Americans are not required because lands were acquired from those who did not even believe in rights, especially land rights. Moreover, the objection continues, invaders acquired moral rights to at least some of the lands, though such rights may not have justified the violent and evil ways in which such lands were taken (This part of the objection is developed below in the “Acquired Rights Trumping Original Land Rights Objection”). The No Native American Conception of Moral Rights Objection is a complex one, and is aimed at specific kinds of cases of putative reparations, such as those said to accrue to Native Americans. In reply to this objection, it must be pointed out that it is a fallacy of reason to think that simply because someone does not believe that they possess X that they in fact do not have X. Many persons who do not enjoy the privilege (right?) of a good education often do not understand that they have certain rights. But it is hardly true that such persons do not have such rights, morally (and even legally) speaking. For they might simply be ignorant or fearful of claiming such rights, especially in the face of coercive force, propaganda, etc. Thus the argument that Native Americans should not be awarded reparations for past injustices due to the claim that Native Americans had no notion of rights misses the point. The real issue here is whether or not the balance of human reason requires that reparations be awarded to Native Americans.

45

A similar point is made in Boxill, “The Morality of Reparation,” p. 271; J. Angelo Corlett, “Latino Identity and Affirmative Action,” in Jorge Gracia and Pablo DeGreiff, Editors, Hispanics/Latinos in the United States (London: Routledge, 2000), pp. 223-34. For a novel philosophical analysis of affirmative action, see Corlett, Race, Racism, and Reparations, Chapters 6-7. 46 John Locke, The Second Treatise of Government (Indianapolis: Bobbs-Merrill, 1952), sections 14, 28, 30, 34, 36, 37, 41-3, 48-9, 108-09. For a helpful assessment of Locke’s views on the political status of Native Americans, see Tully, “Aboriginal Property and Western Theory: Recovering a Middle Ground,” pp. 158f.

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But even if it were true that the moral requirement of reparations to Native Americans is contingent on Native Americans many of whom held some concept of rights, one must ask which rights concept is required? Given that philosophers have not themselves settled on a singular notion of rights47 (Indeed, some doubt the very sense of rights talk itself!),48 it can hardly be argued that reparations to Native Americans are required only if there is a singular notion of rights among Native Americans. So it appears that the question here is whether or not Native Americans, or at least many of them, had some working idea of rights, especially rights to the lands on which they resided and that which in most cases was subsequently and forcibly taken from them. On this score, E. Pauline Johnson, a Mohawkan poet, writes: … Starved with a hollow hunger, we owe to you and your race. What have you left to us of land, what have you lett [sic] of game, What have you brought but evil, and curses since you came? How have you paid us for our game? How paid us for our land?… You say the cattle are not ours, your meat is not our meat; When you pay for the land you live in, we’ll pay for the meat we eat. Give back our land and our country, give back our herds of game; Give back the furs and the forests that were ours before you came;…49 But they forget we Indians owned the land From ocean unto ocean; that they stand 47

48 49

For a sample of some of the leading contemporary thinking about the nature, value and function of rights, see Joel Feinberg, Social Philosophy (Englewood Cliffs: Prentice Hall, 1973); Freedom & Fulfillment (Princeton: Princeton University Press, 1992); Will Kymlicka, Editor, The Rights of Minority Cultures (Oxford: Oxford University Press, 1995); Loren Lomasky, Persons, Rights, and the Moral Community (Oxford; Oxford University Press, 1987); L. W. Sumner, The Moral Foundations of Rights (Oxford: Oxford University Press, 1987); Judith J. Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990); Carl Wellman, A Theory of Rights (Totowa: Rowman and Littlefield, 1988); The Proliferation of Rights (Boulder: Westview Press, 1999). J. Waldron, Nonsense Upon Stilts: Bentham, Burke, and Marx on the Rights of Man (London: Methuen, 1987), p. 44. From “The Cattle Thief” in E. Pauline Johnson, Flint and Feather: The Complete Poems of E. Pauline Johnson (TEKAHIONWAKE) (Ontario: PaperJacks, 1972), pp. 13-4. Emphasis provided for the use of “our” and “ours.”

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Upon a soil that centuries agone Was our sole kingdom and our right alone. … By right, by birth we Indians own these lands, …50 Other Native Americans expressed notions of rights, in particular, rights held against invaders of their lands. Sitting Bull states that “What treaty that the whites have kept has the red man broken? Not one. What treaty that the white man ever made with us have they kept? Not one. Where are our lands? Where are our waters? Who owns them now? Is it wrong for me to love my own?”51 Old Tassel, in a letter to the South Carolina Governor (1776) stated that “We are the first people that ever lived on this land; it is ours.”52 In a letter to John Ross, Aitooweyah, The Stud and Knock Down wrote: “We the great mass of the people think only of the love of our land … where we were brought up … for we say to you that our father who sits in Heaven gave it to us …”53 In 1860, Ross advised the Cherokee council that “Our duty is to stand by our rights, …” and he wrote to Ben McCulloch that “Our country and our institutions are our own. … They are sacred and valuable to us as are those of your own ... I am determined to do no act that shall furnish any pretext to either of the contending parties to overrun our country and destroy our rights. …”54 Isaac Warrior of the Senecas once said that “… Then we always thought . .. when we ran away we did nothing, and always consider the land we have as ours yet, and we want to stand there yet.”55 Ten Bears of the Comanches once said that “I want no blood upon my land to stain the grass. I want it clear and pure, and I want it so that all who go through among my people may find peace when they come in and leave it when they go out.”56 Satanta added: “A long time ago this land belonged to our fathers; but when I go up the [Arkansas] river I see camps of soldiers on its banks. These soldiers cut down my timber; they kill my buffalo; and when I see that it feels as if my heart would burst with sorrow.”57 Towaconie Jim of the Wichitas once said that “We have always thought our lands would remain ours, and never be divided in severalty, and it can never be done with our consent. The Government treats us as if we had no rights, but we have always lived at our present place, and that is our home.”58 Certainly these words contain at least 50

From “A Cry From an Indian Wife,” in Johnson, pp. 15-7. Emphasis provided. Quoted in J. Angelo Corlett, “Moral Compatibilism: Rights Responsibility, Punishment and Compensation,” Ph.D. Dissertation, University of Arizona, 1992. Emphasis provided. 52 Debo, A History of the Indians in the United States, p. 86. 53 Debo, A History of the Indians in the United States, p. 124. 54 Debo, A History of the Indians in the United States, p. 171. 55 Debo, A History of the Indians in the United States, p. 181. 56 Debo, A History of the Indians in the United States, p. 219. 57 Debo, A History of the Indians in the United States, p. 220. 58 Debo, A History of the Indians in the United States, p. 302. 51

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a pre-reflective notion of rights as entitlements to sovereignty over natural resources, for those, that is, who acquire them legitimately and care for them responsibly. So it is simply false, and perhaps even morally insulting, to think that rights are indicative of a civilized society and that Native Americans were too barbaric to have and understand some notion of rights that would be recognizable today. Moreover, as James Tully insightfully points out, various Native American nations indeed had governments which recognized equality and trust in negotiations and treaties between parties, and European invaders themselves (at least many Colonists) recognized Native Americans as being sovereign nations with whom treaties could and should be negotiated and signed.59 Hence the baselessness of Locke’s rather naïve analysis of Native American peoples as having no governments that articulate and protect property rights, including land rights. It is false, then, to claim that the moral requirement of reparations is contingent on the wronged party having a sense or conception of rights which would ground the reparations, and it is also false of many Native Americans in particular that they had nothing akin to a contemporary notion of rights, broadly construed. One wonders why the constant cries for Native American rights to be respected were ignored by the majority of the European invaders and especially by the U.S. government and its citizenry each of whom proclaimed to respect the rights of all humans.

THE OBJECTION FROM THE INDETERMINACY OF NATIVE AMERICAN IDENTITY Another objection to the awarding of reparations to Native Americans is the Objection from the Indeterminacy of Native American Identity. This argument states that, even if the statute of limitations has not expired on legitimate Native American claims to reparations, such reparations are unwarranted because of the overly difficult task of determining the boundaries of ethnic group membership in general, and of Native American tribal affiliations in particular.60 For example, does it make moral sense to provide reparations to those who are, say, 10% Cherokee and 90% European American? What are the boundaries of ethnic group identity for purposes of reparations in particular and corrective justice more generally? 59 60

Tully, “Aboriginal Property and Western Theory: Recovering a Middle Ground,” pp. 169-79. This issue is raised in relation to reparations to African-Americans [See Boris Bittker, “Identifying the Beneficiaries,” in Barry R. Gross, Editor, Reverse Discrimination (New York: Prometheus Books, 1977), pp. 279f.]. A philosophical analysis of the conditions of ethnic group membership is found in Corlett, Race, Racism, and Reparations, Chapters 1-3.

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However, the Objection from the Indeterminacy of Native American Identity is too pessimistic concerning the abilities of history, the law, and Native Americans themselves to trace ethnic ties within and between Native peoples. Today’s Native American nations (such as the Navajo Nation in Window Rock, Arizona, USA, or Six Nations in Brantfort, Ontario, Canada) keep track of membership within their respective nations precisely along genealogical lines. Thus to the extent that a person is able to be clearly identified as someone belonging to a particular Native American nation (or to more than one nation, for that matter), and to the extent that that nation (or members of it) are owed reparations, that is the extent to which each member of the nation, as a descendant of the victims of gross forms of wrongdoing, are deserving of reparations. It is irrelevant to the moral status of reparations (or the moral desert notion of reparations) that such reparations might impinge on the privacy of persons in regards to their ethnicities, or that a “Balkanization” of ethnic groups might ensue. Insofar as the boundaries of Native American identity are concerned, perhaps these possible problems are, in the end, insoluble in any precise or uncontroversial sense. But these factors hardly render unrequired reparations to Native Americans. For many Native Americans are 50% or greater Native American, belonging to one or more such nations. And the fact that some people’s Native American identity is dubious in no way serves as a reasonable consideration to refuse reparations to those who are clearly of substantially Native American ethnicity and who are otherwise deserving of them. Furthermore, the difficulties in defining precisely the boundaries of Native American identity hardly justifies the current occupation of lands once used and settled by Native Americans by non-Native Americans where such land possession violates the Principle of Morally Just Acquisitions and Transfers. To the extent that this principle is violated in the chain of transfers of lands which have a trail to Native Americans and the taking of their lands and lives by, say, the U.S. military, then it is unjustified for current non-Native American residents of the lands to claim anything more than a mere prima facie right to the lands.

THE HISTORICAL REPARATIONS OBJECTION Yet another objection to reparations to Native Americans is that reparations have been paid to Native American nations in the past for wrongs committed by the U.S. government. I shall refer to this objection as the “Historical Reparations Objection.” In the case of reparations paid to Native Americans by the U.S., there are the examples of the State of Georgia’s restoration of many Cherokee landmarks, a newspaper plant and other buildings in New Echota,

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and Georgia’s repealing of its repressive anti-Native American laws of 1830 (It took until 1962 for this to occur, however). Moreover, in 1956 the Pawnees were awarded over $1,000,000 in a suit they brought before the Indian Claims Commission for land taken from them in Iowa, Kansas and Missouri. In 1881, the Poncas were compensated by the U.S. Congress for their ill-treatment by the Court of Omaha, Kansas. For the illegal seizure of the Black Hills in 1876, then owned by the Sioux, compensation was paid. In 1927, the Shoshonis were paid over $6,000,000 for land illegally seized from them (the amount was for the appraised value of half of their land, however). There are a few other instances of reparations to Native Americans, as history tells us.61 However, the Historical Reparations Objection is based on evidence of reparations to a few Native American nations for property rights violations. There is a three-fold difficulty here. First, such reparations were hardly sufficient to serve as anywhere close to adequate compensations for the property, “maltransfers,” damages, etc. in question. Furthermore, the objection ignores completely the question of reparations for undeserved violence against the Native Americans, much of such violence was inflicted on various Native Americans by the U.S. military. Finally, it ignores the fact that the vast majority of property rights violations and civil rights violations against Native Americans in general are as of yet uncompensated. Not unlike the Objection from Historical Progress, the Historical Reparations Objection, then, seems to be a non sequitur.

THE OBJECTION FROM SOCIAL UTILITY There is another objection to the argument for reparations to Native Americans, and it concerns whether or not the awarding of reparations to Native Americans by the U.S. would significantly decrease overall social utility. It would render the U.S. and its citizens – not to mention Native Americans themselves – worse-off. For, as John Locke argues, the Europeanbased commercial system makes life far better-off for everyone than the primitive hunting and gathering ways of life enjoyed by the Native American nations.62 I shall refer to this as the “Objection from Social Utility.” This utilitarian-based concern is that, strictly speaking, the awarding to Native Americans of the lands that were acquired from them in violation of the Principle of Morally Just Acquisitions and Transfers would surely mean the dissolution of the U.S. as we know it. Most U.S. citizens reside on land which 61 62

Debo, A History of the Indians in the United States. Locke, Second Treatise on Government, Sections 34, 37, 40-3. For an assessment of Locke’s view, see Tully, “Aboriginal Property and Western Theory: Recovering a Middle Ground,” pp. 161f.

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would, presumably, be relinquished to Native peoples should reparations be strictly enforced. The economic, political, and social implications of this action would be unthinkable, even if the awarding of reparations in this fashion were required by considerations of compensatory justice and the balance of human reason. So social utility requires that reparations not be awarded because of the undue disruption that would certainly be experienced by the majority of citizens of each of the countries in question. Where would such citizens go if forced by, say, the International Criminal Court, to vacate the premises? Which countries would be in economic and political positions to admit these newly homeless persons? Thus reparations to Native Americans are morally unjustified, it is argued, because they would violate some acceptable principle of social utility. However, the Objection from Social Utility does not, unsurprisingly, take seriously what people deserve. For even if, strictly speaking, the balance of human reason permitted or required reparations which would then force U.S. citizens from the land on which they reside, this would not mean that the moral prerogative of the reparations in question would lead to the disbanding of the current citizens of the U.S.. For Native peoples might very well settle for sovereignty rights to the existing lands, yet lease such lands to the rest of the inhabitants. This mode of reparations would most likely dissolve the U.S. as we know it. But perhaps the U.S., insofar as it was founded on the clear, repeated and intentional violation of the content of the Principle of Morally Just Acquisitions and Transfers, deserves to be dissolved in favor of taking seriously considerations of ethics and justice. Nonetheless, the sovereignty over certain lands by Native Americans to others satisfies the concern for morality and justice in that it gives back to Native peoples the lands to which they had and have ultimate (“trumping”) moral rights. But it also does not unduly affect those currently living on those lands in violation of the Principle of Morally Just Acquisitions and Transfers. For they are not left without a place of residence, evading the aforementioned concern. Thus the Objection from Social Utility does not pose an insoluble problem for reparations to Native Americans, though at least one strict form of reparations to Native Americans does imply the dissolution of the U.S. as we know it (see below). The citizens of the U.S. would become highly dependent on the goodness of the Native tribes. Of course, history shows that most Native peoples are not the kinds of people with whom one has to worry regarding good will and co-operation. A lengthy history of upheld treaties with the U.S. speaks loudly to this effect. Furthermore, there is something misleading about the Objection from Social Utility as it applies to reparations to Native Americans. The objection is that the majority of persons now residing in the U.S. would be significantly and adversely affected by the awarding of such reparations to a minority of persons, all in the name of some “ideal” of reparative justice. Yet the argument fails to recall that upon the invasion of such lands centuries ago by Europeans, the clear

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majority of residents were Native Americans! The Objection from Social Utility seeks to argue that reparations to Native Americans would pose social utility problems for current U.S. citizens. This objection, at least in some contexts, represents a rather morally insensitive attitude toward the crimes committed by the U.S. military against various Native Americans. Moreover, if the informational content of the same argument is indexed to the times in which Native American lives and lands were immorally acquired by the U.S. government, then considerations of social utility might well favor a policy of reparations to Native Americans as a (then) numerical majority whose rights were violated by certain (then) numerical minority of invaders. Thus we cannot without independent and plausible argumentation simply assume that current U.S. citizens, say, count as the primary subjects of social utility maximization. For when social utility maximization is indexed to the times in which Native American lands and lives were lost to, say, Andrew Jackson’s military campaign to fulfill manifest destiny, then Native Americans are the ones who (cumulatively speaking) count as the subjects of social utility maximization. After all, if the Objection from Social Utility works against the awarding of reparations to Native Americans by indexing what counts as social utility maximization to what maximizes happiness for today’s residents of the lands in question, then by parity of reasoning it works against attempts to compensate U.S. citizens should, say, a more populous China succeed in conquering North America by way of genocide. After all, if what is most important is the maximization of social happiness or such for the greatest number of persons, then what truly maximizes a majority group of conquerors will always trump the rights of those of the conquered minority groups. The difference between this sort of “ethic” appears indistinguishable from a policy of “might makes right,” hardly to be taken seriously by a moral philosopher. If it demonstrates anything at all, the Objection from Social Utility shows the futility of an act utilitarian standpoint in taking seriously the rights of minority members of society. Of course, this point about act utilitarianism is not novel.63

THE RELIGIOUS FREEDOM OBJECTION Closely related to the Objection from Social Utility is what I shall call the “Religious Freedom Objection.” It argues that reparations to Native Americans are morally unjustified because it would lead to the dissolution of the U.S., which was founded on the principle of religious liberty for all. Since this principle is sound, whatever would pose a significant problem for it must be 63

That considerations of social utility might favor (rather than disfavor) reparations to those deserving of them is argued in Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” pp. 74f.

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rejected. Since the dissolution of the U.S. would spell the demise of its protection of liberties of various religious groups within U.S. borders, substantial reparations to Native Americans are unjustified. But the Religious Freedom Objection fails to see the bitter irony in what it claims to support. For the U.S. was established, among other things, to secure religious liberty, yet in the process it ran roughshod over the religious freedom of hundreds of Native American nations! Moreover, as if that were not sufficient, the U.S. still engages in such moral duplicity.64 Thus the Religious Freedom Objection cannot be used to thwart reparations to Native Americans without exposing the crudest form of moral hypocrisy. Furthermore, even if the Religious Freedom Objection works, it works so as to support Native American reparations, as such reparations would surely serve to secure religious freedom for the descendants of Native Americans.

THE ACQUIRED RIGHTS TRUMPING ORIGINAL LAND RIGHTS OBJECTION Some would argue that certain rights can be acquired where previously there were no such rights. In particular, they would object to the moral requirement of reparations to Native Americans on the grounds that the U.S. descendants of the European invaders are not themselves morally accountable for the evils inflicted on earlier Native peoples in America, thus escaping the pale of moral retrospective liability responsibility on which such reparations are said to be based. Those who currently reside on putatively U.S. soil and who are not Native Americans did not secure the land illicitly. Furthermore, it is argued, recent generations of U.S. citizens have actually acquired moral rights to the lands on which they reside.65 What grounds such rights? To be sure, many U.S. citizens have mixed their labor with the land in the forms of building or purchasing homes, working the land, etc.66 This Lockean point regarding what one has a right to is said to ground the moral rights of contemporary U.S. citizens to “their” land. In addition, one might argue that what the supporters of 64 65 66

See Burleigh T. Wilkins, “A Third Principle of Justice,” The Journal of Ethics, 1 (1997), pp. 355-74. This argument is set forth and defended in Lyons, “The New Indian Claims and Original Rights to Land,” pp. 252f. See Locke, Second Treatise on Government. For a helpful discussion of Locke’s positions on rights and other political concepts, see A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992); The Edge of Anarchy (Princeton: Princeton University Press, 1993). Locke’s line of reasoning has been plausibly refuted in Robert Nozick, “Distributive Justice,” Philosophy and Public Affairs, 3 (1973), pp. 70f. See also Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988), Chapters 6-7; Jeremy Waldron, “Two Worries About Mixing One’s Labor,” The Philosophical Quarterly, 33 (1983), pp. 37-44.

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reparations to Native Americans neglect to see is that there is more to this matter than mere original land acquisition rights. There are also the issues of merit and desert. Arguments for reparations to Native Americans based on original land acquisition are implausible given that they ignore the fact that current non-Native peoples have since acquired rights to the lands based on their acquiring such lands legitimately. Because property (including land) rights change over time, argues David Lyons, today’s Native Americans would probably not have rights to their ancestors’ lands even had they not been stolen from them by the U.S. government. Thus reparations to Native Americans by the U.S. government for the past injustices are unwarranted.67 I shall refer to this as the “Acquired Rights Trumping Original Land Rights Objection.” But the Acquired Rights Trumping Original Land Rights Objection is flawed, and for several reasons. First, reparations do not require that those who pay them are morally accountable for the wrongdoing that justifies–even requires – them. Not unlike collective responsibility, there can be liability without contributory fault.68 Secondly, a ruthless invader can steal land and then mix her labor with it and thereby, according to the argument, gain rights to the stolen land. Yet this is hardly morally justified. Furthermore, that invader may sell her ill-gotten land to an “innocent” party, yet this is a clear violation of the Principle of Morally Just Acquisitions and Transfers. In a similar way, then, the mixing of one’s labor with the land is insufficient to ground a moral right had by U.S. citizens to the lands in question. Furthermore, as Waldron argues, … the Lockean image of labor (whether it is individual or cooperative) being literally embedded or mixed in an object is incoherent. … For it would be impossible to explain how property rights thus acquired could be alienable – how they could be transferred, through sale or gift, from one person to another–without offence to the personality of the original acquirer.69 So something else must obtain to make plausible the claim that current U.S. citizens have overriding moral rights to the lands on which they reside. But what would that be, except that one must inherit or acquire land without it being the case that the Principle of Morally Just Acquisitions and Transfers is 67

Lyons, “The New Indian Claims and Original Rights to Land,” pp. 254f. Lyons argues that the genuinely compensable wrongs against Native Americans by the U.S. government might be more recent acts of discrimination against them, rather than the historical injustices of murders and illegitimate takings of their lands (Lyons, “The New Indian Claims and Original Rights to Land,” pp. 268-71). 68 Feinberg, Doing and Deserving, pp. 241f. 69 Waldron, “Superseding Historic Injustice,” p. 17.

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violated? One cannot legitimately inherit or deserve what has been acquired or transferred by way of immorality or injustice. As Christine M. Korsgaard argues, “… if a theft or swindle succeeds, we do not take it that the new distribution of property is legitimate.”70 Finally, if some U.S. citizens have moral rights to “their” lands by “just” inheritance,71 then why would we not think that original land rights of Native peoples in turn accrue to current Native Americans? This would mean that the real question of which set of rights “trumps” another’s boils down to, among other things, whether or not there was a violation of the Principle of Morally Just Acquisitions and Transfers concerning what is now deemed by many to be U.S. territory. It might be argued that there is a justified limitation of time placed on rights claims, and that the limitation on the claim of a right to reparations has expired for Native Americans to justly claim their rights to the lands. In U.S. law, this is referred to as the “Laches doctrine:” If there is a significant amount of time that passes without a wronged parties attempting to claim it’s right to something, then the claimant loses her right to that thing. Or, at the very least, the right “fades” over time.72 As George Sher argues, “…one reason that compensability fades over time is that victims neglect reasonable opportunities to acquire equivalent entitlements…”73 Astonishingly, Sher makes this claim in the context of the issue of compensation for harms to Native Americans. But this line of reasoning neglects the historical reality that at several points in time various Native American nations have publicly claimed their land rights and sought justice for the various acts of genocide against them by the U.S. government. Indeed, there is a continual string of attempts by Native Americans to seek justice for the American Holocaust and its related crimes to each and every one of the three branches of the U.S. government! Various Native American officials and others have appealed directly to former U.S. presidents, the U.S. Congress, and the U.S. Supreme Court (among others) in order to secure justice for the American Holocaust.74 That such claims were made repeatedly and not respected is a matter of historical fact, and that the claims of many Native Americans were not respected fails to count as evidence for the 70

Christine M. Korsgaard, “Taking the Law Into Our Own Hands: Kant on the Right to Revolution,” in Andrews Reath, Barbara Herman and Christine M. Korsgaard, Editors, Reclaiming the History of Ethics: Essays for John Rawls (Cambridge: Cambridge University Press, 1997), p. 307. 71 That inheritance is justly and fairly delimited by principles of justice is argued in John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 277f.; Collected Papers, Samuel Freeman, Editor (Cambridge: Harvard University Press, 1999), pp. 142f. 72 A similar point is found in Waldron, “Superseding Historic Injustice,” p. 15. 73 George Sher, Approximate Justice (Totowa: Rowman and Littlefield Publishers, 1997), p. 26. 74 Sher and others who might not be aware of these facts might want to consult a wealth of excellent historical works on Native American history, some of which are mentioned in note 2, above.

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claim that the opportunity to claim the right to reparations has truly expired. For many Native Americans satisfied the condition in question. But their pleas were simply ignored or turned away. We must bear in mind that an unjust legal system’s refusal to uphold Native American claims to lands (and compensation for crimes constituting violence to persons, among other things) hardly serves as a reasonable foundation for a statute of limitations on Native American claims concerning what they deserve as compensation for harmful wrongdoings. Reparations to Native Americans in the U.S. are either morally required or they are not, regardless of the fact that morally corrupted legislative and judicial systems were put in place to (among other things) bias decisions against Native American claims, thus supporting the idea of the expiration of the statute of limitations on Native American land claims. Furthermore, that contemporary U.S. citizens are not causally responsible for the past wrongs committed against Native Americans in no way nullifies the fact that today’s lands are, in the main, occupied by those who have acquired them through a chain of possessions which is in clear violation of the Principle of Morally Just Acquisitions and Transfers. For as was pointed out in the refutation of the Objection to Collective Responsibility, that I have not wronged Native Americans in some direct way hardly justifies my being in the possession of stolen or ill-gotten property. Thus there needs to be a reason other than the one provided by the statute of limitations advocates that would ground the acquisition of moral rights to lands now occupied by U.S. citizens. Some might argue that the Lockean proviso grounds the rights of current U.S. citizens to the lands on which they reside in that Native Americans in the distant past had more land than they could use, and that the Native Americans had no right to deprive European “invaders” of their settlement of North American lands that were not in use by Native Americans. However, this line of reasoning is problematic for the following reasons. First, most of the land acquired by the European invaders (including the U.S. government) was by way of force and fraud against Native Americans (not to mention, certain non-Native Americans!). So even if Native Americans had an obligation (based on the Lockean proviso) to share some of the North American lands with others, it does not follow that the lands had to be shared with those who dealt Native Americans injustices of the harshest orders. This holds whether the invaders were conquering “explorers,” or “mere settlers.” The possible difference between these two groups in terms of their putative collective moral liability for harms against Native Americans does not diminish 75

As noted above, U.S. law recognizes no statute of limitations in cases of murder. Thus neither the statute of limitations objection to reparations to Native Americans (rejected earlier) nor the Laches doctrine count against reparations to Native Americans in instances where murders of Native Americans were perpetrated by the U.S. government and representatives of its agencies in the fulfilling of their duties as official representatives of the U.S. government.

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the fact that each group played a crucial role in the unjust acquisitions and transfers of lands that were inhabited by Native Americans. Second, the Lockean proviso states that one has a right to X to the extent that there is enough and as good of X for others.76 However, U.S. history is replete with examples of Native Americans welcoming with open arms European invaders, under the assumption, no doubt, that something like the Principle of Morally Just Acquisitions and Transfers would not be violated in the course of the latter groups’ settling the lands. So Native Americans, by and large and from the outset of the invasion of the Americas, acted in congruence with the Lockean proviso both in terms of their dealings with non-Native Americans and in terms of their dealings with most other Native Americans. Yet history tells the complicated and dismal stories of the injustices that Native Americans experienced in losing their lands to European invaders, hardly a morally adequate foundation for current U.S. claims to North American lands.77 Furthermore, it is unclear whether the Lockean proviso was violated by Native Americans as a whole. Considering that there were hundreds of such nations in North America, and that many of them were nomadic, it is not at all certain that there was sufficient land and resources for them to share with Europeans.78 Thus it is difficult to see how original rights of Native Americans to the lands and resources in question are trumped by subsequent European putative rights to the same lands and resources for reasons of the Lockean proviso.

THE SUPERSESSION OF HISTORIC INJUSTICE OBJECTION Furthermore, there is the Supersession of Historic Injustice Objection to reparations, articulated by Waldron. The basic idea here is that “changing circumstances can have an effect on ownership rights notwithstanding the moral legitimacy of original appropriation.”79 Applied to the Native American experience, the argument runs as follows. There have been historic injustices committed against Native Americans, as we all know. But historical circumstances have changed, and situations where resources are scarce, such as now, 76

See Locke, Second Treatise on Government, section 27; Nozick, Anarchy, State and Utopia, pp. 175-82; Simmons, The Lockean Theory of Rights, pp. 278f. 77 Furthermore, it has been argued that it is reasonable to hold that the Iroquois indeed acquired rights to some North American lands, and on a Lockean basis! See John D. Bishop, “Locke’s Theory of Original Appropriation and the Right of Settlement in Iroquois Territory,” Canadian Journal of Philosophy, 27 (1997), pp. 311-38. See also Naomi Zack, “Lockean Money, Indigenism, and Globalism,” Canadian Journal of Philosophy (Supplementary Volume), 25 (1999), pp. 32f. 78 See Thompson, “Land Rights and Aboriginal Sovereignty,” pp. 320-21. 79 Waldron, “Superseding Historic Injustice,” p. 24.

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are those in which the future generations of those who themselves wronged Native Americans are morally entitled to share resources (including land) with Native Americans. Thus the initial injustices by past generations of European invaders and the U.S. military (among others) against Native Americans is superseded by changing circumstances. “Claims about justice and injustice must be responsive to changes in circumstances,” as Waldron argues.80 So the issue of historic injustice, though an important one, is superseded by the fact that inhabitants of lands are entitled to share it with others under conditions of scarcity of resources. After all, “the aboriginal inhabitants would have had to share their lands, whether the original injustice had taken place or not.”81 Waldron writes, If circumstances make a difference to what counts as a just acquisition, then it must make a difference also to what counts as an unjust incursion. And if they make a difference to that, then in principle we must concede that a change in circumstances can effect whether a particular continuation of adverse possession remains an injustice or not. … … It may be that some of the historic injustices that concern us have not been superseded, and that, even under modern circumstances, the possession of certain aboriginal lands by the descendants of those who expropriated their original owners remains a crying injustice. My argument is not intended to rule that out. But there have been huge changes since North America and Australasia were settled by white colonists. … We cannot be sure that these changes in circumstances supersede the injustice of their continued possession of aboriginal lands, but it would not be surprising if they did.82 There are problems, however, with the Supersession of Historic Injustice Objection to reparations to Native Americans. Although the argument admits that European invaders (and the U.S. government, more specifically) had no rightful claims to lands that they expropriated from Native Americans, the argument seems to say that later generations of at least some of those European invaders and many U.S. citizens gained land rights based on the premise that under conditions of scarcity, resources must be shared by all occupants of a territory. Yet the fact is that such conditions of scarcity would, so far as history informs us, have not likely existed if not for the harmful wrongdoings of the 80

Waldron, “Superseding Historic Injustice,” p. 25. Waldron, “Superseding Historic Injustice,” p. 25. 82 Waldron, “Superseding Historic Injustice,” pp. 25-6. 81

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European invaders themselves! There was certainly significant land and resources (bison, for instance, and other food sources) for the millions of Native Americans prior to the invasion of North America by Europeans and prior to the massacres of various Native Americans by the U.S. military. Nor is there uncontroversial evidence to suggest that there is a high probability that there would have been a scarcity of such resources among Native Americans absent natural disasters and European and U.S. invaders. So in effect the argument seeks to ground the future generations of European and U.S. invaders’ putative moral claims to the lands on which they reside on the fact that those whose ancestors by and large created a problem of resource scarcity have a moral claim to the lands over and above those who once possessed the land without scarcity of resources. But why not infer from history and ethics a rather different conclusion, namely, that at best current non-Native Americans possess trumping or overriding moral claims to whatever property they legitimately own which is on the land belonging to the descendants of those from whom the European invaders expropriated it?83 Is this not the more intuitively sensible inference, given historical circumstances and principles of compensatory justice? How, then, can we say that the violations against Native Americans are superseded? Simply because such evils occurred long ago? Hardly. For neither the Laches defence nor statutes of limitations seem plausible, morally speaking. Would we dare infer that a thief who breaks into my home, takes me hostage and resides there for months on end, eating my food, making himself “at home” in various other ways in turn somehow gains a right to the home, even if he should assume some of the household chores (after all, he is a rather tidy thief, and does not like to live in a messy place)? Would we not say that he is a thief, and that no matter how much he makes himself at home, that he has made himself at home in my home, and that he is to be arrested, tried, and if found guilty by way of a fair trial, then he is to be punished and made to compensate me for damages? Moreover, would we not also say that his bequeathing of that property to his kin is unjustified, thereby nullifying his kin’s claim to it? Why, then, do we not conclude similarly in the case of reparations to Native Americans?84 The Supersession of Historic Injustice Objection, then, surely has little to recommend it. Perhaps what is really at work in this objection is a fundamentally implicit denial of the worthiness of Native Americans to the

83

Of course, one must bear in mind the fact that much of what such persons might seem to have moral rights to on such lands were produced by way of natural resources that were taken from the lands without legitimate consent of those whose ands they are. 84 I say “similarly” in that those who currently reside on U.S. lands do so while they themselves are not causally responsible for the crimes perpetrated against Native Americans by the U.S. military. Thus compensation, not punishment, is what is at issue regarding reparations to Native Americans.

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very same kinds of rights protected for the same individuals who stand the most to lose should authentic justice accrue to Native Americans!

THE ANTI-PRIVATE PROPERTY RIGHTS OBJECTION The previous discussion pertained to the matter of whether or not reparations to Native Americans by the U.S. government are morally required. However, there is a line of argument that would challenge the very basis of the discussion, it would appear. It is that the fundamental flaw in the previous discussion, especially concerning the Principle of Morally Just Acquisitions and Transfers, is that it wrongly assumes the plausibility of the notion of private property rights, something that Karl Marx, among others, refuted (especially in terms of original acquisition of land rights). Thus to the extent that the concept of private property rights (whether ownership or sovereignty rights) is problematic, so is the entire line of reasoning of the previous discussion supporting reparations by the U.S. government to Native Americans. I shall call this the “Anti-Private Property Rights Objection” to reparations to Native Americans. In reply to this concern, several points might be made in order to neutralize its argumentative force. First, even if sound, this criticism is not open to a defender of U.S. capitalism in that U.S. capitalism is contingent on the plausibility of the notion of property rights. So if it turns out, for example, that Marx is correct in his (1869) plea for “the abolition of landed property,” then it would follow that no U.S. citizen (or the U.S. government, for that matter!) has a moral right to any land, in particular, to the land on which she (or it) currently resides. Thus this Marxist-style concern about the morally problematic nature of property (land) rights and of the original acquisition of it is not open to the defender of the U.S. or its citizens from paying reparations to Native Americans. Second, even if it turns out that the concept of the original acquisition of land is null and void, it would not follow that reparations by the U.S. government are not owed to Native Americans. For though the arguments for land-based reparations might become problematic, such reparations might be justified on the basis of the Native American holocaust itself. It is hard to imagine that Marx would object that the victims of racist oppression in the form of a holocaust ought not to receive their compensation from their aggressors. So even if Marxist arguments against the ownership of land are plausible and win the day, it hardly follows that they in turn defeat the claim that reparations by the U.S. government to Native Americans are morally required on the basis of severe human and civil rights violations. One need not argue, by the way, that property rights, or rights more generally, are the core of an adequate moral and political philosophy. For rights (and their correlating duties) are at best merely

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part of what is needed and desired for a plausible moral and political economy. Nothing that I have argued in this chapter assumes a solely rights-based morality or political economy, though my defence of reparations (in terms of land) against various objections to them assumes the significance of property (land) rights. Third, to the extent that the concept of property (land) rights is plausible, it would appear that this same concept both supports the moral viability of U.S. capitalism (if it does at all) and condemns it on moral grounds in that U.S. capitalism is founded on the American holocaust. What the Principle of Morally Just Acquisitions and Transfers and the preceding discussion of various arguments against reparations to Native Americans show is that the concept of property rights condemns (not supports) U.S. society, morally speaking. To the extent that the U.S. was established on its own intended, knowing, and voluntary acts of genocide against various Native American nations, U.S. society is condemned on moral grounds. And this moral condemnation can hardly, except on the crudest of act-utilitarian grounds, be rescued by an appeal to the relative economic productivity experienced by the U.S. in recent years. Nor can the moral evils of the U.S. be somehow erased or neutralized by the ignoring of the American holocaust in favor of appeals to alleged or actual progress that the U.S. has made in terms of democratic civil rights reforms. For no amount of reform can itself serve as compensation for the degrees and kinds of physical harms of a holocaust.

THE COUNTERFACTUAL OBJECTION There is a final concern with policies of reparations to Native Americans. Waldron notes a counterfactual difficulty regarding reparations: … The present surely looks different now from the way the present would look if a given injustice of the past had not occurred. Why not therefore change the present so that it looks more like the present that would have obtained in the absence of the injustice? … The trouble with this approach is the difficulty we have in saying what would have happened if some event (which did occur) had not taken place.85 Waldron adds that the problem of reparations becomes even fuzzier when we factor into the rectificatory scheme the matter of human choice. For given the fact that humans do have some choices, this makes it quite problematic to 85

Waldron, “Superseding Historic Injustice,” pp. 7-8.

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figure out how the present situation might be readjusted to best approximate the scheme of things had a particular injustice not taken place. Besides the matter of whether or not such human choices can rightly have normative import and to be non-arbitrary, argues Waldron, “Ultimately, what is raised here is the question of whether it is possible to rectify particular injustices without undertaking a comprehensive redistribution that addresses all claims of justice that may be made. …”86 I shall refer to this as the “Counterfactual Objection.” In reply to Waldron’s concerns about counterfactual aspects of reparations, it might be argued that it hardly counts against the moral requirement of reparations to, say, Native Americans that the subsequent redistributive scheme of compensatory justice would lead to a proliferation of rights claims to historic injustices pertaining to the settlement and development of North America. Even if it were true that few such claims could or would be settled adequately, this does nothing to count against the claim that reparations are morally required as a matter of moral principle. Nor does it somehow render senseless the multidimensional aspects of the expressive functions of reparations to Native American nations. Furthermore, in the case of Native American nations, there are records of leaders of such nations declaring their unambiguous aversion to and despising of most anything to do with “manifest destiny,” and other social, political, and cultural features of the “American experiment.” Historical records provide a keen understanding of the culture and beliefs of Native American peoples, and we can be sure that what is important to them is at least the returning of their land to them, even though the land is hardly in the condition in which it was seized from them. That it is impossible to return to Native American nations what was once theirs and in the same condition as it was when it was taken from them by force and fraud is not a good enough reason to think that it is not morally required to return such lands to them.87 Moreover, there is nothing in Native American history or culture to suggest that Native Americans would have freely chosen to give up their lands to anyone who would do to the lands what European invaders by and large did to it. Although the counterfactual approach to reparations is indeed a problem for reparations policies, it says nothing about the moral requirement of reparations themselves, except that, like matters of punishment and compensation in general, rectificatory justice is at best imprecise. The Counterfactual Objection against reparations to Native Americans would seem to imply that punishment and compensation are too problematic even for most contemporary courts to handle, as evidence and argumentation is rarely unambiguous in interpretation. Yet this is surely an implication few would find plausible. Imprecision and 86 87

Waldron, “Superseding Historic Injustice,” p. 13. For a discussion of how reparations might accrue in such circumstances, see Tyler Cowen, “Discounting and Restitution,” Philosophy and Public Affairs, 26 (1997), pp. 168-85.

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Herculean cases are hardly excuses for the law’s turning its sometimes slumbering head from the need for justice. So the Counterfactual Objection against reparations to Native Americans does not show that reparations are not morally required, or that they are not feasible as a legal means of compensating (to some significant extent) those who deserve them. If the objections to reparations to Native Americans are specious for at least the reasons noted, and if the Principle of Morally Just Acquisitions and Transfers is plausible and applicable to the Native American experiences, then the balance of reason suggests at least the prima facie plausibility of some policy of reparations to Native Americans. Moreover, it is incumbent on the supporter of such reparations to devise a plausible policy of reparations. Although a full-fledged theory and policy of reparations to Native Americans is beyond the scope of this project, a few points can be noted along the lines of how reparations to Native Americans might accrue. It should be acknowledged that various of the nations that constitute Native Americans as a broad set of ethnic groups have varying degrees of experiences with oppression at the hands of the European invaders and the U.S. government and its citizenry, and that a principle of proportionality must be used to distinguish variant levels of reparations to different Native American nations, that is, where history is clear about the differences in evil experienced by them. In general, however, whether it be the Navajos, the Cherokees, the Mohawks, the Six Nations, the Senecas, or other Native American nations, sufficient evils have been perpetrated against them by the U.S. government and its citizens that would require some form of compensatory reparations of a significant measure. One obvious reason for this is noted by Sher: “In the case of … Indians, … we may indeed have enough information to suggest that most current group members are worse off than they would be in the absence of some initial wrong.”88 Yet it is unnecessary to impose a standard of strict proportionality that the law cannot uphold even in much easier cases. After all, one possible strategy is to argue that even if compensating for such wrongs would not restore full justice to Native Americans, it would at least bring Native Americans substantially closer to justice than they are currently.

SOME POSSIBLE REPARATIONS POLICIES Let us consider the plausibility of a range of possible policies of U.S. reparations to Native Americans. What sorts of specific compensatory measures ought to be imposed and against whom? I will consider a number of such possible policies, from some of the more demanding ones to some of the least demanding. I assume that the crimes of unjust land takings, murders, etc., by 88

Sher, Approximate Justice, p. 15.

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the U.S. government contain a minimal amount of moral ambiguity: that the identities of the collective perpetrators, victims, and those targeted for reparations are knowable within reasonable clarity and precision.89 Strict Justice, the Complete Restitution of Lands and Compensation for Personal Injuries/Loss of Personal Property. It might be argued that, strictly speaking, morality and justice require the complete return of the lands of North America that were gotten from Native peoples in violation of the Principle of Morally Just Acquisitions and Transfers. Such a measure of reparations would not only return all such lands outright to Native peoples, but would require U.S. (along with British, Dutch, Spanish, French and Canadian governments, among others) to pay native peoples significant sums of money as compensation for damages for the crimes (murders, rapes, mayhems, robbery, etc., by the thousands) committed against Native Americans in the “settling” of the “New World.” It is plausible to believe that at least trillions of dollars would be rightly owed to Native Americans by these governments, each of which participated in the massacre and near genocide of Native Americans over periods of generations. This form of reparations to surviving Native American nations would surely bring to economic demise each of the governments paying such reparations, and would tilt rather severely the balance of economic power in favor of Native Americans. In response to this proposed policy of reparations, it might be argued that a certain utilitarian consideration outweighs strict reparative justice, namely, that the millions of U.S. (and other countries’) citizens not be made significantly worse-off in the process of rectifying past wrongs committed against native peoples. This is especially true since those who would be made worse-off are the clear numerical majority of people residing in the U.S.. Considerations of social utility require that a less extreme and demanding policy of reparations be adopted. Thus the Argument from Social Utility, refuted above, is invoked here. But one question is whether or not such U.S. citizens are in a moral position to deny the legitimacy of a policy that would place them in economic ruins. The reason why such citizens are not in such moral positions is that they are residing on lands to which they have no genuine and overriding moral right, that is, a moral interest or claim that (all things considered) trumps other competing moral interests or claims to the lands in question. Does Andrew, who knowingly or unknowingly purchases or otherwise receives stolen property, have a moral right to it? If so, does Andrew’s moral right trump the 89

Each of the following possible policies of reparations is consistent with each of the reparations standards found in Cowan, “Discounting and Restitution,” pp. 171-75. Also assumed is a principle of proportional compensation according to which compensation in the form of reparations must be commensurate to the harms wrongfully inflicted on Native Americans by the U.S. government and its agencies and institutions.

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moral right of the victim (the original moral right holder of the property) to the same? Consider the following example of a wealthy person whose entire fortune was contingent on and amounted to that which she inherited in violation of the Principle of Morally Just Acquisitions and Transfers. Even if she is not morally entitled to that which was obtained unjustly, is she not entitled to the fruits of her labor or investments above and beyond the basic value of the inheritance?90 Even if it is true that she mixed her labor with some of the illgotten fortune to increase the fortune over time, her increase in fortune might be off-set by the balance of leasing or interest payments owed for the land illacquired or the fortune acquired unjustly. Yet we would not think it correct that she remain in possession of “her” fortune, but that she return it to the rightful heir or owner, namely the person who has a valid moral claim to the fortune. Complete Restitution of Lands. Another policy of reparations to Native Americans would be the complete restitution of lands to them. Although it is impossible to give back to particular Native American nations the lands that were theirs originally due to the fact that some such nations no longer exist, it would be possible to provide Native American nations, as a coalition, all such lands that were acquired or transferred against the Principle of Morally Just Acquisitions and Transfers. Presumably, this would mean that most or all U.S. occupied lands would be transferred to Native American nations, and that Native Americans would become, as a coalition, a sort of “landlord” over those who currently reside on the lands.91 One difficulty with this proposed policy of reparations is that it does not account for the crimes against persons, and is thus an insufficient form of reparations to Native Americans who as a group not only lost their native lands, but also were in many cases enslaved, killed, suffered severe damage to forms of livelihood, and so forth. So the restitution of lands to Native Americans simply repays them for the lands that are theirs by moral right. However, it does not compensate them for the damage to the land and resources, nor for the crimes against persons committed against them by the U.S. government. Thus this proposed form of reparations does not satisfy the criterion of proportional punishment and compensation. Complete Compensation for Harms to Persons and Property. Another policy of reparations to Native Americans would involve complete compensation for harms against Native Americans and their personal property. This would surely entail the payment of billions of dollars over several years, especially in light of the millions of such native persons who were murdered, mutilated, tortured, enslaved, etc., and those who survived often had their belongings and livelihoods 90 91

This issue is raised in Coleman, “Corrective Justice and Wrongful Gain,” p. 421. A restricted version of this policy is proposed in Thompson, “Land Rights and Aboriginal Sovereignty,” p. 328.

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ruined by marauding U.S. citizens (even by the U.S. military!). A complete compensation program for Native Americans would likely involve a continual payment of a substantial sum of money to Native American nations, with the idea that such payments would in themselves hardly serve as adequate compensation for the crimes perpetrated. The difficulty with this form of reparations is that it does nothing to provide restitution to native peoples of their land that was taken from them in violation of the Principle of Morally Just Acquisitions and Transfers. In fact, such a “complete” compensation policy leaves untouched the very social structure and government and forces that subdued the Native Americans in the first place, standing as a continual reminder of how evil can stand in mockery of true justice. Even compensation with restitution of lands is hardly adequate for justice in this case. The same would follow, then, regarding policies of partial compensation for harms to persons and property, partial restitution of lands, partial compensation for harms to persons and property, and partial compensation for lands. Not unlike the previous proposal, then, this one too fails to satisfy the demand for even approximate proportionality concerning reparations for harms. The “Buffalo Commons” Proposal. Short of complete restoration of lands and/or compensation for deaths and personal injuries of Native Americans, there lies another proposal. It is the partial but significant restoration of lands to Native Americans, lands that have, it is argued, never played an important role in the economic viability of the U.S.. Thus the restoring of such lands to Native Americans by way of reparations would pose no real threat to the U.S. economy. This is what has been referred to as the “Buffalo Commons” proposal:92 . . . What you end up with is a huge territory lying east of Denver, west of Lawrence, Kansas, and extending from the Canadian border to southern Texas, all of it “outside the loop” of United States business as usual. The bulk of this area is unceded territory owned by the Lakota, Pawnee, Arikara, Hidatsa, Mandan, Crow, Shoshone, Assiniboine, Cheyenne, Arapaho, Kiowa, Comanche, Jicarilla, and Mescalero Apache nations. There would be little cost to the United States, and virtually no arbitrary dispossession or dislocation of non-Indians, if the entire Commons were restored to these peoples.93

92 93

Ward Churchill, From a Native Son (Boston: South End Press, 1996), pp. 528-30. Churchill, From a Native Son, p. 529.

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The reasons given in favor of this proposal are twofold. First, it provides Native Americans a means of tangible self-determination. Secondly, it provides “alternative socio-economic models” for possible adaptation by those who are not Native Americans. Of course, this proposal, however reasonable in its attempt to not disrupt the lives of U.S. citizens, is grossly inadequate as a form of reparations for the remainder of the territories taken by force and fraud from Native Americans. Nor does it begin to compensate Native Americans for the murders and other personal injuries inflicted on them by the U.S.. Nonetheless, the Buffalo Commons proposal is a reasonable attempt to balance the practical attempt to honor the unreasonable application of some plausible principle of utility to current U.S. society94 over against the demand for rectification for injustice. Although reasonable, the Buffalo Commons proposal is insufficient as a means for providing adequate (approximately proportional) reparations to Native Americans. Substantial Reparations Tax. The previously discussed policies of reparations to Native Americans would come in the form of court-ordered settlements. But that is not the only way in which such reparations might be made. Instead, a tax might be levied on U.S. citizens (not Native Americans, of course), one that would be paid to various Native American nations. A substantial tax might amount to, say, 10% of each non-Native American’s annual gross income. An objection to this substantial reparations tax might be that it is overly substantial and demanding on U.S. citizens. However, it is hard to understand this concern in light of the fact that current U.S. citizens are residing on lands to which they have no moral right, given the foregoing arguments. If anything is problematic about the nature and scope of the substantial reparations tax, it is rather that it is insufficiently substantial, not that it is overly substantial. To think for even one moment that such a proposal would even remotely satisfy the requirement of proportionality would make a blatant mockery of justice and fairness. Minimal Reparations Tax. A minimal reparations tax might amount to, say, 1% of each U.S. citizen’s gross annual income. But if the substantial reparations tax is properly deemed as insufficient to adequately compensate for the harms committed against Native Americans by the U.S. government, then surely this minimal reparations tax would be nothing more than an insult to Native Americans and to justice and fairness itself. The points of criticism of each of the above proposed reparations policies (excluding, perhaps, the first proposal) are meant to convey the idea that the fact that the U.S. citizenry does not desire to compensate Native Americans for 94

Recall the discussion of the Objection from Social Utility, above.

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the wrongs that the U.S. government has committed against the latter shows a certain amount of moral ineptitude on the part of the U.S. citizenry in general. Moreover, if the Principle of Morally Just Acquisitions and Transfers is correct in regards to the Native American experiences, then one is hardly in a moral position to deny the plausibility of any of these policies of reparations. For neither policy (except possibly the initial proposal) is proportionately adequate to compensate Native Americans for the wrongs their people have suffered at the hands of the very government that persists today. Yet one wonders why, except for reasons of racism and highly questionable moral character, most U.S. citizens would balk at even the hint of a minimal reparations tax to cover a fraction of the costs of arguably the worst evils ever perpetrated by a government. If the objections to reparations to Native (North) Americans in the U.S. are defeasible for the reasons given herein, then the presumptive case in favor of reparations to Native Americans gains strength. Barring further argumentation that would render morally problematic such reparations, then, a case for such reparations has been made along the following lines. To the extent that history is unambiguous and reasonably clear concerning the extent of guilt, fault, harmful wrongdoing, and the identities of perpetrators and victims of historic injustices, a policy of reparations to Native Americans should be enacted according to some fundamentally sound principle of proportional compensation. If the foregoing analysis is sound, then one way that the U.S. has of dragging itself out of the mire of its own perpetration of historic injustices against Native Americans is for it to institute and implement adequate policies of reparations to Native Americans. Even so, such policies must receive far more commitment by the U.S. government than the treaties made by the U.S. government with Native American nations in the past. What is also needed is a national sense of shame-based guilt95 and collective remorse96 for the roles that the U.S. government and its citizenry played in founding the U.S.. Yet if such shame requires a higher-level self-consciousness,97 this might well be precisely what U.S. society lacks, providing its critics with ammunition for claims of the fundamental immorality of the U.S. in general. For a society that is based on

95

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97

For an account of collective feelings of guilt, see Margaret Gilbert, “Group Wrongs, Guilt Feelings,” The Journal of Ethics, 1 (1997), pp. 65-84. For a more recent account of the concept of collective guilt, see Margaret Gilbert, Sociality and Responsibility (Totowa: Rowman and Littlefield Publishers, 2000), Chapter 8. For an account of collective remorse, see Margaret Gilbert, “Collective Remorse,” in Alexandar Jokic, Editor, War Crimes and Collective Wrongdoing (London: Blackwell, 2000), pp. 216-35; Gilbert, Sociality and Responsibility, Chapter 7. Gabrielle Taylor, Pride, Shame, and Guilt (Oxford: Oxford University Press, 1985), p. 67.

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unrectified injustice is itself unjust. But a society that simply refuses to admit and rectify its unjust history toward others not only remains unjust on balance, but serves as a stark reminder of the unabashed arrogance of its unspeakable badness.

CONCLUSION The basic philosophical movements of this book have been the following. First, a general analysis of responsibility was set forth, one that was grounded in and based on some of the fundamental concepts of contemporary moral responsibility theory, and one which can be used in criminal justice contexts and is congruent with the basic elements of criminal responsibility under U.S. law. The analysis provides philosophical substance to the content of the notion of desert. Desert is not some ephemeral or primitive concept that is understood only by way of retributivist intuitions. Rather, the notion of desert is based at least in part on the concepts of moral and legal responsibility. I stopped short of discussing and ensnarling readers in the quagmire of brilliant philosophical discussion that separates various contemporary philosophers of moral responsibility theory. Instead, I provided a view of responsibility with which most such philosophers could concur. Even if it turns out that the analysis provided herein is incomplete or somewhat incorrect, the retributivist position I present and defend herein is not contingent on the plausibility of a particular analysis of responsibility anyway. For whatever (positive) responsibility theory is in the end the best (most plausible) is the one to which my version of retributivism and desert must subscribe. Moreover, my theory of responsibility and punishment does not assume that there must be responsible agents, only that there are, in all likelihood, some. For all I know, each case of wrongdoing is such that it is so mitigated that punishment would rarely be justified. My purpose herein has been to articulate and defend analyses of responsibility and punishment for individual and collective agents such that, to the extent that any such agents are sufficiently responsible for harmful wrongdoings, they are to be punished in proportion to the harms they wrongfully caused to others. In other words, persons who commit harmful wrongs against others ought to get what they deserve within the confines of practicality and reasonableness. For what a harmful wrongdoer deserves just is a function of what she is responsible for, considering possible mitigating factors obtaining, and what measure of hard treatment (both in kind of punishment and amount of it) ought to be meted out to her. Thus my theory of retributivism is positive in the sense that it holds that only those who are deserving of punishment ought to be punished. Yet it is also a form of negative retributivism in that it holds that the innocent should never be punished. Following the outline of a theory of responsibility for use in a reasonably just criminal justice system, I set forth and assessed some of the competing theories of punishment, and more fully articulated a version of retributivism that I believe best withstands criticism. It is a retributivism that defines “desert”

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in terms of responsibility for harm caused to others and the extent to which an offender ought to be punished (if at all), and it does not make room for forgiveness or mercy except as a prerogative of individuals in the state. Indeed, forgiveness and mercy are supererogatory actions of such persons, morally speaking, as there is no requirement or duty of the state to forgive under any circumstance. However, unlike Immanuel Kant who argues that the state has a right and perfect duty of justice to punish criminals, my version of retributivism holds that the state indeed has a right, but not a perfect duty, to do so. I provide a desert-based responsibility and proportionality argument in favor of capital punishment for certain heinous crimes, assuming, of course, conviction of offenders under a legitimate and well-functioning system of due process of law. For under such conditions, to not punish by death strongly responsible offenders who commit such crimes is a violation of proportional punishment, which is crucial for any plausible theory of punishment. Moreover, failure to inflict capital punishment on those who deserve it can sometimes lead to an unintentional over-burdening of those who reside in poor neighborhoods of color. Furthermore, the proper and fair execution of deserving offenders may assist in the strengthening and maintaining of just democratic institutions. Turning from individuals to collectives, I set forth and defended an analysis of collective moral responsibility that I believe is useful in the criminal law. The analysis is consistent with the one found in Chapter 2 concerning individual offenders, at least, insofar as the basic conditions of responsibility are concerned: guilt, intentionality, knowledge, voluntariness, and fault. This analysis was extended to apply to corporate-collectives and the wrongdoings they commit. Finally, the matters of responsibility and punishment were extended to address wrongs committed by states against persons and groups. The example used was that of the U.S. and its evils committed against Native American nations. The U.S. is in a particularly vulnerable moral position along these lines, as it has chosen to, over the years, award reparations to Japanese Americans, but not to Native Americans (except in a few instances where meagre compensation was offered to some Native Americans, and sometimes rejected due to the inadequate nature of the reparative proposals), even though the latter groups have experienced far worst human rights and criminal violations by the U.S. government than the former group. Indeed, the manners in which Native Americans have been treated by the U.S. would arguably make the U.S. among the most unethical and evil societies in human history! And no amount of passage of time or social or political improvements in U.S. society (absent adequate reparations) can overturn this judgment. In light of this fact, I have set forth a philosophical and ethical foundation for the justification of reparations to Native Americans. I have even set forth some possible reparations policies. But the fact that the U.S. and its citizenry fails to take even

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the most modest of these proposed policies seriously perhaps makes it irreparably evil, and that is beyond reasonable dispute. Perhaps the U.S. has resolved that it cannot even begin to repay Native Americans for the atrocities it has inflicted on them, and bygones ought to be bygones. However, this fails to count as anything akin to a serious consideration of the complexities of justice and fairness. And countries that fail to take seriously major crises of justice are hardly those that ought to be considered humane, no matter how much their constituents speak of themselves as being even reasonably just. The fact that the U.S. deliberately fails even today to take seriously considerations of reparative justice to Native Americans speaks volumes of its evil nature, its willingness to at most provide extremely limited forms of compensatory justice to Native Americans only subsequent to its thorough invasion and plundering of their lands and lives in the name of greed, caprice, and racism beyond the imagination. Recall from Chapter 5 that forgiveness is of two kinds: attitude forgiveness and action forgiveness. For genuine forgiveness of either kind to obtain, there must be an apology. Yet an apology entails that the wrongdoer communicate effectively to the victim: what she did to the victim that was wrong; why what she did to the victim was wrong; that and in what particular ways she is committed by way of action to rectifying the wrong; good reasons why she will not harm the victim again. The U.S. government, much less its morally wayward citizenry, has not admitted that the complex movements (military, religious, economic, etc.) toward the fulfillment of Manifest Destiny were morally wrong, even evil in many ways. So it is unsurprising that it has yet to explain why its treatment of Native American nations was and remains wrong. It comes as no surprise that the U.S. government has failed to seriously broach the problem of reparations to Native Americans, except in some isolated legal cases where a few Native American nations sued the U.S. government for damages and were awarded meagre settlements. Thus it would be naïve to expect such an unrepentant country as the U.S. to promise to not harm Native Americans again, which explains why Native American nations have yet to be granted full sovereignty, and why the U.S. Internal Revenue Service even today considers itself legitimate in treating Native American nations in the ways that it does. Perhaps it is asking too much of a society founded on racist murder, hate, theft, and other forms of violent oppression to do the right thing about its own unrectified evil history. Perhaps, then, a country founded on its own unrectified evils against others remains evil still.

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INDEX

categorical imperative…….51-52, 54-55, 66-68, 91 ceteris paribus… 8, 107 civil disobedience.. 63-64 collective moral responsibility…… 6, 147, 149, 151, 153-156, 161-162, 166, 228 collective proportional punishment 175 collective responsibility........ 5-6, 8, 15, 147-153, 157, 159, 162-163, 166-172, 176, 180-181, 190-191, 193-196, 210, 212 compatibilism……. 19, 21, 27, 96, 203 compensatory justice……..7, 184, 207, 215, 218, 229 concurrence…… 17, 24, 26 corporate-collective punishment 166167, 173-176, 178-179, 181 corporate-collective responsibility 166169, 172, 180 Counterfactual Objection 190, 217-219 desert……… 2-4, 6-8, 19, 24, 26, 3637, 40, 43, 46, 56-57, 71, 73-75, 83, 89, 96, 100-105, 109-110, 127, 131, 133, 136-138, 140, 143, 188, 205, 210, 227-228 determinism………19-21, 27, 30, 104, 122-123 deterrence… 35, 41, 43, 57, 73, 77-78, 104, 117, 133, 136-137 due process… 16, 28, 38-39, 66, 71, 79-81, 134, 136, 141, 145-146, 228 Duff, R.A…13, 28-29, 32-33, 71, 128129 duty to punish…… 12, 52, 66, 68, 73, 107-109

Acquired Rights Trumping Original Land Rights Objection.…..190, 201, 209, 213 acting knowingly………. 8, 11, 162,172, 194 actus reus……… 17, 24, 103, 148-149, 160 affirmative action…......... 200-201 Affirmative Action Objection..190, 200 African Americans……... 7, 134-135, 197-200 Amnesty International….. 85 Anti-Private Property Rights Objection…. 190, 216 apology …......... 5, 8, 107-108, 113-114, 116-125, 127, 131, 185-187, 195 229 attendant circumstances… 17 Beenis v. Michigan…….. 179 Benn, Piers.......107, 119, 121, 125-126 Benn, Stanley …. …1, 40-41, 46, 107, 119, 121, 125-126, 231 Bentham, Jeremy….4, 35, 63, 76-84, 96, 132, 143, 202, 231 Blackstone, William……. 87-88 Booth v. Maryland …….. 144 Braithwaite, John…… 36, 43, 74-75, 97, 100, 103, 232 Buffalo Commons Proposal…… 222223 Burgh, Richard… 43, 71-72 Cane, Peter…… 13, 17-18, 23 capital punishment……6, 8, 30, 32, 46, 56, 64-66, 85-87, 93-95, 103, 125, 130-146, 228

249

250 Eighth Amendment (United States Constitution)... 75-6, 80, 85 Feinberg, Joel …11-13, 15-16, 18, 23, 25, 34-35, 44, 46, 57, 63, 71-73, 75, 85, 87-88, 97, 101, 105, 107, 110, 117, 147-148, 158, 165, 174, 185156, 193-194, 202, 210 Fischer, John Martin…. 20-22, 24, 44, 96, 110, 160 forgiveness…... 2-3, 5-6, 8, 106-113, 128, 130-133, 134, 138-139, 187, 195, 228-229 Frankfurt, Harry G. …….. 20-22, 24, 44, 160, 172 free will…………. 20-21, 30, 160, 172 Furman v. Georgia….85 genocide……… 7, 15-16, 88, 129, 183, 208, 211, 217, 220 Gilbert, Margaret.... 25, 147-150, 161162, 167, 194, 224 Gregg v. Georgia … 85 harm…………… 5-9, 11, 14, 16-19, 23-24, 26-27, 31-25, 37-28, 52, 56, 59, 61, 68, 71-73, 75-77, 81-82, 84, 86-90, 92-96, 98-105, 110-131, 133, 137, 140-141, 143-144, 147-148, 163-166, 170, 175-178, 180-181, 188-191, 193-194, 197, 211-212, 214, 217, 220-224, 227-229 Harm-Based Principle of Proportional Punishment… 92-93, 95-96, 98, 100 harmful wrongdoings…….….. 6, 31-32, 73, 81, 113, 115, 129, 144, 170, 177, 181, 193, 214, 227 Hart, H. L. A. ……. 1-2, 15-16, 35, 3738, 40-41, 72, 155, 174 Held, Virginia…. 151-53, 193, 238 Historical Principle of Proportional Punishment..... 98-100 Historical Reparations Objection...190, 205-206 imperfect duty… 3, 52, 67, 72, 117, 188 Inhumaneness Principle of Proportional Punishment…. 85-86, 90

INDEX insanity… 88, 144 intentional action ……… 24, 58, 153157, 159, 161-162, 171, 188 Kant (Kantian), Immanuel……. 2, 4-5, 27, 29-30, 35-66, 41, 45-47, 49, 50-69, 71, 73-75, 77, 81, 85, 88, 91, 93, 99, 107-109, 125, 130, 191-192, 211, 228 Kymlicka, Will…189, 202 Laches doctrine... 211-212 legal responsibility ………... 3, 8, 1114, 17-18, 23, 163, 227 lex talionis…86, 91-92, 100, 103 Locke (Lockean), John…….. 201, 204, 206, 209-210, 212-213 Lyons, David…………… 44, 184, 188, 209-210, 241 manifest destiny…... 15, 185, 194, 197, 208, 218, 229 Marx (Marxism, Marxian)…. 29-30, 94, 192, 202, 216 Matching Principle of Proportional Punishment… 86, 92, 98, 100 mens rea… 17, 24, 36, 149, 154 mercy……… 2-3, 5, 106-111, 114115, 117, 123-128, 130, 134, 138139, 187, 228 methodological individualism... 166168 moral duty..…………… 52, 112-113, 116, 118-120, 122-123, 127 moral education theory of punishment…. 33-35 moral luck……. 23-24, 26 moral obligation (see moral duty) moral responsibility……….. 3, 5-6, 8, 11-4, 17-22, 24, 26-27, 44-45, 93, 96, 109-110, 122-123, 147, 149, 150-151, 155-157, 159-162, 166167, 227-228 Morris, Herbert... 36-37, 40, 46, 65, 72, 108, 130 Murphy, Jeffrie G………….. 2, 12-13, 27, 33, 37, 44-46, 49-52, 54, 56-60, 62, 72, 94, 107-110, 114-115, 117, 123-127, 144

INDEX Native American ... 7, 15-6, 88, 129, 163, 181, 183-185, 187-224, 228229 Native American holocaust……… 216 Native American Identity …190, 204205 Native American nations…… 181, 185, 189, 194-197, 201, 204-206, 209, 211, 217-224, 228-229 No Native American Concept of Moral Rights Objection……190, 201 Nozick, Robert ………..3, 45, 93, 117, 191, 209, 213 Objection from Historical Complexity…. 190-191, 193, 196 Objection from Historical Progress…….. 197-198, 206 Objection from Inter-Natio n Conquests…… 190, 196-197 Objection from Normative Progress…….. 198, 200 Objection from Social Utility..190, 206-208, 223 Objection from the Indeterminacy of Native American Identity.......... 190, 204-205 Objection to Collective Responsibility 190-191, 193-194, 196, 212 pardon………… 66-68, 108-110 Payne v. Tennessee…….. 145 Pettit, Philip……….. 36, 43, 74-75, 97, 100, 103 Plato…. 33, 93 Principle of Collective Responsibility... 148 Principle of Equality in Proportional Punishment…. 99-100 Principle of Morally Just Acquisitions and Transfers…...….. 184, 191-192, 195-197, 205-207, 210-213, 216217, 219-222, 224 proportional punishment…… 2-5, 8, 23, 37, 40, 60-64, 71, 75-78, 81-100, 103, 105, 109, 129, 131, 133, 137138, 141-143, 146, 175, 178, 186, 221, 228

251 proportionality…… 4-6, 8, 36-37, 6061, 63, 71, 76-78, 83-84, 88-92, 98, 100, 102, 104-105, 127, 131, 133, 138, 140, 142, 146, 175, 219, 22223, 228 Publicity Condition…… 171, 176, 179-180 punishment abolitionism.. 29-34, 38 punishment exclusionism.. 127-129 punishment inclusionism.. 127-129 punishment machine…… 91-92 Punishment of the Innocent Argument…… 43 Punishment-in-Kind Principle of Proportionality………. 89, 92, 98, 100 racism……. 18, 39, 100, 124, 134-135, 141-142, 145, 184, 198, 201, 204, 224, 229 Rawls, John …………... 1, 3, 7, 19, 24, 28, 35-46, 62-64, 71-72, 84, 101, 105, 129, 133, 174, 189, 211 Reiman, Jeffrey... 30, 140-144 Religious Freedom Objection... 190, 208-209 reparations…….. 7, 9, 108, 134, 142, 163, 181, 183-199, 200-202, 204224, 228-229 Reparations Argument.... 187-191, 194, 196 responsibility tout court… 16, 236 Restrictive Principle……. 96, 98, 100 retributivism……… 2-3, 5, 7, 26, 3537, 40-47, 49, 59, 61-63, 68, 71-75, 82, 84-85, 87, 91-92, 97, 100-105, 107-109, 128, 131, 137-139, 227228 right to pardon… 66-68, 108 right to punish……13, 53-54, 62, 66-67, 103 Scope of Responsibility Principle... 23, 25 Sher, George….. 43, 94, 211, 219, 244 Simmons, A. John…..41, 44, 94, 141, 184, 187, 191, 209, 213

252 social utility……….. 4, 31, 35-36, 4243, 46, 49, 54, 56, 71, 73-76, 84, 126, 136-138, 173, 190, 206-208, 220, 223 Socrates …. 41 speciesist……… 90, 140 strict liability….. 13, 16-17, 147-148, 173 Supersession of Historic Injustice Objection…… 190, 213-215 telishment…….. 3, 39, 42 torture……...7, 39, 41, 78, 85-86, 8891, 97, 132, 140-141, 143-144, 221,

INDEX Tuomela, Raimo..... 155-156, 158-159 United States Sentencing Commission… 98 utilitarianism……... 30, 35-37, 40, 4243, 46, 59, 84, 136, 208 vengeance…….. 2-3, 33, 96, 113, 117 vigilantism……. 28, 38-40 voluntary action.. 24, 103 Waldron, Jeremy……….. 44, 187, 202, 209-211, 213-214, 217-218 Wilkins, Burleigh ….. 147, 150, 193, 209