Collective sanctions.

• Author: Levinson, Daryl J.

INTRODUCTION I. COLLECTIVE SANCTIONS, PRIMITIVE AND MODERN A. Groups as Individuals Versus Groups of Individuals in Primitive Law and Norms B. Functional Analogues in Modern Law 1. Vicarious and gatekeeper liability 2. Joint and several liability 3. Corporate liability 4. Insurance II. A FUNCTIONAL ANALYSIS OF COLLECTIVE SANCTIONS A. Groups and Solidarity B. Collective Sanctions C. Leveraging Solidarity 1. Identifying wrongdoers 2. Controlling wrongdoers D. Building Solidarity 1. Excessive control 2. Deviant goals E. Group Composition F. Summary III. APPLICATIONS A. Microcredit B. Criminal Conspiracies C. Suing Government D. International Sanctions E. Political Parties F. Reprisals and Resistance G. Academic Coauthors H. Families I. Discrimination and Assimilation J. Ethnic Conflict K. Team Production CONCLUSION: WHEN IS IT (NOT) WRONG TO PUNISH THE INNOCENT? INTRODUCTION

Around midnight of August 13, 1906, a group of armed men, ten or twenty, ran through the town of Brownsville, Texas, firing their weapons down the streets and into buildings. (1) A police officer on horseback was shot and wounded, and a bartender was killed in the doorway of his saloon. Suspicion immediately fell upon a battalion of black soldiers that had recently been stationed at Fort Brown, on the outskirts of the city. The rioting occurred in a neighborhood adjacent to the enlisted men's barracks; empty shells collected along the rioters' route seemed to have come from Army-issue rifles, and several Brownsville townspeople claimed to have recognized the rioters as black soldiers. As for motive, racial tension between the soldiers and townspeople had been simmering since the battalion arrived. Brownsville residents had greeted the soldiers with Jim Crow restrictions and other gestures of racial hostility. In two cases, white civilians had physically assaulted soldiers, purportedly in retaliation for "disrespectful" behavior. On the day of the shootings, a soldier was accused of attempting to rape a white woman. Based on this evidence. Army investigators were quickly convinced that the rioters were members of the black battalion. (2)

When the soldiers were questioned in an attempt to discover which men were responsible, "the countenance of ... [each] individual being interviewed assumed a wooden, stolid look, and each man positively denied any knowledge in the affair." (3) Unable to identify the guilty soldiers, the Inspector General of the Army wrote a report to President Roosevelt recommending that every member of the battalion be discharged without honor and forever barred from reenlisting or from employment in any civil service job. The Inspector General acknowledged that many men who did not participate in the riot would suffer as a result. Nevertheless, it was his view that, as they "appear to stand together in a determination to resist the detection of the guilty, therefore they should stand together when the penalty falls." (4) The President found the report convincing and ordered his Secretary of War, William Howard Taft, to carry out its conclusion. All of the 167 black soldiers in the battalion, including six Medal of Honor recipients, were dishonorably discharged. (5)

Roosevelt's decision infuriated black communities throughout the nation. (6) Most modern observers will share their outrage. Even if some of the dismissed soldiers were guilty, many people will have the intuitive reaction that group punishment in a case like this is deeply unjust. Certainly in the Brownsville context group punishment reeks of race discrimination. In his 1906 annual message, issued in the midst of the Brownsville controversy, Roosevelt explained to black Americans that they were collectively blamed by white Southerners for the behavior of black criminals (in particular, rapists) and that they should take more responsibility for bringing these criminals to justice. (7) If black individuals could be lumped together as a group for purposes of attributing criminal responsibility and blame, then, we might suspect, so too for purposes of group punishment in the Brownsville case.

Much of our legal and moral thinking about group liability and responsibility is inflected by race and ethnicity. Debates about reparations for slavery, for example, focus on the moral and legal obligations of wrongdoing groups to compensate victim groups, where both groups are defined by race. (8) Racial identity is the essential glue that joins wrongdoers and payers of compensation, as well as victims and beneficiaries, into unified groups for purposes of assessing obligations and desert. The same is true with respect to ethnic and national identity in the context of reparations paid by the U.S. government to Japanese Americans interned during World War II and by Germany to Israel for the Holocaust. Needless to say, there is deep disagreement about the moral significance of the racial, ethnic, or national bonds among individuals that arguably create group responsibility in these cases. (9)

More generally, group liability strikes many as objectionable because it seems to reflect an antiliberal embrace of communal responsibility. Racial essentialism is, in this view, just one (especially pernicious) manifestation of the communalist failure to take individuals seriously as moral agents. Liberal conceptions of morality insist that agency and responsibility be attributed only to individuals, not groups. Group liability will strike liberals as an unfortunate atavism of pre-liberal or primitive societies, which, conventional wisdom holds, were fundamentally communal in both their social organization and their approach to morality. (10) To be sure, in cultures where clans and tribes are the relevant unit of moral agency and blame, group liability will seem natural. In modern, liberal societies, however, where the relevant moral unit is the individual, punishing groups for the misdeeds of individuals will be regarded with deep skepticism. Most modern readers of Genesis will sympathize with Abraham's case to God on behalf of the evil cities of Sodom and Gomorrah: "Will you really sweep away innocent and wicked together? Suppose there are fifty innocent in the city; will you really sweep it away ...?" (11) In taking sides with Abraham, we distinguish ourselves from the ancients. (12)

In light of its associations with racial essentialism and primitive communalism, it is no wonder that group punishment has a dubious reputation. Is there anything at all to be said for a practice that, in our enlightened view, bears the stigma of "punishing the innocent," imposing "guilt by association," or "failing to treat people as individuals"?

This Article argues that the answer is yes. There is another set of reasons for punishing groups that is perfectly consistent with moral and (more generally) methodological individualism, and that should carry no connotations of racialism or communalism. Group members might be punished not because they are deemed collectively responsible for wrongdoing but simply because they are in an advantageous position to identify, monitor, and control responsible individuals, and can be motivated by the threat of sanctions to do so. In Brownsville, after all, the stated goal of group punishment was not to exact retribution from all of the dismissed soldiers, conceived as an undifferentiated collective entity, but rather to motivate them to identify the guilty individuals in their midst.

On this understanding, the imposition of collective sanctions might be justified as an indirect way of controlling individual wrongdoers. (13) The basic strategy is to aim sanctions not at the individual wrongdoer but at some target group that is well-positioned to monitor and control him. We might say that the sanctioner effectively delegates the deterrence function to this group.

Conceived in this way, collective sanctions should seem at least somewhat familiar: Vicarious liability rules in various areas of law are commonly understood to rely on the same functional mechanism, inasmuch as principals are sanctioned in order to motivate them to monitor and control misbehaving agents. (14) Vicarious liability might be understood as a special type of collective sanction regime, characterized by a target group consisting of (only) two individuals bound together in a contractual relationship. (15)

But the regulatory strategy of delegating deterrence through collective sanctions is potentially useful, and is in fact used, in a much broader array of situations than just this. Legal systems also impose collective liability on shareholders for the torts and crimes of corporations, on co-conspirators for one another's criminal acts, and on polluters for the costs of cleaning up toxic waste. Governments inflict international sanctions on the populations of other states in response to the policies of their leaders and on innocent civilians in retaliation for acts of terrorism or resistance. Voters collectively sanction politicians by voting against political parties. Economic arrangements such as insurance, partnerships, and employee stock ownership plans focus economic rewards and punishments on groups instead of individuals. Just as parents sometimes punish all their children when one misbehaves, families suffer collective reputational sanctions for the failings of individual black sheep. One of the purposes of this Article is to assimilate these and other institutional arrangements in law, economics, politics, and social norms under the common conceptual framework of collective sanctions.

Broadening our focus from vicarious liability to the full range of collective sanctions should help us to appreciate that delegated deterrence can be more than just a second-best solution in the idiosyncratic case where direct, individual liability fails. Typically, the possibility of displacing sanctions to a different individual or group only becomes salient where individual sanctions are clearly...