Dignity and desert in punishment theory.

• Author: Huigens, Kyron

Once upon a time, human dignity played a large role in the theory of punishment. Then punishment fell victim, both in theory and in practice, to the central philosophical mistake of the twentieth-century. (1) A criminal justice system based on human dignity and just deserts was replaced by a system of quarantine. We were left with an enormous state apparatus devoted to the efficient incapacitation of undesirable people. This regime still goes by the name of the criminal justice system, but it now has little to do with crime or justice, because the quarantine of people deemed likely to decrease social welfare has a completely different provenance from punishment. (2) Both the putative necessity and the specious justification of quarantine originate, in part, in a mistaken conception of value and normativity.

1. A SHORT HISTORY OF THE DEVOLUTION FROM PUNISHMENT TO QUARANTINE

   Fifty years ago, the principal preoccupation of punishment theorists was the formulation of a defense against the scapegoating objection to the so-called deterrence theory of punishment. (3) The scapegoating objection points out that if punishment is justified by deterrence, or by any other beneficial consequences, then a net gain in good consequences should be pursued regardless of traditional notions of guilt and desert. If a quick conviction and hanging will avoid mob violence in a town upset by a heinous crime, then the authorities should quickly convict and hang someone. Anyone will do, provided that the person hanged can plausibly be portrayed as the perpetrator. Neither finding the true perpetrator nor determining an appropriate sentence should matter if this "punishment" is justified by a net gain in social welfare.

   John Rawls, H.L.A. Hart, and other philosophers arrived at an answer to this objection, seemingly simultaneously, in the 1950s. (4) Justifying the overall practice of legal punishment with a consequentialist argument does not imply that one could, would, or should justify punishment in individual cases with that same consequentialist argument. Consequentialism morally justifies the system of legal punishments, but justification in the individual case is never more than a legal justification within the terms of that legal system. Furthermore, at the level of the punishment system, consequentialist moral theory would not sanction the regular opportunistic punishment of scapegoats because the uncertainty and insecurity engendered by such a practice would outweigh any isolated gains in social welfare. Thus, the inference that consequentialism justifies the punishment of scapegoats is a category error: it states a purported moral justification where only a legal justification is possible.

   This solution, focusing on the punishment system instead of the individual case of punishment, has its own weaknesses, (5) and better defenses of consequentialism exist. (6) For present purposes, however, the interesting aspect of this argument from a half-century ago is its assumption that any theory of punishment that authorizes scapegoating must be incorrect. After all, anyone willing to accept the danger of scapegoating for the sake of increased social welfare would be unmoved by the objection. Its force rests entirely on the notion that to punish the innocent is wrong, no matter how great the compensating gains in welfare might be. That is, the scapegoating objection appeals to non-consequential values such as desert and human dignity.

   A similar appeal lies at the center of another mid-century argument. Lady Barbara Wootton famously argued that the notions of crime and punishment ought to be abjured generally in favor of a medical approach to anti-social conduct. (7) Sanford Kadish denounced this proposal as incompatible with human dignity (8). In Herbert Morris's terms, the criminal has a right to be punished, because to do anything else would be to treat him as something less than an autonomous, responsible moral agent. (9) However, this therapeutic approach to crime is paternalistic: it infantalizes where we ought to insist on adult accountability. To treat an offender as a patient is to treat him as an object instead of a subject, and to fail to accord him the respect of assuming that his choices and decisions are his own. Of course, some have argued that the therapeutic approach, as a practical matter, would not reduce crime, (10) but it is more significant for present purposes that Kadish's and Morris's powerful arguments were essentially non-consequentialist in their contention that the treatment of criminal wrongdoing as pathology was uniquely degrading to human dignity in a way that punishment, no matter how harsh, could never be.

   Fifty years later, scapegoating and human degradation are now routinely accepted. For example, the most powerful argument against the death penalty has always been that it is a scapegoating punishment. Given that the processes of crime detection and criminal adjudication are imperfect, some number of innocent people inevitably will be convicted and punished. Where the death penalty is an available punishment, its availability is purchased at the cost of killing many people who do not deserve to die. Accordingly, we are in roughly the same position that we would be if we were blessed with an infallible criminal justice system and also conducted a national lottery that randomly selected innocent citizens to be executed along with the criminals. The sole difference between this hypothetical world and the real world is that the execution of lottery "winners" in the hypothetical world would not be necessary in order to carry out executions, whereas in the real world, the execution of innocent people is necessary (albeit regrettable) if the death penalty is to serve as an effective deterrent to crime. If this purported necessity is premised on a deterrence rationale, it is morally indistinguishable from scapegoating. (11) The assumption is that the criminal justice system can and should achieve an increase in social welfare by means of the execution of innocent people. Furthermore, the public accepts this purported necessity. Fifty years ago, we executed comparatively few people and had no idea how many of those were actually innocent. (12) Today, we possess sufficient evidence to calculate a relatively precise error rate, (13) but the death penalty remains an overwhelmingly popular feature of the criminal justice system. (14)

   Our tolerance for degradation via quarantine extends from the obvious, such as the appalling conditions in prisons (15) and juvenile detention facilities, (16) to the more subtle and insidious practice of pseudo-commitment for neither crime nor insanity. In sixteen states, a person who has completed his sentence for a sexual offense may be incarcerated indefinitely, on the ground that he is a "mentally abnormal 'sexually violent predator." (17) Nothing in these statutory schemes fits with society's longstanding definitions of guilt and responsibility. Those who are so detained are sufficiently rational to have been held responsible for a crime, rather than being acquitted on grounds of insanity. After they finish their sentences, they continue to be held under a procedure that resembles ordinary civil commitment. Yet this detention is not an ordinary civil commitment, because the necessary condition of civil commitment--mental irresponsibility--has not been shown. Indeed, it almost certainly could not be shown, because the criminal conviction and continued imprisonment for that conviction suppose that the offender is mentally responsible. (18) The Supreme Court has upheld pseudo-commitment schemes on the condition that the states require (generally) and make (in individual cases) a showing that the offender has "serious difficulty in controlling behavior." (19) But as Stephen Morse has persuasively argued for years, "control" is incoherent as a condition of responsibility. (20) Indeed, the incoherence of lack of control" as an excusing condition is what led some of these same states to curtail the insanity defense by eliminating the defendant's inability to comply with the law as an alternative ground for that defense. (21) Accordingly, a mere lack of control on the part of a sex offender cannot justify the preemptive denial of liberty to him if he is also a responsible moral agent. States that enforce these statutes are engaged in pure preventive detention, or quarantine. (22) Mandatory minimum and three strikes sentencing schemes, as well as other determinate sentences that bear no rational relationship to individual desert, are likewise quarantine measures--both more direct and less obvious in their operation than pseudo-commitment schemes.

   These quarantine schemes are often incorrectly described as triumphs of retributivism in punishment. (23) In fact, they are triumphs of a particularly crude form of consequentialism. (24) The answer that Rawls, Hart, and others formulated to the scapegoating objection was a sophisticated rule-consequentialism. Fifty years later, the consequentialist justification for incarceration has devolved into a crude act consequentialism that authorizes the indefinite detention of anyone deemed likely to detract from social welfare in the future. The justification for California's three strikes scheme offered by Secretary of State Bill Jones provides a stark example: "By carefully targeting the small percentage of criminals most likely to commit the majority of California's crimes, Three Strikes has had a maximum impact on the crime rate by keeping the worst of repeat offenders incarcerated." (25) The fact that those future crimes have not yet been committed and that a life sentence is often manifestly disproportionate to the specific crime committed troubles Mr. Jones not at all. "The simple goal of Three Strikes is public safety. It is far better, for example, to remove a child molester from the streets for the commission of a so-called...