3.2 Clutching
The first requirement for legal punishment is the existence of laws; the next stage of the process is the apprehension of suspects, which may involve, among other things, a police investigation, surveillance, a stop-and-frisk, arrest, and pre-trial detention. Various issues emerge at this stage of the process, the stage I call "clutching."[18] Clutching is a metaphor that suggests a taking hold by some power. Clutching need not always be seen as a Leviathan's jaws closing on its victim; it
[17] Richard Epstein, for example, drawing on Locke's view that the chief end of joining political society is to preserve our property, argues that the police power is legitimately invoked solely "to protect individual liberty and private property against all manifestations of force and fraud." No other intrusion by the state is justified (Richard Epstein, Takings: Private Property and the Power of Eminent Domain [Cambridge, Mass.: Harvard University Press, 1985], p. 112; cf. his "A Theory of Strict Liability and Tort," Journal of Legal Studies , vol. 2 [1973]). Epstein concludes from his extreme Lockean assumption that "[all] regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable by the state" (Takings , p. 95).
[18] Joel Feinberg uses the phrase in his essay "Crime, Clutch-ability, and Individuated Treatment," in Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970). Feinberg speaks of the criminal trial as a preliminary hearing "to establish whether the state has the right to get a defendant in its clutches" (p. 265). My use of the term differs: the state may take suspects into its clutches prior to trial and on the basis of reasonable suspicion.
can be as relatively harmless as being issued a parking ticket. But it reflects a potentially awesome power—think of the metal claws some municipalities lock onto our automobile tires if we don't pay our parking fine. The image of clutching makes present to us the problematic character of this phase of legal punishment: who are you, to take hold of me?
3.2.1 Pre-trial Detention
Clutching is connected to punishment in two ways. Almost everyone who is legally punished was at one point clutched—clutching is a precondition of legal punishment. But there is also a sense in which the act of clutching in itself constitutes punishment: for example, we often count time spent in pre-trial detention toward the serving of a convicted suspect's term of sentence. We might disagree over this latter point, that clutching itself constitutes punishment. Hobbes argues that what we call pre-trial detention is by definition not punishment, "because no man is supposed to be Punisht, before he be Judicially heard, and declared guilty."[19] But saying it isn't punishment doesn't mean it's not. The constitutional status of pre-trial detention—whether it counts as punishment—is contested. "Due process requires that a pretrial detainee not be punished."[20] In deciding whether pre-trial detention counts as punishment, "a court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose."[21] In Schall v. Martin a majority of the Supreme Court ruled that the conditions of confinement of pre-trial detention (in this case, of juveniles) reflect the "regulatory" purpose of the state, where regulation is distinguished from punishment.[22] But Justice Marshall dissented:
[The majority's] characterization of preventive detention as merely a transfer of custody from a parent or guardian
[19] Thomas Hobbes, Leviathan , ed. Michael Oakeshott (New York: Collier Books, 1962), ch. 28, p. 233.
[20] Bell v. Wolfish , 441 U.S. 520 (1978) at 535, note 16.
[21] Ibid., at 538.
[22] Schall v. Martin , 467 U.S. 253 (1984), pp. 269–70.
to the State is difficult to take seriously. Surely there is a qualitative difference between imprisonment and the condition of being subject to the supervision and control of an adult who has one's best interests at heart.[23]
Marshall also noted that the pre-trial detainee "suffers stigmatization and severe limitation of his freedom of movement."[24]
Marshall's suggestion that pre-trial detention is really punishment is part of a retributive criticism of this practice. In this view, we punish someone justly only when he is guilty of committing a wrong, and pre-trial detention violates this principle. Ronald Dworkin, for example, notes that the principle that a man is innocent until proven guilty accounts for "why it seems wrong to imprison a man awaiting trial on the basis of a prediction that he might commit further crimes if released on bail."[25]
It's important to distinguish retributivist objections to the very idea of pre-trial detention from retributivist objections to pre-trial detention that is punitive. Any retributivist at all aware that the ideals of justice must be realized by some process would have to acknowledge the necessity of detaining, at some point prior to a formal adjudication of guilt, a person suspected of committing a crime.[26] Andrew von Hirsch and his colleagues argue that
[a] distinction should be observed between the system of sanctions (whose severity should be based on desert) and the sanctions necessary to maintain that system (which have to deter sufficiently to keep the system operating).
Suppose one takes the position that there should be no pretrial detention, because a person does not deserve to be deprived of his liberty unless found guilty of an offense.
[23] Ibid., pp. 289–90.
[24] Ibid., p. 291.
[25] Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978), p. 13.
[26] The Supreme Court recognizes that the government may do this: see Gerstein v. Pugh , 420 U.S. 103 (1975), at 111–14.
To preserve such a rule, however, it may still be necessary to make at least one exception—for absconders who might otherwise simply absent themselves from trial for any misdeed with which they had been charged.[27]
The Supreme Court argues, along the same lines as von Hirsch, that clutching, though it may violate retributive or desert-based principles, is justified as a "legitimate state objective … of protecting … society from the hazards of pretrial crime."[28] The retributivist might object to detention that is based on a prediction of a future violation of the law; on the other hand, the retributivist might recognize that to attain the justice she values requires certain institutions, and that to maintain these institutions, retributive ideals may have to be sacrificed to some extent. If we are to punish those deserving of society's condemnation, we must clutch, and we can clutch only suspects, not convicted criminals; that is simply a fact about our institutions. The retributivist who acknowledges the institutional requirements for attaining the retributive ideal might even recognize that as citizens we each have an obligation to let ourselves be clutched if we engage in an activity that might be presumed by a reasonable person to violate the criminal law. We might regard this duty as being just so long as we recognize as legitimate the state's authority to punish. Some of us won't recognize that authority, especially when clutching is carried out in an arbitrary manner—a distinct possibility, given the discretion accorded to the police and prosecutor.[29] Some will see clutching as coercion because they challenge the state's role as parens patriae or protector of our interests. In other words, when our particular concern is with
[27] Andrew von Hirsch, Doing Justice: The Choice of Punishments , Report of the Committee for the Study of Incarceration (Westford, Mass.: Northeastern University Press, 1986), pp. 130–31, note. Von Hirsch was executive director of the Committee for the Study of Incarceration and principal author of this report.
[28] Schall v. Martin , 467 U.S. 253 (1984), at 274. This case is specifically about pre-trial detention of juveniles, and the second ellipsis replaces the original phrase "the juvenile and."
[29] Hart, "The Aims of the Criminal Law," p. 429.
the question "Who are you to punish?" our answer, as when we considered questions associated with lawmaking, will turn, not necessarily on utilitarian or retributive principles, but on our theory of legitimate state authority.
3.2.2 Political Crime
To justify the practice of clutching is to justify the authority of the state that clutches. In France in the 1830s the Fourierists challenged that authority. Some Fourierists claimed that "crime constitutes a political instrument that could prove as precious for the liberation of our society as it has been for the emancipation of the Negroes."[30] To these Fourierists some crimes, rather than being wrongs, were actions taken in the name of right and justice. Recently, in our own country, Raymond Luc Levasseur, a defendant accused of sedition under the Conspiracy Act of 1861, called himself a revolutionary who has vowed armed resistance to racism, South African apartheid, and "capitalist- backed wars," and he asked his jury: "Who are the real criminals? Those who oppose racist acts in South Africa or those who support government interests in South Africa?"[31]
Some people do not accept the state as "we"; to them, punishment is coercion of "us" by "them." These people question the justice of state punishment and the wrongness of crime. Is it just to punish those who are politically and socially excluded from, or oppressed and exploited by, the society whose values the criminal law upholds?
To some in a society, right, declared by the laws of the state and enforced by its police, does not seem right; and committing what the state regards as a wrong does not seem wrong. To the Fourierists, to Levasseur, to the blacks in Miami rioting because "They get everything, Nothing for us,"[32] what the state calls a crime may be an ultimately just and liberating act. To
[30] La Phalange , January 10, 1837; cited by Michel Foucault in Discipline and Punish: The Birth of the Prison , trans. Alan Sheridan (1975; New York: Vintage, 1979), p. 289.
[31] New York Times , January 12, 1989.
[32] New York Times , January 18, 1989. See also my discussion in chapter 1, section 1.
these people, state punishment is not the vindication of right but a political means of repression masked as legal retribution.
We might distinguish from ordinary criminals the excluded, marginal, rebellious, and revolutionary who commit crimes in a society they regard as unjust, by calling them political criminals, and the actions they commit, political crimes. We are then faced with the question of the legitimacy of punishing political criminals.
The concept of political crime is an elusive one that has received some, but not enough, attention. Stephen Schafer distinguishes "ordinary" from "political" crimes but thinks that really the two blur.[33] Schafer suggests that every crime can be viewed as a challenge to the political system:
All social systems design one or another kind of social order, and all construct norms and rules to ensure the effective operation of the particular society. The violation of any of these norms and rules, to one degree or another, endangers, the smooth operation of the particular political order.[34]
Shoplifting and robbery, for example, are criminal attacks against the value attached to private property, and even abortion and homosexuality are assaults only against single issues of the political power's ideology.[35]
Of course, not all criminals intend by their act to attack a particular "political power's ideology." Schafer distinguishes genuine from "pseudo" political criminals. The genuine political criminal is "inadequately socialized" and
is ready to violate [the] dominating morality, even at the price of suffering the sanction, without being capable of developing regret, remorse, or the feeling of guilt, and
[33] Stephen Schafer, The Political Criminal. The Problem of Morality and Crime (New York: Free Press, 1974), p. 27.
[34] Ibid., p. 28.
[35] Ibid., p. 29.
with the capability of being convinced that his immoral conduct is moral.[36]
Borrowing Gustav Radbruch's term (Überzeugungsverbrecher, which Schafer translates as "the convictional criminal," he writes:
The political criminal is "convinced" about the truth and justification of his own beliefs…. This element of "conviction" may serve as a distinguishing factor in discriminating the political criminal from the ordinary offender.[37]
The common criminal "almost always acts to fulfill his ego or personal interests,"[38] whereas the convictional criminal has an "altruistic-communal vision."[39]
Another theorist of political crime also distinguishes "conventional" from "political" crimes. In Austin Turk's view, the conventional criminal regards his polity's authority as essentially legitimate. But political criminals believe "that their life chances are excessively threatened or reduced by the actions (or inactions) of the authorities."
[T]hey may challenge the authorities … by spontaneous or calculated, organized or unorganized dissent, evasion, disobedience, or violence. Such direct challenges to authority will at some point—depending upon the seriousness of the challenge as perceived and interpreted by the authorities—become intolerable enough to them to be either openly or "operationally" defined as political crimes .[40]
Turk cites as examples of political crimes the United Auto Workers' sit-down strike of 1936–1937 (charges included kidnapping
[36] Ibid., p. 113.
[37] Ibid., pp. 145–46.
[38] Ibid.
[39] Ibid., p. 148; cf. p. 112.
[40] Austin Turk, Political Criminality: The Defiance and Defense of Authority , vol. 136, Sage Library of Social Research (Beverly Hills: Sage, 1982), p. 34.
General Motors plant guards, malicious destruction of property while rioting, criminal syndicalism, inciting to riot, and violating injunctions against picketing); violations of the 1723 Black Act (which mandated the death penalty for "blacking" one's face as a disguise in order to raid the gentry's property); and violations of the black codes passed in several Southern states in 1865–1867 and of the Jim Crow laws of the 1880s, which mandated segregation.[41]
With political crime the concern is not that of our philosopher. Those who view punishment as political coercion are bothered by the hurt punishment brings; but insofar as they are making an argument against punishing political crimes they oppose this hurt, not because they hold to the principle that it is never right to harm another, but because they believe that in some cases the hurt inflicted on the criminal by the state is unjust. Our philosopher is committed to opposing the spanking of children, but those opposed to punishment of political crimes are not necessarily so committed.
The problem of political crime—whether it is just to punish someone who acts in protest against the state—does not often arise within the practice of legal punishment. Occasionally it does. In September 1933, a large number of unemployed people marched to the Red Cross commissary in the city of Anacortes, Washington, and demanded a greater allowance of flour. Having been refused, the crowd left and entered the Skaggs grocery store, where many helped themselves to groceries without paying for them. Some were arrested and convicted
[41] Ibid., pp. 43–48. Turk cites favorably the work of another theorist of political criminals who gives as specific examples Stokely Carmichael, Daniel Ellsberg, Mark Rudd, and Ulrike Meinhof and Andreas Baader: Richard Moran, "Political Crime," Ph.D. dissertation, University of Pennsylvania, 1974, pp. 139–40, in Turk, Political Criminality , pp. 92–93. Also on the concept of political crime, see David Jones, Crime, Protest, Community and Police in ]9th Century Britain (London: Routledge and Kegan Paul, 1982); and the works mentioned in a footnote listing those who have attempted to circumscribe what political crime means, in Schafer, The Political Criminal , pp. 10–11, note 5.
of rioting. The conviction was appealed, and the case was eventually heard by the Supreme Court of Washington. The appellants offered to prove the conditions of poverty and want among the unemployed of Anacortes and Skagit county, in order to show a motive and justification for the raid. One appellant argued:
The groceries were taken, of course, but remember this; there is a higher law that says that a person holds his responsibility to himself first. There is a law of self-preservation, and how can you expect a man to go against the most fundamental urges—the most prominent is the quest for food. Even the cave man in days gone by must have food.[42]
In another case, the defendants were convicted of depredation of government property when they threw or poured blood and ashes on the walls and ceilings of the Pentagon in a demonstration against the design and possession of nuclear weapons. The defendants justified their actions as a "necessary defense to illegal possession by the U.S. of nuclear weapons," but were unsuccessful. The Court of Appeals affirmed the conviction.[43] In both cases judges were asked to consider the justice of punishment for actions committed in the name of a "higher" law. In both cases state punishment was deemed just.
In practice, when the question of political crime arises the issue gets transformed from what it is originally—a question of the legitimacy of state punishment—to the question of whether the defendant's action was "justified." In criminal-law doctrine, justification is distinguished from excuse. The difference is the same as that between being forgivably wrong (excuse) and being right (justified). When a person has acted
[42] State v. Moe , 24 Pac. 2d 638 (1933). The court ruled that "economic necessity has never been accepted as a defense to a criminal charge…. In larceny cases [it] is frequently invoked in mitigation of punishment, but has never been recognized as a defense."
[43] .U.S. v. Cassidy , 616 F. 2d 101 (1979).
with justification he has no need of forgiveness.[44] If someone can show he committed an otherwise criminal act out of "necessity," his act is "justified" and is not considered a wrong:
In a plea of necessity, the defendant admits performing the act charged and admits the act technically violated a law. The defendant contends that the conduct was justified because it was the only feasible way to avoid a greater evil and that it would be unjust to apply the law in the particular case.[45]
In the case involving defacement of the Pentagon, the Court of Appeals based its decision on whether the defendants' defense met the standards for the justification defense of necessity:
Even if possession of nuclear weapons is illegal as defendants contend … the necessity defense is inapplicable. As sought to be applied here, essential elements of the defense are that defendants must have reasonably believed that their action was necessary to avoid an imminent threatened harm, that there are no other adequate means except those which were employed to avoid the threatened harm, and that a direct causal relationship may be reasonably anticipated baween the action taken and the avoidance of the harm.[46]
[44] Edward Arnolds and Norman Garland, "The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil," Journal of Criminal Law and Criminology , vol. 65, no. 3 (1974), pp. 289–90.
[45] Ibid., p. 294. An example of a successful necessity defense is U.S. v. Ashton , 24 F. Cas. 873 (C.C.D. Mass. 1834): sailors charged with mutiny justified their refusal to obey the captain's orders on the grounds that the ship was not seaworthy. The court held that if the ship was unseaworthy the conduct was not criminal. State v. Moe is an example of a failed necessity defense. Another is Ex parte Milligan , 72 U.S. (4 Wall.) 2 (1866): time of war doesn't justify trying a civilian before a military tribunal, because he could be tried in accordance with law at a later time. Cf. Arnolds and Garland, "The Defense of Necessity," p. 292.
[46] U.S. v. Cassidy , 616 F. 2d 101, 102. See also U.S. v. Simpson , 460 F. 2d 515 (1972). Simpson entered the Local Board of the Selective Service System in San Jose, California, in 1970, opened a file drawer, doused the contents with gasoline, and set the files ablaze. He was arrested, indicted, and convicted of destroying government property and interfering with the Selective Service System. Simpson sought to introduce evidence that his actions were done to avert greater evil in the war zone in Vietnam. The trial judge and the Court of Appeals rejected this argument. The higher court ruled that an essential element of the defense is a reasonable anticipation of a direct causal relationship between the otherwise criminal act and the avoidance of harm. In this case, the court ruled, the war would obviously continue without regard to Simpson's action (Arnolds and Garland, "The Defense of Necessity," pp. 299–300).
By having its judges apply standards within the practice concerning justification, the legal system avoids messy political issues.[47]
The question of political crime, then, seems to be a topic, not for legal practitioners, but for theorists who stand outside the practice. But although political crime has not been an especially urgent issue within the practice, some theorists have suggested that we treat political criminals differently from others. For example, Gustav Radbruch suggests that "criminals by conviction" (Überzeugungsverbrecher ) are not "real", criminals and should be punished less harshly than is usual.[48] In the jurisprudential literature in our own country, the problem of political crime is occasionally brought up in the generalized form: can there be just deserts in an unjust society? For example, in a recent study of the justice of incarceration Andrew von Hirsch and his colleagues ask:
Suppose that the laws serve chiefly the interests of a ruling class at the expense of others … in what sense, then,
[47] Assuming that the judge permits the defense of necessity, which is often not the case. In U.S. v. Berrigan , 283 F. Supp. 336 (1968), at 339, the judge declared that the defense is outmoded in modern society. Also on the defense of necessity in the criminal law, see Comment, "Necessity Defined: A New Role in the Criminal Defense System," U.C.L.A. Law Review , vol. 29 (1981); and Rollin M. Perkins, "Impelled Perpetration Restated," Hastings Law Journal , vol. 33 (November 1981).
[48] Gustav Radbruch, "Die Überzeugungsverbrecher," in Zeitschrift für die gesamte Strafrechtswissenschaft , vol. 44 (Berlin: Walter de Grunter, 1924), pp. 34–38.
are violations of [these] law[s] moral wrongs that deserve to be condemned through punishment?[49]
They note that some theorists suggest that those who live on the margin of society and violate its laws have reduced culpability. H. L. A. Hart, for example, writes that in general a violator may be deemed less culpable if at the time of the offense he found himself, through no fault of his own, in a situation where "conformity … was a matter of special difficulty for him as compared with … persons normally placed." However, von Hirsch and his colleagues conclude that it is not the role of the judge to decide "whether the defendant was sufficiently 'deprived' to deserve less punishment," for the judge's "judgment would tend to be strongly colored by his own social outlook. Perhaps it is asking too much of judges to resolve these questions dispassionately."[50]
Another way to take into account the special nature of political crimes would be to reinvoke the principle of jury nullification. Typically juries are bound by the instruction of judges; they are told the relevant law and asked to apply it to what they determine to be the facts of the case. As Arnolds and Garland explain, "[T]he doctrine of jury nullification holds that jurors have the right to set aside the instructions of the judge," in other words, to decide both the law and facts on the basis of conscience.[51] In Sparf and Hanson v. U.S. this principle was discredited:
Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves.[52]
[49] Von Hirsch, Doing Justice , p. 144.
[50] Ibid., p. 146. The quotation from Hart is taken from ibid., pp. 145–46.
[51] Arnolds and Garland, "The Defense of Necessity," p. 297.
[52] Sparf and Hanson v. U.S. , 35 156 U.S. 51 (1895), at 101–2, cited in Arnolds and Garland, "The Defense of Necessity," p. 297.
Present practice leaves no room for informing the jurors of their power to bring in a verdict on the basis not of the law but of their own conception of right.[53] But the issue remains, and one practical formulation of the problem of political crime is whether we should allow jury nullification.
Thinking about political crime takes us to the very core of traditional concerns of political theorists, especially those of the seventeenth and eighteenth centuries—questions of obligation and legitimacy: Who is obligated to obey the state, and to what extent? Under what conditions can we speak of the laws of the state as right, and disobedience as wrong? These questions we think about mainly when we are concerned with the justification of the practice as a whole, when we are outside the practice deciding whether to assume a position within. But these questions are occasionally also of importance to the practitioner. That a coherent argument can be made against the punishment of those who commit political crimes (which is not to say that the argument is of much practical significance) suggests the importance of the retributive account of legal punishment. The retributivist sees the point of punishment as the meting out of just deserts, as the expression of society's condemnation of acts that violate a shared sense of right. The force of the argument against punishing political criminals derives from this retributive understanding of what punishment means: to punish the political criminal,the person on the margin who is excluded by society, who does not regard its laws as her laws, who had no say in and isn't served by those laws, is not really to punish but to oppress, to engage in some other practice. It is hard to see how the utilitarian could feel the force of this argument. The utilitarian might be outraged by punishment of a person accused of diminishing social utility who had in fact augmented social utility. But such a characterization of, for example, the outrage among the blacks in Miami in reaction to the actions of a largely white and Hispanic police force would be a feeble caricature.
[53] Cf. Arnolds and Garland, "The Defense of Necessity," p. 297.
In practice there would be many difficulties in excluding punishment of political criminals: How would we decide that a looter violated laws protecting property as a protest against a society he regards as unjust, and not out of personal greed?[54] How would we make an objective determination regarding whether a person is excluded from a society, so that its laws aren't her laws? What would be the consequences for the legal system of allowing the defense of necessity, or of jury nullification? But that a coherent argument can be made at all against punishing political criminals suggests how indispensable the retributive account of legal punishment is.