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Retributive Immanent Criticism of Legal Punishment

1. An Internal, Discriminating Approach to Legal Punishment

In this chapter we take an internal approach to legal punishment. Having attained some distance in reflecting upon theories of why we have the practice at all, now we step inside the practice, both to see whether the utilitarian or the retributive theory offers the better account of the actual practice and to criticize aspects of, or resolve issues raised by, the practice by appealing to the principle we think underlies the practice as a whole.

Legal punishment is a complex practice. It consists of various subpractices: the making of laws the violation of which merits punishment; the arrest and pre-trial detention of those suspected of violating those laws—what I call clutching; the determination of a defendant's guilt; the sentencing of the criminal; and the infliction of punishment upon the convicted criminal. The first subpractice, lawmaking, produces laws that apply to "persons," who, if thought to have violated a law, become "suspects" to be clutched; once clutched, suspects become "defendants," who go through a process to determine

whether they are guilty; if convicted, the defendant becomes a "criminal" and, if sentenced to prison, a "convict." Each subpractice has meaning by virtue of its being part of the practice as a whole, just as the meaning of each term—person, suspect, defendant, criminal, convict—is determined by contrasting it with the others: to be a defendant is no longer to be a suspect or a mere person; to be a convict presupposes that one is a criminal, which presupposes that one was a defendant and, before that, a suspect. These facts reveal the continuity among subpractices; they indicate how the subpractices are connected as parts of a single, complex practice. In the previous chapters we were concerned with the general question, why punish? In this chapter our concern is with particular questions that emerge within each subpractice: why punish for this ? (lawmaking subpractice); on what grounds may you judge and punish me? (clutching); why punish her for this (determination of guilt); why punish her in this way ? (sentencing and infliction of punishment). Take a typical response a philosopher might give to the general question:

Philosopher: "Why punish? We shouldn't! The practice of punishing people is absurd. Inflicting harm on others is barbaric, something we should be above. Perhaps this moral evil would be justified if it did some good, but in fact punishment only makes worse the problem it is supposed to solve. When we send criminals to prison not only do we breed resentment in them, but the prisoner makes new connections and learns new techniques from other criminals so that he comes out a better criminal. At the very least, to punish is to violate the principle that you should not try to treat a patient unless you know you can make him better."

Our philosopher is making some very good points, but is he giving a convincing argument against legal punishment? Not at all. He is making what is essentially an objection to ways we inflict punishment (pain, prison). If he draws the

conclusion that we should no longer have the practice of legal punishment, then we can expect (and I suspect we will agree with) the following response:

Practitioner: "So what are you suggesting? That we let people commit rape and murder and theft? That we decriminalize all dangerous and morally reprehensible actions? That we abolish the police, shut down our criminal courts, jails, and prisons, and disband our parole boards? You may choose to live in such a society, but not me; it is you who proposes the absurdity."

Our practitioner is pointing out that inflicting punishment, against which the philosopher speaks, is but one part of the practice of legal punishment, and that there is something terribly wrong with the suggestion that we abolish the whole practice because of objections to one part of it.

In this chapter we shall take a discriminating approach to the practice of legal punishment. We shall make explicit what is implicit in the argument of our practitioner: that the infliction of pain is one aspect, or subpractice, of the practice of legal punishment, and that to justify, or criticize, a subpractice is not to justify, or criticize, the whole practice. Our philosopher may be right that our manner of inflicting punishment is barbaric and that we should stop it. But does it follow that because we go about punishing in an objectionable way, we should abolish the practice of legal punishment—criminal laws, police, jury system, parole boards included? If our philosopher is not intending radically to challenge our whole system of law and enforcement mechanisms, but instead is expressing moral outrage against inflicting pain, then by taking a discriminating approach we can eliminate the pointless argument between our philosopher and our practitioner, and perhaps get them working together on the genuine problem of how we should inflict punishment, as opposed to whether in general we should punish.

2. Immanent Criticism in a Complex Practice

The immanent critic is committed to applying the principles and standards immanent in a practice, or an interpretation of the purpose of the practice, in justifying or criticizing actions that are part of the practice. The immanent critic believes that the way we ought to practice is determined by the way we do practice, by the practice's implicit ideals. The immanent critic can be critical because actual practice often diverges from these implicit principles and ideals. The immanent critic of legal punishment answers particular questions, such as what should be made criminal, or to what standard of accountability we should hold defendants, or what level of sentencing is appropriate, by appealing to the purpose of the practice as a whole. The immanent critic still has to confront the radical critic, who holds that the practice is bad root and branch and who therefore is not satisfied with appeals to principles immanent in the practice, as well as those who don't see a need to act according to any principles and prefer simply to muddle through.^[1] But with this done, it might seem that the immanent critic, with principle in hand, could offer clear guidance to prosecutors, trial judges, sentencing commission members, and other practitioners. It would be nice if things were so simple. But once we accept immanent criticism as a plausible and even an attractive strategy, we still must face three further complications to applying immanent criticism to legal punishment, complications which we shall address in both this and the following chapter.

First, we disagree about the principles immanent in the practice of legal punishment. As we've seen in the previous chapter, some think the principle is utility, others, retribution,

[1] In chapter 2 I responded to the objections of the radical critic; I don't explicitly address the latter objection, primarily because to do so adequately would entail considerable discussion of the nature of the objection, and this would take us in a direction I don't feel compelled to go, given that my concern is with justifications or reasoned arguments.

and both sides' claims have merit. Some features of the actual practice accord unambiguously only with the principle of utility, and others only with the principle of retribution. As we shall see in this chapter, the immanent critic committed to one principle (utility or retribution) will recommend an action precisely the opposite of that recommended by the immanent critic committed to the other. In this chapter I shall defend the retributive account, arguing that it better captures the ideals at the core of punishment and provides the standards by which we can criticize the actual practice. At first my defense can rest only on an appeal to ordinary language, to our understanding of the word "punish" and the concept of punishment—an appeal outlined in the previous chapter.^[2] Eventually I shall defend retributivism by arguing that it better accounts for more of the features of the practice of legal punishment, but this I can do only as we take up more and more of these features.^[3] In the final chapter, however, I shall suggest that legal punishment is an essentially contested practice: both utility and retribution are principles immanent in the practice. In the final chapter I shall have to consider the problem of how one can be a retributive (or, for that matter, a utilitarian) immanent critic of a practice acknowledged to be essentially contested.

A second difficulty with immanent criticism of legal punishment arises because legal punishment is a complex practice, consisting of subpractices some of which we might want

[2] See chapter 3, section 3.

[3] The twofold task of this chapter—both defending retribution as the best account of why we do punish, and using the retributive principle to criticize the practice immanently—creates some logistical difficulties. How can I use retribution to criticize or justify features of the practice, while at the same time defend retribution by arguing that it accounts better for why we punish? If the features of actual practice are the "data" that (dis)confirm the retributive theory, how can I use the theory to discredit some of the data (i.e., by arguing that some features ought not to be part of the practice)? To avoid this catch-22, we have to see that immanent criticism is dialectical: it depends on a give and take between the theory and the "data" for which the theory is supposed to account.

to regard as autonomous, as practices in their own right. When justifying an action within a subpractice of legal punishment that can also be regarded as its own practice, it's not clear by which principle we should be guided: that immanent in legal punishment as a whole, or that immanent in the autonomous subpractice. Take plea-bargaining, where the prosecutor offers a defendant a reduced sentence in exchange for a plea of guilty to a lesser offense. Negotiated pleas are part of the practice of legal punishment. As we shall see, the retributivist might argue that they shouldn't be, on the ground that plea-bargaining is inconsistent with the principle immanent in legal punishment. But suppose we regard plea-bargaining as a practice in its own right. Then we could be immanent critics of plea-bargaining, addressing ourselves to this particular practice. The immanent critic of plea-bargaining could study its history, try to understand the ways in which it has been defended—and then criticize particular corrupt uses of it, without reference to the principles immanent in legal punishment. The argument that plea-bargaining is an autonomous practice and should be regarded as unconnected to the larger practice of legal punishment is, however, unconvincing, especially since the prosecutor or defense attorney who initiates the plea and the judge who approves it are choosing an alternative that might be precluding the actions which the principles immanent in legal punishment oblige them to undertake.

But although I don't think we should regard plea-bargaining as an autonomous practice, there are two subpractices of legal punishment that we can more plausibly regard as practices in their own right: lawmaking and clutching. Lawmaking is an essential component of legal punishment. But neither the utilitarian nor the retributive account of why we punish can account for all aspects of lawmaking or determine how we should resolve the controversial issue of what the scope of the criminal law should be. The utilitarian principle would have us threaten with the penal sanction the doers of all actions that create mischief or disutility sufficient to outweigh the costs of imposing the penal sanction. The retributive principle

(that is, the version I defended at the end of chapter 3, that declares we punish to express condemnation, mete out just deserts, and vindicate right) would have us punish all actions that society regards as worthy of its condemnation. The utilitarian and the retributivist might agree for the most part about what these actions should be, insofar as actions that create mischief or disutility (murder, rape, larceny) are actions which incite society's righteous anger and of which society disapproves.^[4] But neither principle is sufficient to guide lawmakers. Most of us believe there are limits to what the state may legitimately proscribe or demand of us. There are many actions (or inactions) that diminish social utility, or of which we disapprove, but which we don't think it's any business of the state to prevent (or require)—for example, spitting on the sidewalk, cursing in public, not showering for weeks, being dull, arriving late for an appointment. Lawmaking is part of legal punishment, but it is also a practice in its own right, with principles at work concerning the proper limits of state interference.

Clutching—which itself includes many sub-practices, such as the stop-and-frisk, surveillance, arrest, and pre-trial detention—also is both part of the complex practice of legal punishment and a practice (or complex practice) in its own right. The institution that clutches, the police, is used for other purposes besides legal punishment, such as crowd control, traffic regulation, and instilling a sense of security and respect for authority. Clutching might be seen as a practice in its own right. We have a police force not merely to punish, but to provide a sense of security to society. Many political scientists have noted that it is not the purpose of the criminal justice system, or of the police, strictly to enforce every law on the books, but, rather, to do what is necessary to maintain social order.^[5] Someone might defend having a police force that, without

[4] Of course, the retributivist's sense of indignation is not a sense of dismay at not maximizing utility.

[5] On the social-functional role of the police, see, for example, William K. Muir, Jr., Police: Streetcorner Politicians (Chicago: University of Chicago Press, 1977); and J. Q. Wilson, Thinking About Crime (rev. ed. New York: Random House, 1985), part 2.

punishing offenders, physically prevents people from doing certain actions. However, we might think that by linking clutching to legal punishment we gain insight into why we clutch at all.

A third complication facing the theorist who seeks to resolve the particular problems facing those inside the practice of legal punishment is that in addition to utility and retribution, other principles are immanent in the practice, and there are values external to the practice that conflict with those underlying the practice, but which we, a people with many practices, nevertheless cherish. For example, we value the prosecution of the guilty, but we don't require some family members to testify against each other because we also value family unity; nor, in many cases, do we allow evidence obtained in violation of an individual's rights, as established in the Fourth Amendment to the Constitution, to be used even though it could help convict a guilty person, because in addition to valuing the capture and punishment of wrongdoers, we value individual liberty.

I argue that theory matters to our problem-ridden practitioners; in trying to resolve our practical problems it matters what our conception is of the purpose of and principle(s) underlying the practice of legal punishment as a whole. But to say theory matters is not to say the task of doing theory will be easy; it certainly won't be with a practice as complex and conflicting as legal punishment.

3. Practical Problems of Legal Punishment

We convict a murderer, sentence her to death, and execute her. If someone asks, "Why punish?" in this specific context he might mean any of the following sorts of questions: why punish for murder ? Why punish this murderer? Why punish by execution ? Our philosopher, not preoccupied with the practical concerns of those working within the criminal justice system, grapples, not with these specific variants, but, rather, with the more general question: why inflict punishment at all? Many Marxists who challenge the practice of punishing are

also concerned with none of the specific variants listed above, but, rather, with a further variant: why may the state punish this murderer? In this section we shall discriminate among these variations of the general question "Why punish?" each of which is associated with a distinct subpractice, as we consider several of the problems practitioners of legal punishment confront.

3.1 Lawmaking

Even those who have doubts about punishing in general would probably approve of punishing murder if anything is to be punished. But why? The retributivist would say, because murder is morally reprehensible. Perhaps. But then do we determine what we should criminalize by applying the principle that we punish for actions violating society's moral values? Many would disagree, arguing that the law should be neutral, that we should not "legislate morality." We may all agree that murder is wrong, but with respect to many actions (consensual homosexual sodomy, abortion, the use of drugs or alcohol, gambling, adultery) we disagree about what is right or wrong. Who should decide? Many would say, not the state.

But, then, by what principle do we determine that murder is a crime? Opposed to the retributive principle that we punish actions violating society's conception of right stand utilitarians who argue that the actions we make crimes detract from social utility; the principle of utility determines what we criminalize.^[6] Of course, utilitarians might disagree about how to apply their principle. Currently there is a debate over whether to legalize crack, the cocaine-based drug. Some argue we should, because legalization would eliminate the profit motive for drug-dealing gangs, thereby reducing gang-related violence; social utility would be augmented by not making crack use a crime. Others invoke the same utilitarian principle to argue that we should

[6] There are other possibilities as well for why we punish murder. Prominent among them are custom and Scripture. But from the person who appeals to custom we can continue to demand a justification for the custom.

not legalize crack, on the grounds that if we did, society would be worse off—legalization "would likely produce a surge of new addiction—and a health catastrophe."^[7]

This dispute among utilitarians could be resolved, in theory, by empirical studies that convincingly predicted the consequences of legalizing crack. But there are retributivists who don't care about these consequences. If it's wrong to use crack, whoever uses crack must be punished. To the retributivist, debating about social consequences misses the point of why we punish at all. Henry Hart articulates the retributivist position on lawmaking:

In its conventional and traditional applications, a criminal conviction carries with it an ineradicable connotation of moral condemnation and personal guilt. Society makes an essentially parasitic, and hence illegitimate, use of this instrument when it uses it as a means of deterrence of conduct which is morally neutral.^[8]

Hart suggests that we should make criminal only actions that are morally blameworthy, because only then do we act in accordance with the purpose of the practice.

In practice, though, we do criminalize morally neutral actions solely for the sake of deterrence. We punish for "strict liability offenses," or actions regarded as a crime even though the perpetrator did not intend to do wrong:

where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the policy of the law may, in order to stimulate proper care , require the punishment of the negligent person though he be ignorant of the noxious character of what he sells.^[9]

[7] See New York Times , December 13, 14, 15, 1989, editorial and op-ed pages.

[8] Henry M. Hart, Jr., "The Aims of the Criminal Law," Law and Contemporary Problems , vol. 23 (Summer 1958), p. 424.

[9] U.S. v. Balint , 258 U.S. 250 (1922), my emphasis.

Or take the case of the "cyberpunk," who enters computer networks without authorization. Unauthorized entry into a computer network is not widely considered immoral—the novelty of this phenomenon makes it very difficult to judge by conventional standards of right and wrong. But "cyberpunks" are a nuisance to other computer users. One prosecutor was quoted as saying: "It's a question of deterrence. We have to do something or we'll have hundreds of these yo-yos."^[10]

To the retributivist, such facts about the practice need not deny the ideal; the retributivist immanent critic argues that whenever the law is used merely to deter action that is morally neutral, the law is misapplied and should be changed. Penalties or regulatory fines might be appropriate, a civil suit may be in order, but to punish the "cyberpunk" or the violator of a "strict-liability" offense is to employ punishment wrongly, for punishment must be deserved and must express society's righteous anger.

Retribution and utilitarianism are important guiding principles in determining for which actions it is appropriate to invoke penal measures. But, as we have seen above, the question of the proper scope of the criminal law is too complicated to be determined solely by appeal to the principle(s) immanent in legal punishment. To answer the question of what we should criminalize, it's not enough even to decide the difficult question of whether we punish for utilitarian or retributive reasons. What I call the subpractice of lawmaking can be understood as part of the practice of legal punishment, so that we might think the principle(s) underlying the whole practice should guide us in this subpractice; but lawmaking can also be seen as a practice in its own right. The state which makes criminal laws exists to do other things as well; and so in thinking about the problem of what we should criminalize, we need to consider the purpose, not only of legal punishment, but also of the state. Our concern is not merely, for what should we punish? but, more generally, what are the limits of state action?

[10] New York Times , November 26, 1988, p. A7.

with what actions does the state have a right to interfere at all? Resolving the utilitarian-retributive debate won't necessarily help us with this issue. We need a theory of right(s)—perhaps a liberal theory of individual rights that establishes the boundaries of individuals which the state may not legitimately cross; or a theory of public right, or legal moralism, that rejects the idea that the rights of autonomous individuals are sovereign and sees as legitimate a far more expansive criminal law.

The most comprehensive treatment of the problem of the proper scope of the criminal law is provided in Joel Feinberg's four-volume work, The Moral Limits of the Criminal Law .^[11] Feinberg considers four possible principles that set conditions for when it is legitimate to limit liberty: (1) the "harm to others" principle warrants punishment of a person who does something to harm another and is a principle of which Feinberg says "no responsible theorist denies the validity";^[12] (2) the "offense to others" principle warrants punishment of those who hurt or offend others; (3) the "harm to self " principle justifies limiting the liberty of persons who would otherwise harm themselves; and (4) the "legal moralism" principle warrants punishment of those engaging in inherently immoral conduct regardless of its harm to anyone.^[13] Filling out these principles is a monumental task: what counts as a harm, as opposed to an offense?^[14] as causing a harm?^[15] how do we determine what conduct is "inherently immoral"?

[11] Joel Feinberg, The Moral Limits of the Criminal Law , 4 vols. New York: Oxford University Press, 1984–1988).

[12] Feinberg, Moral Limits , vol. 1 (Harm to Others ), p. 14.

[13] John Stuart Mill adopted the first principle, that the state may punish only to prevent harm to others (On Liberty , ed. Gertrude Himmelfarb [Harmondsworth, England: Penguin Classics, 1985], pp. 68–69). As Feinberg notes, there are passages where Mill suggests he holds also to the more expansive offense principle (Feinberg, Moral Limits , vol. 1, p. 14; cf. Mill, On Liberty , ch. 5, par. 7).

[14] Feinberg defines a harm as both a setback to interest (this accounts for why, when my favorite football team has lost, I can't say it has harmed me in a legal sense—my interests have not been set back, for I had no real stake in the team); and a violation of a person 's right (this accounts for why a person who doesn't return my love has no harmed me in legal sense, for I have no right to be loved back). Cf. Moral Limits , vol. 1, chs. 1, 3.

This is not the place to address these and related questions. The point I want to make is that the issues concerning lawmaking are very complicated and can't be entirely resolved merely by agreeing on the purpose of the practice of legal punishment. We might think that the retributivist would commit to principle 4, and therefore that the retributive account of punishment does claim to determine what actions we should make criminal. But retributivists needn't be legal moralists; the version of retributivism that I have argued is most persuasive claims only that the reason we punish lawbreakers is to express condemnation, mete out just deserts, and vindicate right. It does not follow from, though it is consistent with, this principle that all actions of which society disapproves ought to be legally punished. Retributivists can also hold to a liberal principle that respects the autonomy of individuals and that limits which actions deserving condemnation the state might legitimately proscribe; indeed, such respect for autonomy is the basis of some retributivists' criticism of utilitarian theories of punishment. As we've seen, both Kant and Hegel criticize utilitarians for using punishment as a threat and thus failing to respect human beings as rational agents.^[16]

Utilitarianism is also not a rich enough theory to determine which of the four principles should limit the scope of the criminal law. The utilitarian might believe herself able to determine whether we should punish drunkenness, drug use, gambling, adultery, discreet prostitution, or live sex shows, but whether it is legitimate for punishment in these cases to take the form of state punishment (as opposed to other forms of social pressure, or even state regulation ) depends on what we

[15] Complications arise when there are concurrent or intervening causes. Another problem is whether my failure to act to save someone should be seen as "causing" a harm (Feinberg, Moral Limits , vol. 1, chs. 3, 4).

[16] See my discussion, chapter 3, section 2.3.

think the proper role of the state is in our lives, on which of Feinberg's four principles we think determine the proper moral limits of the criminal law. If, like some classical liberals, we think we join the state merely to protect our person and property, then we may think the state may legitimately invoke its police power only to limit actions that victimize a person or property.^[17] But if we think the liberal account of why we join the state is empty, perhaps even that the state is not something we join at all, then we may give to the law far broader scope than does the liberal.

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.

3.3 Determination of Guilt

The person who is suspected of violating a law and is clutched may then, at the discretion of the prosecutor, be brought to trial for a determination of guilt. Some of the most difficult issues faced by prosecutors, defense attorneys, and judges are raised at this stage of the practice. For some of these issues, our position will depend on whether we are retributivists or utilitarians; for others, both retributivists and utilitarians are ambivalent.

3.3.1 Plea-Bargaining

Plea-bargaining refers to the exchange, between prosecutor and defendant, of reductions in charge for a plea of guilty. It is a sort of bargaining in the shadow of the law—though the idea of bargaining is a bit misleading, since there are going rates of exchange.^[55] The reason often given for why the prosecutor would offer a plea bargain and why the judge would accept (which in practice is typically the case) is that this is a quick and easy way to avoid the costs

[54] As was suggested in some newspaper accounts of looting that took place during the 1989 Miami riots (Miami Herald , January 18, 19, 1989).

[55] Malcolm Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979).

of trials and cope with heavy caseloads.^[56] Some scholars note, however, that plea bargains are not simply the result of a "threat of trial" by the defendant and a "threat of conviction" by the prosecutor, since often the defense couldn't afford a trial, and for some judges trials are so rare that they wouldn't mind one.^[57]

Plea-bargaining pervades the practice of legal punishment. By some accounts 90 to 98 percent of all cases are resolved without trial.^[58] Plea-bargaining is systematic, and sometimes even structurally induced. The New York Special Drug Court resolves felony drug cases in as little as six days rather than the usual six months, by offering repeat offenders charged with certain felony drug violations (for example, street-dealing of cocaine or crack) a reduced prison sentence in exchange for a plea of guilty before the case is presented to a grand jury. The defendant is told that if he does not accept the offer of the lower sentence that day, he will not be offered so short a sentence again. Often the defense attorney has little time to consider possible weaknesses in the prosecution's case, and the defendant has little time to consider the consequences of pleading guilty.^[59] Prior to the establishment of this policy, felony drug cases would require on average eight court appearances and about six months before defendants agreed to plead guilty. With the negotiated plea, cases are typically disposed of in less than two months.

[56] See Herbert S. Miller, William F. McDonald, and James A. Cramer, Plea Bargaining in the United States (Washington, D.C.: National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, U.S. Department of Justice, 1978), p. v.

[57] Feeley, The Process Is the Punishment , pp. 186–87.

[58] See New York Times , February 12, 1975, p. 1; Feeley, The Process Is the Punishment , p. 186; and Suzanne Buckle and Leonard Buckle, Bargaining for Justice (New York: Praeger Publishers, 1977), p. 3 (but cf. p. 4).

[59] New York Times , February 6, 1988, p. 1.

That plea-bargaining allows tremendous savings in resources is a strong "utilitarian" argument in its favor.^[60] By one estimate, if we took all cases to trial we would have to quadruple the number of court personnel.^[61] But there are compelling retributivist objections to plea-bargaining. Retributive justice demands that we punish a criminal only because he has committed a crime; when a defendant cops a plea, however, he is punished for a lesser offense that he did not commit, an offense which in some jurisdictions needn't be based on what actually happened:

The judgment entered on the plea in such situations may be based upon no objective state of facts. It is often a hypothetical crime, and the procedure—authorized by statute—is justified for the reason that it is in substitution for a charge of crime of a more serious nature.^[62]

There have been cases of pleas to attempted manslaughter, a crime which is logically impossible.^[63] The retributivist might claim, then, that punishing a person who cops a plea violates the retributive principle that we punish only for an offense, in order to vindicate right.^[64] Punishment, the purpose of which is to express our condemnation of a wrong, loses its meaning when applied to a person who cops a plea, because it fails to take seriously the nature of that wrong.

[60] I use the word "utilitarian" here with some reservation, for the reason I explained in chapter 3, section 1, introduction.

[61] Comment, "Official Inducements to Plead Guilty: Suggested Morals for a Marketplace," University of Chicago Law Review , vol. 32 (1964), p. 167; cited in Buckle and Buckle, Bargaining for Justice , pp. 27–28.

[62] People v. Griffin , 166 N.E. 2d 684 (N.Y. 1960), cited in Abraham Goldstein, The Passive Judiciary (Baton Rouge: Louisiana State University Press, 1981), p. 41.

[63] Goldstein, The Passive Judiciary , pp. 42–43. Goldstein notes that not all courts allow pleas to hypothetical crimes. Arizona, for example, recognizes a "public interest in an accurate criminal record for the defendant."

[64] Cf. J. D. Mabbott, "Punishment," in Stanley Grupp, ed., Theories of Punishment (Bloomington: Indiana University Press, 1971), p. 48.

Perhaps this seems a trivial objection: the person who cops a plea deserves some punishment (if we assume that he wasn't coerced into confessing guilt although he was in fact innocent) and receives some punishment—what does it matter precisely how his offense is categorized? But an argument can be made that it does matter:

The distorting effect of inaccurate pleas is obvious. They make the world of crime and corrections a world of fictions…. Probation officers submit reports describing cases of rape or armed robbery to judges and correctional officials who are then obligated by principles of legality to treat the offenses as less than they plainly are…. The charge scale is both inflated and deflated by the tension between the real and the legal offense. The lesser offense is assumed to be masking a greater offense, inviting suspicions and inquiries to pierce the formal record.^[65]

The retributivist's criticism of plea-bargaining cuts even deeper. It's not just that to punish someone who cops a plea is to punish someone for a crime she didn't commit, but that for the retributivist, punishment must be deserved, and so plea-bargaining misses the point of why we punish. Kenneth Kipnis offers the analogy of "grade-bargaining" to make this point. He has us imagine the following agreement: If I graded your paper carefully, it would probably receive a D. If you would waive your right to a careful reading, I'd give you a B. Each of us would be better off: I don't have to spend time reading your paper, and you get a better grade. Most students would accept this bargain. But, Kipnis argues, this would be wrong. "Bargains are out of place in contexts where persons are to receive what they deserve."^[66]

[65] Goldstein, The Passive Judiciary , pp. 44–45.

[66] Kenneth Kipnis, "Criminal Justice and the Negotiated Plea," Ethics , vol. 86, no. 2 (January 1976), pp. 104–5. Kipnis's analogy is clever, but it is misleading in at least one respect. The professor chose to assign an essay, rather than an easily graded true-or-false exam; neither the state nor the prosecutor in particular similarly "chooses" among alternatives to having a criminal justice system. (Thanks to Steve Krasner for suggesting to me that Kipnis's analogy is misleading.)

Some criticize plea-bargaining also as a violation of due process and of the spirit of the adversarial system. Due process demands that the defendant be presumed innocent and not be coerced into confessing guilt.^[67] But there is a great likelihood that individuals faced with the risk of going to trial for a serious crime, especially if circumstances "look bad" for them, are psychologically coerced by the plea bargain into admitting to a lesser offense and accepting less severe, though certain, punishment.^[68] One case of such coercion has been described repeatedly in studies of plea-bargaining:

San Francisco defense attorney Benjamin M. Davis recently represented a man charged with kidnapping and forcible rape. The defendant was innocent, Davis says, and after investigating the case Davis was confident of an acquittal. The prosecutor, who seems to have shared the defense attorney's opinion on this point, offered to permit a guilty plea to simple battery. Conviction on this charge would not have led to a greater sentence than

[67] Herbert Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), pp. 166–67.

[68] See Justice Brennan's dissent in N. Carolina v. Alford , 400 U.S. 25 (1970); and Conrad Brunk, "The Problem of Voluntariness and Coercion in the Negotiated Plea," Law and Society Review , vol. 13, no. 2 (Winter 1979). The retributivist R. A. Duff, in his Trials and Punishments (Cambridge: Cambridge University Press, 1986), criticizes plea-bargaining by appealing to his Kantian interpretation of the purpose of legal punishment. Duff argues that the essential purpose of punishment is to "promulgate and to justify to the citizen rules which she can and should see that she ought to obey" (p. 144). Plea-bargaining undermines this purpose: "[I]f we obtain a guilty plea by offering [a defendant] irrelevant and improper inducements or threats, which are meant to provide her with a purely prudential motive for pleading guilty, that plea loses its meaning and its value; and we no longer address or respect her as a rational agent. Such induced guilty pleas are no doubt useful … but they should have no place in a just and rational criminal process; for they are destructive of its proper ends and values" (p. 141).

thirty days' imprisonment, and there was every likelihood that the defendant would be granted probation. When Davis informed his client of this offer, he emphasized that conviction at trial seemed highly improbable. The defendant's reply was simple: "I can't take the chance."^[69]

In this case and others like it, not only is due process violated by the coercion of a bargain that in effect denies the defendant his right to trial, but the result of the negotiated plea is to punish an innocent person, which violates the weak "negative retributive principle."^[70]

Plea-bargaining seems inconsistent with the ideals the retributivist finds immanent in the practice of legal punishment. A fully committed retributivist might claim that punishment of someone who cops a plea is not really punishment and should not be a part of the practice. There is a problem with this position, though. One must wonder how the retributivist can claim to have identified the ideal immanent in the practice if that ideal contradicts such a pervasive feature of the actual practice. Rather than dismiss such a significant part of our actual practice because it violates the retributive ideal, we might wonder whether the retributivist has got that ideal right. Plea-bargaining is just one example of prosecutorial discretion, and most social scientists agree that discretion penetrates the criminal justice system through and through. In fact, the

[69] Albert Alschuler, "The Prosecutor's Role in Plea Bargaining," University of Chicago Law Review , vol. 36 (Fall 1968), p. 61; cited in Kipnis, "Criminal Justice and the Negotiated Plea," p. 98.

[70] It would be impossible to know how many such cases there are, since we can't know for certain whether the defendant really was innocent. To the accusation that due process is violated, one might respond that the defendant maintains his right to trial even with plea-bargaining, and that the reason he avoids trial is not because the bargain coerced him but because he is uncertain about the outcome of the trial process, of its ability to determine the truth, and it is this uncertainty that is the coercive element. I find this response unconvincing. The uncertainty over whether the trial will determine the truth of his innocence creates unease and anxiety, but is not coercive.

argument is made, discretion is an essential feature of the practice:

If our view of the courts is correct, efforts to banish bargaining from the courtroom will be futile; their most likely result will be to drive bargaining into more latent forms than it now takes and to make the protection of a clandestine system a powerful interest of all participants. In such a circumstance, the prospects for reforming bargaining will be much worse than they now are.^[71]

The uncompromising retributivist sticks to her ideal in the face of facts about the actual practice that contradict that ideal. For her, such facts don't deny the ideal, but, rather, indicate how strong the need is for practitioners to become theoretically informed and for the actual practice to be reformed thoroughly by abolishing plea-bargaining. I do not find that position persuasive. As an immanent critic, the retributivist is committed to deriving her ideals from existing practice, and in the face of facts that point to how discretion is a pervasive, even an essential, feature of that practice, the retributivist who is unwilling to accommodate those facts and readjust her ideals is no longer an immanent critic. Immanent criticism requires adjusting ideals in light of the facts. But the retributivist need not give up the ideal that punishment expresses society's condemnation for acts it regards as wrong and that it vindicates right, even in the face of facts suggesting that this ideal is violated in the actual practice. There is a moderate retributive position that acknowledges the necessity of some discretion in the criminal justice system if that system is to maintain itself so that the retributive ideal can be attained at all. This moderate retributivism adjusts the account of the ideal practice to take into account the facts: there is a great deal of discretion in the system, and plea-bargaining is a pervasive, even essential, feature of the practice. Rather than oppose plea-bargaining in principle, the moderate retributivist understands

[71] Buckle and Buckle, Bargaining for Justice , p. 164.

plea-bargaining to be a necessary expedient for maintaining a system that lets us mete out just deserts at all; plea-bargaining is a sacrifice of justice for the sake of justice. The moderate retributivist can still be critical of plea-bargaining, by insisting that we negotiate pleas only when doing so is necessary for the maintenance of the practice through which we attain our ideals, and that when we negotiate pleas we do so in a way consistent with retributive ideals—for example, that we insist the plea offense be commensurate in moral gravity to the actual offense, so that even though a bargain is made, the demands of justice are satisfied. This retributivist does not give up her ideals, but she readjusts them to accommodate an implacable reality.^[72]

3.3.2 Accountability

A standard answer to the question "Why punish this murderer?" is "Because she did it!" But our practice of legal punishment is not so cut and dried; assuming she did it, we want to know whether she intended to murder, and whether she could have helped doing so.

A central concept in our criminal law practice is that of mens rea , or "vicious will." In most cases we require mens rea to punish. There had to be a choice on the part of the offender to do a blameworthy act.^[73] There are two categories of mens rea . One is a narrow sense that refers to the requirement of a mental state. Several statutes stipulate that mens rea in this narrow sense is required; its absence precludes criminal liability. For example, it's impossible to commit larceny without intent, since larceny is defined as theft with intent to deprive the owner of property. Manslaughter, too, by definition requires intent, or an awareness that one's actions cause substantial risk. The other sense of mens rea is a wider one

[72] In the final chapter I shall say more about the moderate retributive position which I defend, which is in some respects consequentialist, but is nevertheless opposed to utilitarianism.

[73] See the discussion in Sanford Kadish, Blame and Punishment: Essays in the Criminal Law (New York: Macmillan Publishing, 1987), pp. 65–67.

that refers to the requirement that in order for a person to be convicted she must be legally responsible. The law absolves those we do not expect to comply with the law, for example, infants and the insane.

The requirement of mens rea seems central to criminal law. The immanent critic, who is guided by the principle(s) immanent in the practice, either must account for this requirement by the principle(s) she derives from the practice or else must criticize the requirement as inconsistent with the purpose of the practice. Utilitarians have made both moves, neither of which seems convincing. Bentham uses his principle of utility to account for the wide sense of mens rea , the requirement of legal responsibility: since the primary purpose of punishing is to deter, it would be pointless to punish children and the insane, for they could not be deterred.^[74] H. L. A. Hart has discredited Bentham's argument: "Plainly it is possible that the actual infliction of punishment on the insane or children may deter normal persons."^[75] Richard Posner accounts for the narrow sense of mens rea , the requirement of a mental state: since the purpose of punishment is to promote economic efficiency, it would be counterproductive to punish those who don't intend to commit wrongs, for then we'd all have to spend resources to avoid the appearance of committing a wrong, which would be wasteful.^[76]

Some utilitarians, rather than attempt to justify the mens rea requirement on utilitarian grounds, instead acknowledge that the requirement is inconsistent with utilitarianism and suggest that we should abolish it. Utilitarian proponents of a strict liability standard of accountability are in effect immanent critics, employing the principle they believe to underlie

[74] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789; reprinted New York: Hafner Press, 1948), chapter 13.

[75] H. L. A. Hart, "Prolegomenon to the Principles of Punishment," in Stanley Grupp, ed., Theories of Punishment (Bloomington: Indiana University Press, 1971), p. 369.

[76] See my discussion of Posner, chapter 3, section 1.3.

the practice as a whole to criticize a feature of the actual practice that, in their view, is inconsistent with the ideals of the practice.^[77] They argue that if the point of punishment is to prevent certain undesirable actions, intentions make no difference. Consider the case of an epileptic who in the midst of a seizure strikes a defenseless old man, severely injuring him. The utilitarian who insists on a standard of strict liability might insist on punishing the epileptic.^[78] This would be to criticize our actual law, which allows for the defense (excuse)^[79] of "involuntary action": we do not regard as culpable those who have no control over their bodily movements. Other utilitarians, and all retributivists, will be outraged by the idea of applying the strict liability standard to the epileptic; they will claim that this argument goes counter to the principles immanent in the practice. But the utilitarian and retributivist defenders of the "involuntary action" defense disagree about

[77] Barbara Wootton, Social Science and Social Pathology (London: George Allen and Unwin, 1967); Barbara Wootton, "Diminished Responsibility: A Layman's View," in Law Quarterly Review , vol. 76 (1960), pp. 224–39.

[78] As Richard Wasserstrom notes in his "Strict Liability and the Criminal Law," Stanford Law Review , vol. 12 (July 1960), pp. 731–45, strict liability statutes still involve some notion of fault. Wasserstrom describes an application of strict liability: in State v. Lindberg , 215 Pac. 41 (1923), a bank officer was convicted for borrowing excessive funds from his bank in violation of a statute prohibiting borrowing from his own bank. He believed the money had come from another bank. Wasserstrom imagines a different statute: "If a bank director borrows money in excess of a certain amount, from the bank of which he is director, then the director of any other bank shall be punishable by not more than ten years in the state prison." That imaginary statute would be unacceptable because it entirely does away with the concept of fault; the actual strict liability statute does not.

[79] A defense doesn't deny the prima facie case "I didn't do it"; when I give a defense I acknowledge that "I did it" but claim I shouldn't be punished, because I have a defense. An excuse is a defense based on moral innocence. There are three types of excuses: involuntary action (I had no control over my body), deficient but unreasonable action (I had either a defect of knowledge or a defect of will, perhaps due to duress), and irresponsibility (perhaps I was insane) (Kadish, Blame and Punishment , pp. 82–87).

the principle justifying the defense. Both would defend the epileptic by saying that the epileptic couldn't help it. To the utilitarian, the moral force of this reason is that the epileptic couldn't have been deterred; to the retributivist, it is that the epileptic doesn't deserve our blame—she's not at fault. If we reflect on this example we will, I think, accept the retributive justification for the defense. The retributivist immanent critic, who believes that the point of punishment is to express condemnation and who can point to many features of the practice in justification of this claim, might respond that we can't properly call our treatment of those who lacked mens rea "punishment."

I believe the retributivist provides a more persuasive account of both the narrow and the wide sense of mens rea : we do not punish people who did not intend to do wrong or who were not legally responsible, because these people do not deserve our condemnation or righteous anger. Punishment is punitive, and these people do not deserve to be punished. Consider an insane serial killer who eats his victims and shows no sign whatsoever of remorse or of appreciating that it's wrong to kill or to engage in cannibalism. This person can't be kept in an ordinary prison cell because he will eat the hands off anyone who comes near. He is deranged and deadly.^[80] We might want to lock him in an impenetrable cell on some far-off island, or perhaps execute him. But we would not do so as punishment (though it certainly would look like punishment). He can't be punished. He's not legally responsible; he can't help doing his evil deeds. It's inappropriate to judge him, just as it's inappropriate to judge a rabid dog who chews the limb off a young child.

3.3.3 Exclusionary Rule

In the previous section we considered defenses of moral innocence that excuse a person who physically did a wrong but claims to be undeserving of punishment.

[80] I refer to Dr. Hecter, a character in the recent film Silence of the Lambs.

In this section we shall consider another sort of defense, a defense based on a technicality. In this defense the offender claims, not that he was morally innocent and therefore undeserving of punishment, but that the authorities trying him violated a rule of procedure and therefore he should not be legally punished.

Some people who almost certainly have committed crimes are not punished, because the evidence that was used to convict them—either physical evidence, a confession, or an identification—was obtained illegally, in violation of the Fourth Amendment's proscription against unreasonable searches and seizures. The rule that excludes such evidence is not stated in the Constitution; it is a judicial construction that constrains prosecutors, juries, and trial court judges and is called the exclusionary rule. A glaring example of the cost of the exclusionary rule, but also of the reason for it, can be culled from the concurring and dissenting opinions of Brewer v. Williams I .^[81] Williams had escaped from a mental hospital and was seen leaving a Des Moines, Iowa, YMCA with a bundle, presumably containing the body of Pamela Powers, for whose murder he was eventually tried. Two days later Williams turned himself in in Davenport, Iowa. His lawyer in Des Moines instructed Williams over the phone not to say a word while in the police car traveling from Davenport to Des Moines. Another lawyer in Davenport told the police not to question Williams about the abduction. This attorney was not permitted in the car. In the car, Detective Learning gave what's called the Christian burial speech. He told Williams that it was going to snow and asked him to reveal where the body was so that Pamela's parents could give her a decent Christian burial. On the way to Des Moines, Williams led the police to the body. The Supreme Court ruled that what amounted to Williams's confession was wrongly admitted (in violation. of the Sixth Amendment), and

[81] Brewer v. Williams I , 430 U.S. 387 (1976). This was a Sixth Amendment case, not a Fourth Amendment case, but is still an example of how evidence that could incriminate is excluded, and what the costs of that exclusion might be.

Williams's conviction was reversed. In his concurring opinion Justice Marshall wrote:

If Williams is to go free [which he doubts very much], it will be because detective Leaming, knowing full well that he risked reversal of Williams' conviction, intentionally denied Williams the right of every American under the sixth amendment to have the protective shield of a lawyer between himself and the awesome power of the State.^[82]

In his dissent Chief Justice Burger replied:

The Court errs gravely in mechanically applying the exclusionary rule without considering whether that draconian judicial doctrine should be invoked in these circumstances, or indeed whether any of its conceivable goals will be furthered by its application here.^[83]

To some, the exclusionary rule, intended to uphold the rights of possibly innocent defendants by discouraging the police from overzealousness in their pursuit of criminals, obstructs the true purpose of legal punishment—the protection of society and control of crime. Others defend the rule by appealing to the importance of judicial integrity and the upholding of the rule of law and the rights of individuals, which the Fourth Amendment was constructed to protect.^[84] The

[82] Ibid., pp. 408–9.

[83] Ibid., p. 420.

[84] Of course, much of the debate over the exclusionary rule concerns the strictly constitutional issue of whether the rule is a constitutional command or a judicial construction. A famous debate about the theory underlying the exclusionary rule occurred between Yale Kamisar, who defends the rule on the grounds of both principle and consequences (as a check on police misbehavior, for example), and Malcolm Richard Wilkey, who opposes the rule because, in his view, it frustrates crime control (exchanges in Judicature , vol. 62, no. 2 [August 1978]; vol. 62, no. 5 [November 1978]; vol. 62, no. 7 [February 1979]). For empirical evidence to the effect that the exclusionary rule leads to the release of otherwise guilty persons, decreases public respect for the justice system, and is ineffective as a deterrent to police misconduct, see Steven R. Schlesinger, "The Exclusionary Rule: Have Proponents Proven That It Is a Deterrent to Police?" Judicature , vol. 62, no. 8 (March 1979). On the other side, Peter F. Nardulli, "The Societal Cost of the Exclusionary Rule: An Empirical Assessment," Research Journal , no. 3 (Summer 1983), pp. 585–610, argues that there is a low societal cost for the exclusionary rule. Nardulli claims that the success rate of motions to suppress physical evidence is only 0.69 percent, and in only 0.6 percent of all cases are convictions lost. See also Thomas Davies, "A Hard Look at What We Know About the Costs of the Exclusionary Rule: The NIJ Study and Other Studies of Lost Arrests," Research Journal , no. 3 (Summer 1983), pp. 611–92. Davies also concludes that there is a low societal cost to the exclusionary rule. Davies's article makes the excellent point that the exclusionary rule can have a significant effect on, without eliminating, police misbehavior, just as the 55 m.p.h. speed limit can have a beneficial effect without bringing about exact compliance. Instead of speeding at 80 under a 70 m.p.h. law, we now do 65 under a 55 m.p.h. law; our behavior is still illegal, but it is also safer.

problem of whether we should apply the exclusionary rule, like the problem of what we should criminalize, is not obviously resolved by either utilitarian or retributive principles. The exclusionary rule is defended by some retributivists who think we should go out of our way to avoid punishing innocent people, on the principle that we must punish only those who have committed a wrong: "It is far worse to convict an innocent man than to let a guilty man go free."^[85] (On the other hand, the retributivist may wonder why we have an adversarial system of criminal justice that requires such measures as the exclusionary rule, as opposed to the inquisitorial system of many European nations.) But other retributivists oppose the exclusionary rule, on the grounds that we must punish the guilty and the exclusionary rule may prevent us from doing this. In deciding whether to use the exclusionary rule, we need to weigh not only competing values within the practice of legal punishment, but also other values, including some implicit in the Constitution. Application of the exclusionary rule means that sometimes a guilty person goes free. Yet refusal to apply it means that the courts have almost no power to enforce the Fourth Amendment. The value of the justice the retributivist

[85] In re Winship , 397 U.S. 358 (1969), at 372, Justice Harlan, concurring.

seeks must sometimes be weighed against other values that we, a people with many values and practices, cherish.

3.4 Sentencing

The suspect, having been clutched and tried as a defendant, then convicted, is a criminal who now must be sentenced, perhaps to become a convict. The next stage of legal punishment, sentencing, poses its own distinct issues. Again, not all of them can be resolved merely by a conception of the purpose of legal punishment, but some can.

Many of the controversies concerning sentencing hinge on the distinct but related questions: (1) should there be discretion (and, if so, how much); and (2) who should have it? Discretion in sentencing might mean individualized and often indeterminate sentencing, with discretion given to a parole board and not the judge. Discretion means, in this context, making exceptions in particular circumstances to general rules. In practice this means taking into account in determining her sentence the criminal's prior record, her prospects for rehabilitation, the danger posed to society, her family and economic situation, and other factors unique to the individual. It might also mean judicial discretion. In many jurisdictions judges are given wide latitude in setting a criminal's sentence. For example, in Connecticut the judge's sentencing options for the offense of armed robbery range from unsupervised release to twenty years' imprisonment. The judge's decision is not typically reviewable, nor need its justification be stated. This is troubling to many, especially in light of the wide variance in sentences judges deem appropriate. In one conference of federal trial judges, "a crime that drew a 3-year sentence from one judge drew a 20-year term and a $65,000 fine from another, though each judge was deciding on the identical set of facts."^[86]

Some object to judicial discretion on the grounds that the legislature and not judges should decide issues that involve

[86] Von Hirsch, Doing Justice , pp. 28–29.

moral judgments.^[87] The prevalence of this view is reflected in the trend toward sentencing commissions, which are bodies authorized by the legislature to establish guidelines for judges to follow when sentencing. Sentencing guidelines establish a range of punishments that take into account the seriousness of the crime and the prior criminal record of the offender and also make allowances for aggravating and mitigating factors. Sentencing according to such guidelines is referred to as presumptive sentencing, since if the judge departs from the guidelines she must justify the departure. Discretion remains but shifts partly to the commission.^[88]

On the first question—should there be any discretion in sentencing?—there is great disagreement, and divisions are often but misleadingly said to be along utilitarian-retributive lines. Some retributivists hold that there is a just amount of punishment that is deserved simply by virtue of the act committed by the criminal, so that there is no point taking into account other features of the individual in determining his sentence. Yet the demands of justice as fairness may require individualization of sentences. It would seem unjust, for example, to mete out the same fine to two criminals, one of whom was very rich, the other very poor, since the poor person would experience more punishment from the same fine. It's not clear, then, that retributivism commits us to oppose individualized sentencing. However, the retributivist does unambiguously oppose instances in which, though there are clearly acknowledged standards for what punishment is just, a judge departs from these standards for the sake of utility—when, for instance, he lets off with a sharp warning a prospective medical student so that she can pursue a career from which society would benefit, but sends to prison a person with no such bright future who committed the same crime.

[87] Alan Dershowitz, "Who Decides and When?" in Hyman Gross and Andrew von Hirsch, eds., Sentencing (Oxford: Oxford University Press, 1981), pp. 343–48.

[88] See Andrew von Hirsch, Kay Knapp, and Michael Tonry, eds., The Sentencing Commission and Its Guidelines (Boston: Northeastern University Press, 1987).

There are other issues concerning sentencing that can be resolved by choosing between utilitarian and retributive principles. Consider the question of whether we should give extended sentences to repeat offenders. Suppose that someone steals a car and that society normally attaches a five-year prison term to this crime. If this person has committed many previous crimes, a utilitarian might argue that he is dangerous and should receive an extended sentence. This would incapacitate him, keep him from harming society in the future. The retributivist immanent critic objects: justice demands a five-year sentence, not one day more or less. To keep the prisoner an extra day is to cause him to suffer for something he did not do, not really to punish him.^[89] Extended sentences for repeat offenders are a part of our practice.^[90] We use them, not, as in the case of plea-bargaining, as an expedient to help maintain the criminal justice system, but because we find it useful to incapacitate people we regard as dangerous.^[91] For utilitarians, extending sentences of repeat offenders is entirely consistent with the purpose of legal punishment. For the retributivist, it is to engage in some other practice, not that of punishment.

This dispute between utilitarians and retributivists has some practical importance. Some recently established sentencing guidelines specify a rationale for sentencing. If the rationale for punishment is incapacitation of the offender, then factors such as predicted future behavior (based largely on prior criminal record) justify disparate sentences. If the rationale of punishment is desert, then such a disparity cannot be allowed. In

[89] See Wojciech Sadurski, Giving Desert Its Due (Boston: D. Reidel, 1985), p. 255.

[90] Cf. Sas v. Maryland , 334 F. 2d 506 (1964): "[Ilt is within the power of the State to segregate from among its lawbreakers a class or category which is dangerous to the public safety and to confine this group for the purpose of treatment or for the purpose of protecting the public from further depredations."

[91] It might be argued that a reason for extending sentences of repeat offenders is that they deserve more punishment. If this were true, the practice might be acceptable to retributivists.

other words, guidelines chart out a curve, with the y -axis length of prison term and the x -axis length of criminal record: a desert rationale implies a flat curve (longer criminal record does not merit longer sentence); an incapacitation rationale implies a steep curve (longer criminal record implies a more dangerous criminal and the need to incapacitate by extending the sentence). The Minnesota Sentencing Commission, for example, uses a combination of curves: a flat curve close to the origin reflects how the commission has chosen a desert-based rationale, but a steep curve further along the x -axis, that dictates harsher punishments for offenders with very lengthy criminal records, reflects the commission's desire to incapacitate those it regards as probable future threats to society.^[92] That a chart with curves varying depending on one's theory of legal punishment is used in practice should excite the theorist of legal punishment. How rare it is for a theorist to have such a decisive practical impact! The privilege here given to the theorist, though, is itself a political decision, and the survival of sentencing commissions is by no means a certainty. The commissions have many politically powerful opponents, including judges who prefer to exercise discretion on their own.

The question of whether there should be discretion in sentencing or whether utilitarian considerations should weigh in the determination of particular sentences is distinct from the question of what punishment is, in general, commensurate with a given crime. Even if we think individual sentences determined at the discretion of the judge are legitimate, we still need to decide on what core level of punishment the individual sentence is based. Does commitment to either utilitarianism or retributivism help us with this question? Retributivists are often taken to answer this question by appealing to the lex talionis : punishment should fit the crime literally. But not only

[92] See Andrew von Hirsch, "The Sentencing Commission's Functions," in von Hirsch, Knapp, and Tonry, The Sentencing Commission and Its Guidelines , pp. 3–15.

is this position not inherently retributive-we saw in chapter 3, section 1.1, that Bentham provides a utilitarian rationale for the lex talionis -most modern retributivists discredit it thoroughly. We shall see in the last section of this chapter that one retributivist, Hegel, argues, I think persuasively, that on this question of commensurability, retribution is of little help; ultimately the level of punishment society deems just for any given crime depends on the customs and conventions of that society, as well as on utilitarian considerations. One can hold that we punish for justice and insist that we only punish when doing so is consistent with justice, yet believe that the amount of punishment society regards as just is a matter of custom, convention, or utility, not something itself justified by the principle of retribution.

3.5 Infliction of Punishment

Probably most people outraged at the practice of legal punishment are disturbed by the actual infliction of pain. Certainly the hurt of punishment seems to many of us, including our philosopher, to demand justification:

Philosopher: "So a man has committed a crime. It's done. Why hurt him? This won't undo the crime. If you hurt him, he'll only become more resentful, more antisocial, and so more likely to commit crimes. If you put him in prison this will still be true, but in addition he'll learn from his fellow inmates how to be a better criminal."^[93]

By now we should see that to respond to our philosopher requires us to defend, not the whole practice of legal punishment, but the part of the practice that involves inflicting pain. Our philosopher may well be wrong about some of his assertions.^[94]

[93] Cf. Randall Barnett, "Restitution: A New Paradigm of Criminal Justice," Ethics, vol. 87, no. 4 (July 1977): "In prison [the criminal] learns the advanced state of the criminal arts and vows not to repeat the mistake that led to his capture. The convict emerges better trained and highly motivated to continue a criminal career" (p. 285).

But even if he were right, it would not follow that we should no longer inflict punishment. At best this philosopher gives an argument for punishing more effectively.

Distinguishing the issue of how (or whether) to inflict punishment from the issue of how much punishment we should inflict, and regarding the actual infliction of punishment as a subpractice distinct from sentencing, lets us focus on what is uniquely problematic about inflicting punishment. The problem here is not about how much pain we inflict, but that we inflict it at all instead of reacting in some other way upon the convicted criminal. One proposal, inspired by an antipathy to our present ways of inflicting punishment, has us respond to crimes, not by punishing, but by demanding restitution. Randall Barnett argues that the "paradigm of punishment is in crisis." Punishment is in crisis partly because of its uncertain moral status—we pity both victim and criminal—and partly because it is counterproductive, only encouraging more crime.^[95] Barnett thinks we should change our present method of punishment by establishing a program of restitution wherein the offender compensates the victim.

Barnett goes further, saying we should replace punishment with restitution. He means to go beyond proposing a mere reform of the way we inflict punishment. Barnett's program includes a reconceptualization of crime and criminal justice:

[Restitution] views crime as an offense by one individual against the rights of another. The victim has suffered a loss. Justice consists of the culpable offender making good the loss he has caused.^[96]

[94] Some studies suggest that punishment does deter. See Johannes Andenaes, "General Prevention—Illusion or Reality?" Journal of Criminal Law , vol. 43, no. 1 (July–August 1952), pp. 176–98; the same author's Punishment and Deterrence (Arm Arbor: University of Michigan Press, 1974); Laurence Ross, "Law, Science, and Accidents: The British Road Safety Act of 1967," Journal of Legal Studies , vol. 2 (1973), pp. 1–78; and Wilson, Thinking About Crime , ch. 7.

[95] Barnett, "Restitution," pp. 281, 284–85.

[96] Ibid., p. 287.

Instead of seeing in crime an offense against society, we now see an offense against an individual victim; Barnett compares this to a Kuhnian "shift of world-view."^[97]

How simple! But how devastating to what matters to many of us. To Barnett, "the point is not that the offender deserves to suffer; it is rather that the offended party desires compensation."^[98] Barnett achieves his paradigm shift by banishing from the criminal law all elements of desert and blameworthiness. But the retributivist believes that the point of this law is that the offender deserves to suffer.

Roger Pilon, responding to Barnett's article, makes just this point. He asks, "[l]f a rich man rapes a rich woman, are we really to suppose that monetary damages will restore the status quo, will satisfy the claims of justice? "^[99] Pilon continues:

The reduction of criminal wrongs to civil wrongs … bespeaks an all too primitive view of what in fact is at issue in the matter of crime…. Compensation does not reach the whole of what is involved—it does not reach the mens rea element…. The criminal has not simply harmed you. He has affronted your dignity.^[100]

The argument underlying Pilon's point is that our criminal justice system is largely designed to express condemnation of certain blameworthy actions and that the criminal law in part articulates a social morality. In reducing criminal wrongs to civil wrongs, Barnett would change the practice of legal punishment beyond recognition.

Barnett's reduction of criminal to civil wrongs should remind us of some classical liberals' view that we cannot speak of injuries to the public or to state interest but only of injuries to individual interests recognized as rights. Barnett dismisses

[97] Ibid.

[98] Ibid., p. 289, quoting Walter Kaufmann, Without Guilt and Justice (New York: Peter H. Wyden, 1973), p. 55.

[99] Roger Pilon, "Criminal Remedies: Restitution, Punishment, or Both?" Ethics , vol. 88, no. 4 (July 1978), p. 351, my emphasis.

[100] Ibid., pp. 351–52 (cited in an order different from the original).

the idea of victimless crimes. First he objects to those defending the idea that there can be crimes that injure society as a whole and not assignable individuals. Barnett writes: "It might be objected that crimes disturb and offend not only those who are directly their victim, but also the whole social order." He then characterizes (in a rather unfair way) those making this objection: "Restitution, it is argued, will not satisfy the lust for revenge felt by the victim or the 'community's sense of justice.' "^[101] (But surely we can defend the idea of victimless crimes without lusting for vengeance.) Barnett further defends his collapsing of crimes into torts while arguing for decriminalization of activities most of us think are blameworthy:

The effect of restitutional standards on the legality of such crimes as prostitution, gambling, high interest loans, pornography, and drug use is intriguing. There has been no violation of individual rights, and consequently no damages, and therefore, no liability. While some may see this as a drawback, I believe it is a striking advantage of the restitutional standard of justice. So-called victimless crimes would in principle cease to be crimes. As a consequence, criminal elements would be denied a lucrative monopoly, and the price of these services drastically reduced. Without this enormous income, organized crime would be far less able to afford the "cost" of its nefarious activities than it is today.^[102]

The practical implications of Barnett's suggestion are staggering. It's not just that with Barnett's system we'd have no remedy against someone who delights in torturing deer (for deer possess no rights and therefore cannot demand restitution).^[103] This might be upsetting enough, but I'd be even more

[101] Barnett, "Restitution," p. 295.

[102] Ibid., pp. 300–301.

[103] Franklin G. Miller, "Restitution and Punishment: A Reply to Barnett," Ethics , vol. 88, no. 4 (July 1978), p. 359. Of course, Miller intends to be clever, and I do not mean to suggest that he fails to see what I regard as the more serious objection. Miller points out also that Barnett leaves no room for dealing with such offenses against society as tax evasion, damage to public property, and obstruction of justice.

bothered by the prospect of a free market in heroin and crack; or that if I had no surrogate (i.e., next of kin—but who would count?) someone could murder me without being taken off the streets or even reproached. My objection is not merely that, because those who use crack usually become violent, I'd be afraid to live in a society where it was legal to obtain crack. The restitutionist can point out that once the crack addict does become violent and injures me, I can seek restitution—this is a slight comfort. My objection is to living in a society where it is likely that using drugs such as crack will no longer be regarded as wrong.^[104]

Pilon observes that in effect Barnett offers a paradigm not of criminal but of civil justice.^[105] There are good reasons to think Barnett is offering us, not a reform of our practice of legal punishment, but a new practice.^[106] But although Barnett insists on calling his theory of restitution a paradigmatic break with punishment, a careful reading of his proposal in the end belies his exaggerated claims. For the offender who fails to pay,^[107] Barnett suggests "confinement to an employment project." And if the offender proved not to be "trustworthy," he would have to remain in the project, away from his family. Barnett also tells us that "if a worker refused to work, he would be unable to pay for his maintenance…. If he did not make restitution he could not be released."^[108] Barnett refuses to call this punishment; perhaps he is too intent on advancing his

[104] I advance. this objection with some hesitation: if it's wrong to use crack, is it also wrong to use marijuana? alcohol? tobacco? Who decides?

[105] Pilon, "Criminal Remedies," p. 350.

[106] it's difficult to decide what counts as our practice, and what changes to it would count as constituting a new practice. We shall consider this difficult and crucial problem in the next chapter.

[107] Presumably, if Barnett's ideas were implemented there would be no "criminals," only "offenders."

[108] Barnett, "Restitution," p. 289.

ideas on restitution as a paradigmatic revolution to see the obvious point that any program of restitution, including his own, must rely on punishment as a threat. Barnett, searching vigorously for some remedy for crime that avoids the moral objectionability of our way of punishing, relies ultimately on another method of inflicting punishment; it's just that Barnett does not think we should call it punishment.^[109]

Barnett is right to be troubled by our present method of inflicting punishment. Many questions plague us: Why inflict punishment if doing so only makes our crime problem worse? Why punish if between sentencing and punishment the criminal reforms and makes restitution?^[110] Should we use exemplary punishments?^[111] Should we use private prisons, because they are more cost-efficient? Should we execute criminals? By seeing the infliction of punishment as but one part of this broader practice, we can focus on the practical question of alternatives to our present methods of inflicting punishment.^[112] Barnett cannot help us with these questions, because, according to his understanding of the purpose of criminal law, we don't need to punish crimes at all. I do not accept Barnett's interpretation of our practice. Although he agrees that our criminal justice system is intended to realize justice, his understanding of justice as nothing but restitution for violations

[109] Barnett walks a fine line between offering radical and immanent criticism. In characterizing his proposal as a paradigmatic revolution, he reminds us of the radical critic, unwilling to accept the premises and principles underlying our practice of punishment. But Barnett fails to sever his ties with the practice completely.

[110] Robert Nozick, in his Philosophical Explanations , says we should not (Cambridge, Mass.: Harvard University Press, 1981), p. 385.

[111] Exemplary punishment is punishing a criminal particularly harshly as an example to others. Retributivists would say this is unjust; many utilitarians would say it is justified.

[112] Many object to incarceration, but it is difficult to think of a satisfactory alternative. Examples of alternatives include warning and release; intermittent confinement that is not residential; and restitution in various forms, with back-up sanctions. See, for example, the discussion in von Hirsch, Doing Justice , pp. 119–22, 137–39.

of individual rights leaves him unable to account for why we punish for justice. We do punish, and not merely to compensate victims. Rather than adjust his ideal to account for what we actually do, Barnett sticks to the ideal and in effect offers us a new practice. But because it diverges so greatly from the ideals we do share, the practice he offers is not one I think we should want, or will be likely ever to have.

4. A Consequential Retributivism

The retributivism I have defended in this chapter is a modified retributivism. It acknowledges that the ideal of justice sometimes has to be adjusted in light of the facts, and in particular, of institutional requirements. There's no sense in holding to ideals if the institutions which let you realize your ideals are doomed to failure as a consequence. The retributivism I defend is not a compromise with utilitarianism, but it is in a sense consequentialist. I never hold that we should decide whether to punish by making a utilitarian calculation. Yet I am willing to say that if it is necessary to plea-bargain in order to maintain the system that lets us attain the retributive ideal at all, then we should plea-bargain.

The retributivism I defend is not always opposed to utilitarianism. The principle to which I hold demands that we punish in order to express society's condemnation of actions it regards as wrong, to mete out just deserts, and to vindicate right. On some issues, this principle is not specific enough to dictate what we should do. We saw in chapter 3 that utilitarians declare that we should punish only when doing so augments social utility. Bentham lists several cases "unmeet" for punishment, cases in which punishment should not be inflicted even though it is deserved. Retributivists who hold to what we called the positive retributive principle, which insists that we must punish those who are guilty of a crime, insist that we punish even though doing so is opposed to the principle of utility. Retributivists and utilitarians seem to clash head on regarding these cases, but they needn't. Some retributivists

see a limit to what their retributive principle can determine. They acknowledge that their principle can't necessarily say how much punishment a criminal should receive, and in considering that question they are willing to take into account considerations normally thought to be "utilitarian." For example, Hegel writes:

The various considerations which are relevant to punishment as a phenomenon and to the bearing it has on the particular consciousness, and which concern its effects (deterrent, reformative, etc.) on the imagination, are an essential topic for examination in their place, especially in connexion with modes of punishment, but all these considerations presuppose as their foundation the fact that punishment is inherently and actually just.^[113]

Hegel insists that the reason we punish at all is to vindicate right and mete out justice, but in determining the mode of punishment Hegel is willing to take into account the future good a particular mode of punishment would bring about. Hegel recognizes there are limits to what the principle of retribution can determine: "[T]he qualitative and quantitative characteristics of crime and its annulment [punishment] fall … into the sphere of externality. In any case no absolute determinacy is possible in this sphere."^[114] Indeed, Hegel believes that the level of punishment appropriate for any given crime depends on the condition of the society that punishes: "A penal code [Strafkodex ] … is primarily the child of its age and the state of civil society at the time."^[115] ln societies that are "internally weak," punishments must be harsher, in order to set an example, but in a society that is internally strong [in sich fest ], punishment needn't be so severe.^[116]

[113] Hegel, Philosophy of Right , trans. T. M. Knox (London: Oxford University Press, 1952), par. 99, Remark.

[114] Ibid., par. 101, Remark; cf. par. 214; par. 218, Remark.

[115] Ibid., par. 218, Remark.

[116] Ibid., par. 218, Addition.

Justice may be indifferent to one sentence as opposed to another if, according to social norms, both suitably express our condemnation of the act. In choosing between two such sentences the retributivist can, without sacrificing the retributive ideal, appeal to considerations normally taken as utilitarian. This is what Hegel does. To look forward to the consequences of punishing in such cases is not to compromise retribution for the sake of utility; it is not to reduce retribution to a necessary but not sufficient condition for punishment and to let the utilitarian ultimately determine whether we should punish, as von Hirsch would have it.^[117] Rather, it is to take the retributive ideal as far as it goes, and only when it can go no further, to invoke considerations normally taken as utilitarian.

I believe that retribution has been dismissed by many theorists of punishment either because it is conflated with revenge or because it is taken as a deontological theory, oblivious to consequences, and neither a position advocating vengeance nor one that holds to justice "though the world perish" is attractive. But the retributive position I defend is neither a revenge theory nor deontic; and I believe it offers the best account of why we do and therefore how we should punish.

[117] Cf. my discussion in chapter 3, section 2.4.