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INNOCENTS LOST: Proportional Sentencing and the Paradox of Collateral Damage

  • Jeffrey Brand-Ballard (a1)

Abstract

Retributive restrictions are principles of justice according to which what a criminal deserves on account of his individual conduct and character restricts how states are morally permitted to treat him. The main arguments offered in defense of retributive restrictions involve thought experiments in which the state punishes the innocent, a practice known as telishment. In order to derive retributive restrictions from the wrongness of telishment, one must engage in moral argument from generalization. I show how generalization arguments of the same form can be used subversively to derive morally unacceptable conclusions from other scenarios in which the state intentionally inflicts undeserved coercion. For example, our considered moral convictions approve of punishment policies that inflict collateral damage, such as the ubiquitous policy of excluding the family members of inmates from prison facilities outside visiting hours. I present a generalization argument for the conclusion that these policies are seriously unjust. If we firmly believe that these policies are not unjust, then we should put less stock in generalization arguments. We should not use them to support retributive restrictions. This conclusion has broad implications for the theory and practice of criminal justice.

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1. Victor Hugo, The Last Days of a Condemned Man and Other Prison Writings 29–30 (Geoff Woollen trans., 1992).

2. Cal. Penal Code Ann. §667(b) (West 1999); Ewing v. California, 538 U.S. 11, 20, 30–32 (2003) (upholding defendant's sentence of twenty-five years to life for stealing three golf clubs under California's three strikes law).

3. Mont. Code Ann. §45-9-103 (2005); Hutto v. Davis, 454 U.S. 370 (1982) (upholding forty-year prison sentence for distributing and possessing with intent to distribute less than nine ounces of marijuana).

4. See George L. Kelling & William J. Bratton, Declining Crime Rates: Insiders' Views of the New York City Story, 88 J. Crim. L. & Criminology 1217–1231 (1998).

5. See Mauer, Marc, Why Are Tough on Crime Policies so Popular?, 11 Stan. L. & Pol'y Rev.9 (1999).

6. One of the authors of California's “three strikes” law notes that “the legal scholarship is overwhelmingly critical.” Jones, Bill, Why the Three Strikes Law Is Working in California, 11 Stan. L. & Pol'y Rev.23, 23 n.6 (1999).

7. For doubts about New York's policy, see Bernard E. Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (2001).

8. See Vitiello, Michael, Three Strikes: Can We Return to Rationality?, 87 J. Crim. L. & Criminology395 (1997). Montana's policy is criticized in Frase, Richard S., Excessive Prison Sentences, Punishment Goals, and the Eighth Amendment: “Proportionality” Relative to What?, 89 Minn. L. Rev.571 (2005). Michael Corrado asserts that “legislatures . . . have pass[ed] . . . habitual criminal statutes that punish out of proportion to the crime.” Corrado, Michael Louis, Punishment and the Wild Beast of Prey: The Problem of Preventive Detention, 86 J. Crim. L. & Criminology778 (1996).

9. See Weinstein, Ian, The Adjudication of Minor Offenses in New York City, 31 Fordham Urb. L.J.1157, 1174 (2004).

10. In Kant's words:

Punishment by a court . . . can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime. For a man can never be treated merely as a means to the purposes of another or be put among the objects of rights to things: His innate personality protects him from this, even though he can be condemned to lose his civil personality.

Immanuel Kant, The Metaphysics of Morals 140–141 (Mary Gregor trans., 1991). See also Murphy, Jeffrie G., Does Kant Have a Theory of Punishment?, 87 Colum. L. Rev.509 (1987).

11. Minimal retributivism dictates what the state may not do (i.e., telish) but gives no positive guidance when punishment is permitted. See J.L. Mackie, Morality and the Retributive Emotions, in Persons and Values (1985). Minimal retributivism is also known as “negative retributivism,” “weak retributivism,” and “limiting retributivism.” See Ten, C.L., Positive Retributivism, 7 Soc. Phil. & Pol'y194 (1990); Heidi M. Hurd, Moral Combat 1 (1999); Robinson, Paul H., The A.L.I.'s Proposed Distributive Principle of “Limiting Retributivism”: Does It Mean in Practice Anything Other Than Pure Desert?, 7 Buff. Crim. L. Rev.3 (2003). It is distinguished from “permissive” or “positive” retributivism, which asserts that the state is at least permitted to punish the guilty. See Philosophy of Law 694–95 (Frederick Schauer & Walter Sinnott-Armstrong eds., 1996).

12. There is, oddly, no accepted term for this popular principle. My terminology deliberately echoes Raz's “exclusionary reasons.” Joseph Raz, The Authority of Law 22 (1979).

13. Common measures of desert include harm caused, degree of “unfair advantage” taken over law-abiding citizens, moral wrongfulness, and others. See, e.g., Robert Nozick, Philosophical Explanations 363–393 (1981); Michael Davis, To Make the Punishment Fit the Crime (1992); R.A. Duff, Punishment, Communication, and Community (2001).

14. See Ewing, supra note 2, at 538 U.S. 11. If one of these theories is true, then California's law is unjust, according to minimalism.

15. See, e.g., Deirdre Golash, The Case against Punishment (2005); Duff, supra note 13; Michael S. Moore, Placing Blame (1997); Philip Montague, Punishment as Societal Defense (1995); Andrew von Hirsch, Censure and Sanctions (1993); Davis, supra note 13; Igor Primoratz, Justifying Legal Punishment (1989); Wojciech Sadurski, Giving Desert Its Due (1985); Hampton, Jean, The Moral Education Theory of Punishment, 13 Phil. & Pub. Aff.208 (1984); Herbert Morris, On Guilt and Innocence (1976); H.L.A. Hart, Punishment and Responsibility (1968); McCloskey, H.J., A Non-Utilitarian Approach to Punishment, 8 Inquiry249 (1965).

16. Commitment to exclusivism implies commitment to minimalism. One cannot rationally impose an excessive sentence for the purpose of giving the convict what he deserves.

17. See, e.g., Duff, supra note 13; Moore, supra note 15; Davis, supra note 13; von Hirsch, supra note 15; Primoratz, supra note 15; Sadurski, supra note 15; Morris, Herbert, A Paternalistic Theory of Punishment, 18 Am. Phil. Q.263 (1981); Morris, supra note 15.

18. See, e.g., C.L. Ten, Crime, Guilt and Punishment (1987); Hart, supra note 15; Rawls, John, Two Concepts of Rules, 64 Phil. Rev.3 (1955); Scheid, Don E., Constructing a Theory of Punishment, Desert, and the Distribution of Punishments, 10 Canadian J. L. & Jurisp. 441 (1997).

19. See, e.g., Hampton, supra note 15.

20. See, e.g., Montague, supra note 15; Farrell, Daniel M., The Justification of General Deterrence, 94 Phil. Rev.367 (1985); Quinn, Warren, The Right to Threaten and the Right to Punish, 14 Phil. & Pub. Aff.327 (1985).

21. “Telishment” is short for “teleological punishment.” John Rawls coined this term in the course of defending rule utilitarianism. Rawls, supra note 18, at 11. Others have adopted the term. See, e.g., Schedler, George, On Telishing the Guilty, 86 Ethics256 (1976); McCloskey, H.J., An Examination of Restricted Utilitarianism, 66 Phil. Rev.466 (1957). The telishment scenario is described in Ten, Crime, supra note 18, at 13–14; Michael Moore, Law and Psychiatry 238–240 (1984); Gertrude Ezorsky, The Ethics of Punishment, in Philosophical Perspectives on Punishment xiv–xvii (Gertrude Ezorsky ed., 1972); McCloskey, Non-Utilitarian Approach, supra note 15, at 255; E.F. Carritt, Ethical and Political Thinking 65 (1947); Mabbott, J.D., Punishment, 48 Mind152, 167 (1939). The concern dates back at least to F.H. Bradley & W.D. Ross. F.H. Bradley, Ethical Studies 29 (2d ed. 1929); W.D. Ross, The Right and the Good 56–64 (1930).

22. See, e.g., Duff, supra note 13, at 8; Matt Matravers, Justice and Punishment 17 (2000); Primoratz, supra note 15, at 35–45; Ten, Crime, supra note 18, at 13.

23. Plural of “reductio.”

24. Until the late twentieth century, the dominant theoretical approaches to legal punishment were consequentialist. On this point see Duff, supra note 13, at 7; Michael, Mark A., Utilitarianism and Retributivism: What's the Difference?, 29 Am. Phil. Q.173, 173 (1992).

25. I mention some of these in Section XIII, infra.

26. Most punishment theorists have discussed telishment reductiones at least briefly. Some noteworthy recent discussions include Binder, Guyora & Smith, Nicholas J., Framed: Utilitarianism and Punishment of the Innocent, 32 Rutgers L.J. 115 (2000); Rosen, Frederick, Utilitarianism and the Punishment of the Innocent: The Origins of a False Doctrine, 9 Utilitas23 (1997); Smilansky, Saul, Utilitarianism and the “Punishment” of the Innocent: The General Problem, 50 Analysis256 (1990); Goldman, Alan H., The Paradox of Punishment, 9 Phil. & Pub. Aff.42 (1979).

27. The familiar Rossian distinction between “pro tanto” or “prima facie” duties (reasons, wrongs) and “all-things-considered” duties (reasons, wrongs) plays an important role in this paper. My default usage is all things considered. I add the qualifier pro tanto whenever it applies.

28. See Jonathan Dancy, Ethics without Principles (2004); F.M. Kamm, Morality, Mortality: Rights, Duties, and Status (1996); Kagan, Shelly, The Additive Fallacy, 99 Ethics5 (1988); Kamm, F.M., Killing and Letting Die: Methodology and Substance, 64 Pac. Phil. Q. 297 (1983).

29. See Jeffrey Brand-Ballard, Book Review, Notre Dame Phil. Revs. (2005) (reviewing Garrett Cullity, The Moral Demands of Affluence), http://ndpr.nd.edu/review.cfm?id=2881.

30. See Garrett Cullity, The Moral Demands of Affluence (2004); Tim Mulgan, The Demands of Consequentialism (2001); Liam B. Murphy, Moral Demands in Nonideal Theory (2000). Similar strategies are used in Peter Unger, Living High and Letting Die: Our Illusion of Innocence (1996); Jonathan Bennett, The Act Itself (1995); Shelly Kagan, The Limits of Morality (1989).

31. See Section XIII, infra.

32. E.F. Carritt observes: “[I]f some kind of very cruel crime becomes common, and none of the criminals can be caught, it might be highly expedient, as an example, to hang an innocent man, if a charge against him could be so framed that he were universally thought guilty.” Carritt, supra note 21, at 65. H.J. McCloskey imagines “a sheriff fram[ing] an innocent Negro in order to stop a series of lynchings which he knew would occur if the guilty person were not immediately found, or believed to have been found.” McCloskey, Non-Utilitarian Approach, supra note 15, at 255.

33. See Michael, supra note 24, at 173; Duff, supra note 13, at 7.

34. Duff notes that “the 1970s saw a striking revival of retributivist, anticonsequentialist thought.” Duff, supra note 13, at 7. See also John Braithwaite & Philip Pettit, Not Just Deserts 209 (1990) (“the new retributivism has sounded the death-knell of traditional, consequentialist approaches to criminal justice”); Alexander, Larry, Consent, Punishment, and Proportionality, 15 Phil. & Pub. Aff.178, 182 (1986) (noting “liberals' uneasy recent return to retributivism”).

35. See, e.g., Bradley, supra note 21; Carritt, supra note 21; McCloskey, Non-Utilitarian Approach, supra note 15; Ross, supra note 21.

36. The conclusion that “nothing works” appears in Martinson, Robert, What Works? Questions and Answers about Prison Reform, 22 Pub. Int.22 (1974). See also McCoy, Candace, The Politics of Problem-Solving: An Overview of the Origins and Development of Therapeutic Courts, 40 Am. Crim. L. Rev.1513, 1513–14 (2003) (“Most observers trace the scholarly roots of [the] trend [against rehabilitationism] to . . . Martinson's 1974 article”).

37. See, e.g., Gobert, James J., Psychosurgery, Conditioning, and the Prisoner's Right to Refuse “Rehabilitation,” 61 Va. L. Rev.155 (1975).

38. See, e.g., Jeffrie G. Murphy, Retribution, Justice, and Therapy (1979). A few theorists have even concluded that the state is morally forbidden to punish, at least until it develops more humane and effective methods. See David Boonin, The Problem of Punishment (2008); Golash, supra note 15; Ted Honderich, Punishment: The Supposed Justifications (1969).

39. As noted in Duff, supra note 13; Braithwaite & Pettit, supra note 34, at 209; Alexander, supra note 34.

40. The publication of Andrew von Hirsch, Doing Justice (1976) has been credited with launching the “just deserts” movement. See Stephen P. Garvey, Punishment as Atonement, 46 UCLA L. Rev. 1801, 1840 n.165 (1999).

41. Garvey mentions without endorsing the view that “the widespread embrace of the rhetoric of retributivism—of just deserts and righteous indignation—has tended to sponsor extreme policies and practices that thoughtful retributivists themselves might well renounce.” Garvey, supra note 40, at 1839.

42. See Mauer, supra note 5.

43. The role of these associations in intellectuals' rejection of consequentialist theories of punishment is discussed in Binder & Smith, supra note 26, at 224.

44. Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans., 2d ed. 1995). As early as 1985, criminologist Stanley Cohen could quip that “to write today about punishment and classification without Foucault is like talking about the unconscious without Freud.” Stanley Cohen, Visions of Social Control 10 (1985).

45. I use the term more broadly than does Rawls. I define “telishment” as the deliberate imposition of a disadvantage on someone without reasonable belief that her actions deserve such a disadvantage. It is a matter of definition that the goal of telishment, when one exists, cannot be that of delivering retribution to the individual. Rawls defines “telishment” as an institution that authorizes officials to condemn an innocent man whenever they believe that doing so will serve the best interests of society. See Rawls, supra note 18, at 11.

46. If the officials do not reasonably believe that Ian deserves such punishment, then their actions are also subjectively wrong or “blameworthy.”

47. Named after J.J.C. Smart, the act-utilitarian who pioneered it in J.J.C. Smart & Bernard Williams, Utilitarianism: For and Against 67–73 (1973). See Daniel Dennett, Philosophical Lexicon (1987). Other consequentialists who take outsmarting positions in response to criticism include Unger, supra note 30; Kagan, supra note 30; R.M. Hare, Moral Thinking: Its Levels, Method, and Point (1981); Peter Singer, Practical Ethics (1979).

48. See Bradley, supra note 21, at 29; Ross, supra note 21, at 56–64.

49. These developments are discussed in Duff, supra note 13, at 3–14; Moore, Placing Blame, supra note 15, at 94–102, 155–188; Primoratz, supra note 15, at 33–65; Ten, Crime, supra note 18, at 7–37.

50. See, e.g., Thomas Hurka, Perfectionism (1993); Sen, Amartya, Rights and Agency, 11 Phil. & Pub. Aff.3 (1982). See also Samuel Scheffler, The Rejection of Consequentialism 27 (rev. ed. 1994) (mentioning “pluralist lexical consequentialism”).

51. Moore, Placing Blame, supra note 15, at 155–159. See also Braithwaite & Pettit, supra note 34. Consequentialist retributivism resembles what Robert Nozick calls a “utilitarianism of rights.” Robert Nozick, Anarchy, State, and Utopia 28 (1974).

52. See Duff, supra note 13, at 10; Primoratz, supra note 15, at 60; Matravers, supra note 22, at 29.

53. On direct versus indirect consequentialism, see Shelly Kagan, Evaluative Focal Points, in Morality, Rules, and Consequences (Brad Hooker et al. eds. 2000).

54. See Rawls, supra note 18.

55. See Brad Hooker, Ideal Code, Real World 32 (2000).

56. Braithwaite and Pettit make this point in their defense of “dominion” as “knowledge of assured absence of constraint.” Braithwaite & Pettit, supra note 34, at 61–69.

57. “Impermissible” means “morally impermissible” unless otherwise noted.

58. Generalization arguments are implicit in Goldman, supra note 26; and Schedler, supra note 21.

59. This position is taken in Goldman, supra note 26; Schedler, supra note 21; and Jeffrie Murphy, Marxism and Retribution, 2 Phil. & Pub. Aff. 217, 218–219 (1973).

60. For this use of tu quoque, see Dolinko, David, Three Mistakes of Retributivism, 39 UCLA L. Rev.1623, 1632 (1992). See also Davis, Michael, Method in Punishment Theory, 15 Law & Phil.309, 325 (1996) (“you too argument”). Do not confuse this form of argument with the logical fallacy known as tu quoque. The fact that one's opponent uses invalid reasoning does not entitle one to use that same reasoning. The arguments that I discuss do not have this form.

61. See Section V, supra, on “outsmarting.”

62. All real criminal justice systems generate false positives. This is a statistical certainty. According to one estimate, over ten thousand factually innocent defendants are convicted annually in the United States. See C. Ronald Huff, Arye Rattner & Edward Sagarin, Convicted but Innocent: Wrongful Conviction and Public Policy (1996). False-positive versions of the tu quoque appear in Christopher, Russell L., Deterring Retributivism: The Injustice of “Just” Punishment, 96 Nw. U. L. Rev.843 (2002); Bagaric, Mirko & Amarasekara, Kumar, The Errors of Retributivism, 24 Melb. U. L. Rev.124, 144–147 (2000); Dolinko, David, Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment, 16 Law & Phil.507 (1997); Philips, Michael, The Inevitability of Punishing the Innocent, 48 Phil. Stud.389 (1985); Alexander, Larry, Retributivism and the Inadvertent Punishment of the Innocent, 2 Law & Phil.233 (1983); Schedler, George, Can Retributivists Support Legal Punishment?, 63 Monist185, 187 (1980); Wertheimer, Alan, Punishing the Innocent—Unintentionally, 20 Inquiry45 (1977).

63. Proponents of generalization argue that states take reasonable precautions against false positives. See Duff, R.A., In Defence of One Type of Retributivism: A Reply to Bagaric and Amarasekara, 24 Melb. U. L. Rev. 411, 423–424 (2000); Alexander, Retributivism, supra note 62, at 244–246.

64. See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation ch. 13, §4.XIV (1961). Nigel Walker calls it “obiter punishment” in Nigel Walker, Why Punish? (1991). See also Duff, Punishment, supra note 13, at xiii.

65. See Donald Braman, Doing Time on the Outside: Incarceration and Family Life in Urban America (2004); Mendez, Garry A. Jr., Incarcerated African American Men and Their Children: A Case Study, 569 Annals Am. Acad. Pol. & Soc. Sci. 86 (2000); Sack, W.H., Children of Imprisoned Fathers, 40 Psychiatry163 (1977); Schneller, D.P., A Study of Some Social and Psychological Effects of Incarceration on the Families of Negro Prisoners, 14 Criminology402 (1975); Schwartz, M.C. & Weintraub, J.F., The Prisoner's Wife: A Study in Crisis, 38 Fed. Probation20 (1974).

66. See, e.g., Rachel King, Capital Consequences: Families of the Condemned Tell Their Stories (2005).

67. As Ewing notes:

it is obvious that in most cases the punishment of an offender brings suffering on his family and those closely connected with him, though they are innocent of the offence in question. A retributively just punishment for one person . . . would thus involve a retributively unjust punishment for several.

A.C. Ewing, The Morality of Punishment 43 (1929). See also Rosen, supra note 26, at 34. Feinberg observes that:

it is usually impossible to punish an offender without inflicting suffering on those who love or depend upon him and may themselves be entirely innocent, morally speaking. In that way, punishing the guilty is self-defeating from the moralistic retributive point of view. It will do more to increase than to diminish the disproportion between unhappiness and desert throughout society.

Joel Feinberg, The Classic Debate, in Philosophy of Law 613 (Joel Feinberg & Hyman Gross eds., 1995).

68. Anthropologist Donald Braman notes how rarely collateral damage is discussed by legal scholars and policy-makers in Braman, supra note 65, at 5. Some exceptions to my generalization are close-range witnesses to collateral damage. See, e.g., Lewis E. Lawes, Life and Death in Sing Sing 156 (1937) (“[F]or the murderer himself, his suffering is soon over. The wives, the mothers, the children are the ones who suffer. . . . I have very grave doubt whether society is right in inflicting this terrible burden on the innocent family of the murderer”).

69. See Smith, Bruce P., The Presumption of Guilt and the English Law of Theft, 1750–1850, 23 Law & Hist. Rev.133 (2005).

70. Between 1925 and 1980, the number of inmates in state and federal institutions rose from 91,669 to 315,974. The incarceration rate rose from 79 to 138 per 100,000 residents during the same period. See Department of Justice, Bureau of Prison Statistics, Prison 1925–1981 (1982).

71. One could also take the “outsmarting” route mentioned in Section V, supra.

72. Similar points appear in Kershnar, Stephen, The Justification of Deserved Punishment via General Moral Principles, 33 S. J. Phil.461, 470–472 (1995); Alexander, Consent, supra note 34, at 179; Schedler, Can Retributivists Support, supra note 62, at 190–193; David A.J. Richards, The Moral Criticism of Law 202, 238–239, 242–245 (1977).

73. In very limited circumstances, failing to report a crime or knowingly benefiting from criminal activity constitutes a crime in itself. If an affiliate is convicted of such a crime, then the state should punish her of course. But in such cases there is no retributivist justification for supplementing the punishment with collateral damage.

74. One might respond that Nebraska's policy is reasonable while California's is not. That may be so, but the question then becomes how to explain why Nebraska's policy but not California's is reasonable. I argue that we cannot explain this difference in terms of desert and that there may not be such a difference. In Section XI.C, infra, I suggest that if Nebraska's policy is reasonable (a conclusion to which I am not committed), then we could perhaps explain this fact by showing that a policy allowing affiliates greater access to inmates would be so inefficient that society would suffer greater aggregate disadvantages than affiliates suffer under Nebraska's policy. My point is that this is not a desert-based rationale.

75. McCloskey sends his scapegoat to the gallows in McCloskey, Non-Utilitarian Approach, supra note 15, at 255.

76. The minimalist can agree, moreover, that if a certain sentence would cause death or bodily harm to an affiliate, then it would be wrong for the state to inflict it.

77. This argument derives from Ronald Dworkin, Principle, Policy, Procedure, in A Matter of Principle (1985).

78. This is “permissive” or “positive” retributivism. See Ten, Positive Retributivism, supra note 11.

79. Alec Walen suggested this argument in conversation.

80. See the similar hypothetical in Duff, Punishment, supra note 13, at 6.

81. Retributivists could try to distinguish Nebraska from Gangster Dad by observing that Nebraska inflicts damage on the very individual whose wrongdoing justifies the infliction, whereas the state in Gangster Dad inflicts damage on someone other than the individual whose wrongdoing justifies the infliction. But this purported contrast overlooks the very fact of collateral damage. Nebraska inflicts damage on both the individual whose wrongdoing justifies the infliction (George) and on his affiliates. Draconia, in Gangster Dad, does likewise.

82. Following Joel Feinberg, The Expressive Function of Punishment, in Doing and Deserving (1970). Expressive theories of law in general include Anderson, Elizabeth S. & Pildes, Richard H., Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503 (2000).

83. We can either conceptualize stigma as an intrinsic harm or focus on the psychological harms associated with stigmatizing treatment.

84. It sends them nothing beyond the generic message that any occasion of state punishment sends to its citizens at large (e.g., “justice is being done today”).

85. I do not deny that punishment and telishment as such inflict additional psychological injuries (stigma and shame) beyond the primary harms of physical pain and injury and the deprivation of personal liberties, resources, and/or legal rights. Denunciation may indeed serve as an important component of punishment on any of several theories. These injuries may be more severe if the convict believes herself to be innocent and more severe still if she believes that the state knows of her innocence.

86. I follow the contemporary trend of using “doctrine of double effect” to denote a family of doctrines that mark moral distinctions between actions with intended bad effects and those with merely foreseen bad effects.

87. See Duff, In Defence, supra note 63, at 423–424; Bagaric & Amarasekara, supra note 62, at 144–147; Dolinko, Three Mistakes, supra note 60, at 1633–1634; Moore, Placing Blame, supra note 15, at 158, 690–691; Louis Kaplow & Steven Shavell, Fairness versus Welfare 344–346 n.106 (2001). Schedler acknowledges that “the difference . . . between punishment officials and telishment officials is that the latter directly intend an objectionable result, while the former voluntarily perform actions they know will have the objectionable result.” Schedler, Can Retributivists Support, supra note 62, at 189. But he proceeds to ignore the fact that this is precisely the difference that double effect deems morally significant.

88. I can imagine a case of overdetermination in which Nebraska incarcerates George in order to harm him and also in order to harm Martha as a means to harming George further. I do not know whether most people would regard the latter as an impermissible reason to incarcerate George. Rather than pressing the point, I grant the restrictionist that we are not committed to the judgment that harming Martha for that reason would be permissible.

89. The literature is vast. Modern defenders of double effect include Fitzpatrick, William J., The Intend/Foresee Distinction and the Problem of “Closeness,” 128 Phil. Stud. 585 (2006); Quinn, Warren, Actions, Intentions, and Consequences: The Doctrine of Double Effect, 18 Phil. & Pub. Aff. 334 (1989); Thomas Nagel, The View from Nowhere 175–180 (1986). Critics include McIntyre, Alison, Doing Away with Double Effect, 111 Ethics219 (2001); Reibetanz, Sophia, A Problem for the Doctrine of Double Effect, 98 Proc. Aristotelian Soc. 217 (1998); Bennett, supra note 30; Fischer, John Martin, Ravizza, Mark & Copp, David, Quinn on Double Effect: The Problem of “Closeness,” 103 Ethics707 (1993); Kagan, supra note 30; Davis, Nancy, The Doctrine of Double Effect: Problems of Interpretation, 65 Pac. Phil. Q. 107 (1984); Scheffler, supra note 50.

90. See Enoch, David, Intending, Foreseeing, and the State, 13 Legal Theory69 (2007); Sunstein, Cass R. & Vermeule, Adrian, Deterring Murder: A Reply, 58 Stan. L. Rev. 847, 849–852 (2006); Robert E. Goodin, Utilitarianism as a Public Philosophy 51–57 (1995).

91. See, e.g., Universal Declaration of Human Rights (1948), arts. 12, 16, 20.

92. Some readers will find it intuitive to think of this right in terms of the unique good of marital lovemaking, but this is not necessary.

93. Some libertarians make a similar mistake when they ignore the state's use of coercion to prevent homeless people from trespassing on “private property” in search of shelter or food. For criticism, see Sterba, James P., From Liberty to Welfare, 105 Ethics64, 70 (1994). See also Cass R. Sunstein, The Partial Constitution 71–75 (1993) (discussing theories of state action in constitutional law that treat as neutral a “status quo baseline” of common-law rights).

94. Fewer Chaperonians will marry after this despicable policy takes effect, but we can imagine its impact on those who are already married.

95. Of course, Nebraska's policy is less restrictive than Chaperonia's, but so is California's policy less restrictive than Draconia's. Generalization arguments disregard this difference.

96. Someone might object that Chaperonia's policy is wrong not because it separates an innocent individual from her spouse but because it separates two innocent spouses from one another. If so, then the wrongness of Chaperonia's policy does not entail the wrongness of Nebraska's. As George is guilty, Nebraska does not separate two innocent spouses. This is true, but the critic's premise concedes the argument. On the critic's premise, if both Martha and George are innocent, then the state may not separate them, but if George is guilty, then the state may forcibly prevent Martha from seeing him despite her innocence—Nebraska's desire to punish George efficiently justifies coercing innocent Martha. My point in this paper is that justifying Nebraska's policy commits us to the principle that one individual's wrongful conduct can justify coercively burdening someone else who deserves better. This principle contradicts retributive restrictions. Thanks to an anonymous reviewer for Legal Theory for raising this objection.

97. For discussion of the principle of permissible harm, see Kamm, supra note 28, at 172–204.

98. Nebraska could still punish George if Martha did not exist or did not wish to visit him. But given that George and Martha want to see each other, excluding Martha hurts George more.

99. For certain criminals the uniquely fitting penalty might be “punishing” an affiliate. What better punishment for a child kidnapper than to “kidnap” his own child? The parent of a kidnapped child might see this as the only adequate retribution for the kidnapper.

100. “Corruption of blood” is one such punishment. See U.S. Const. art. III, §3.

101. Notice that in this respect Nebraska's policy resembles California's policy of giving long sentences to all three-strikes convicts, some in excess of what they deserve, because it knows that some of them will reoffend but it cannot identify which ones.

102. Kent Greenawalt argues that if the state has legitimate authority, citizens are virtually always morally obligated not to interfere with the enforcement of its commands. Kent Greenawalt, Conflicts of Law and Morality 55 (1987).

103. Restrictionists could point out that Nebraska's laws prohibiting interference with the state's penal operations apply to everyone on an equal basis. By contrast, Draconia singles out Ian for telishment. This will not work. True, laws against interfering with state penal operations apply to everyone equally ex ante. Ex post, however, these laws burden the affiliates of prison inmates much more than others are burdened by them. The ex post perspective is the relevant one in this debate. For comparison, imagine a Draconian statute that randomly selects Ian for telishment for some public purpose. Such a policy burdens everyone equally ex ante. But our convictions condemn it as forcefully as ever because of the ex post burden.

104. See Section XI.C, infra.

105. The U.S. Supreme Court has also recognized a general constitutional right to marry, including the right of inmates and noninmates to marry one another. See Turner v. Safley, 482 U.S. 78 (1987); Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia 388 U.S. 1 (1967). Some states permit “conjugal visits,” but constitutional rights do not extend even to this. See Hernandez v. Coughlin, 18 F.3d 133 (2d Cir. 1994). See also Hardwick, Virginia L., Note: Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. Rev. 275 (1985).

106. Hernandez, supra note 105, at 137–139.

107. Even German prisons have not gone this far, despite being officially committed to a “principle of normalcy” (Angleichungsgrundsatz) that attempts to approximate life on the outside for inmates. For an illuminating discussion of the German system, see James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe 86–92 (2003).

108. See, e.g., Rawls, supra note 18.

109. The term appears in Dancy, supra note 28, at 38–52.

110. In fact, one might claim that deliberately inflicting damage simpliciter is pro tanto wrong-making whether the damage is deserved or undeserved.

111. Dolinko remarks that:

a fair amount of retributivist writing . . . is marred by the presence of a certain moral smugness, a self-satisfied belief that we can have our moral cake and eat it too—we can impose afflictive sanctions on criminal offenders while feeling (unlike utilitarian deterrence theorists) that what we are doing is no regrettable though necessary evil but instead a positive good: respecting persons, doing justice, and generally living up to the most highminded and Kantian ethical demands.

Dolinko, Three Mistakes, supra note 60, at 1625. See also Braithwaite & Pettit, supra note 34, at 6 (noting same “smugness”).

112. Cruel and Usual: California's “Three Strikes” Law Goes Too Far, Pittsburgh Post-Gazette, Nov. 12, 2002, at A8 (commenting upon oral argument in Lockyer v. Andrade, 538 U.S. 63 [2003]).

113. Perhaps these cases trigger the emotional engagement effect demonstrated experimentally in Greene, Joshua D. et al. , An fMRI Investigation of Emotional Engagement in Moral Judgment, 293 Science2105 (2001).

114. I am grateful to several anonymous reviewers who helped me to improve my arguments. I presented ancestors of this paper at the 29th Conference on Value Inquiry (Tulsa, Oklahoma) and at the 2008 Stanford/Yale Junior Faculty Forum at Yale Law School, receiving useful feedback on both occasions. I have learned from conversations with Ned Beach, Richard Behling, Mitchell Berman, James Brummer, Shelly Kagan, Whitley Kaufman, Thad Metz, Stephen Morse, Stephen Nathanson, Scott Shapiro, Alec Walen, and Eric Wiland. I also learned from students in my punishment theory seminars at George Washington University in 2004 and 2005. Larry Alexander and Richard Bronough made useful suggestions regarding earlier drafts. My wife, Laura, read and criticized the paper several times. None of these individuals is responsible for whatever errors and inadequacies remain.

INNOCENTS LOST: Proportional Sentencing and the Paradox of Collateral Damage

  • Jeffrey Brand-Ballard (a1)

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