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The connections between retributive justice, broadly conceived, and distributive or social (in) justice have long troubled criminologists, moral and legal philosophers, and criminal justice practitioners. One reason for this is that the economically deprived make up a disproportionate number of criminal offenders (and victims), a fact made even more striking in many places when overlaid with statistics about race. Another is that inequalities within liberal democratic societies have risen since the 1970s; dramatically in some places such the USA and UK. This rise has accompanied a dramatic rise in punishment and incarceration. Assuming inequality is a proxy for distributive injustice, then, the world is becoming less just and, in some places, more punitive. These facts compel our attention in (at least) two ways. First, there is a practical public policy question. If crime rates are correlated to poverty and/or inequality, then one way to address crime is through social justice and the redistribution of income, wealth, and opportunities. This is no doubt sensible, but it is not the subject of discussion here. Rather, second, juxtaposing criminal and distributive justice brings into focus a normative question of whether social justice is a precondition of legitimate criminal justice, or more minimally, whether – and if so in what ways – social injustice renders the imposition of criminal liability and sanctions morally problematic.
It is this normative issue that is discussed below. Certainly, some philosophers concerned with the justification of punishment have held that conditions of social injustice – such as those prevalent in much of the developed world – render punishment at best problematic and at worst morally impermissible. Thus, Antony Duff (1986, p. 294) argues that punishment “will not be justifiable unless and until we have brought about deep and far-reaching social, political, legal, and moral changes in ourselves and our society”. Similarly, Jeffrie Murphy (1973) claims that existing social injustice fatally undermines the only successful theory through which punishment can be made permissible. And David Bazelon (1976, p. 385) that “there can be no truly just criminal law in the absence of social justice.”
This research paper will consider the arguments for the proposition that social injustice renders the imposition of criminal liability and sanctions morally problematic. It does not deal with the question of whether lesser punishments are merited by those who are disadvantaged by injustice, but rather with the moral legitimacy of punishment as a whole in circumstances of distributive injustice. The first set of arguments focuses on theories of punishment; the second on the responsibility of the offender; the third on whether an unjust society has the standing to call offenders to account.
In all cases, it is assumed that the background is one in which the law is not egregiously unjust. That is, the discussion does not encompass societies in which, for example, the law formally discriminates against non-white persons with respect to political and property rights. Such societies clearly raise issues about whether obedience is owed by those against whom discrimination is practiced and about the moral and legal liability of those who break the law. However, the assumption here is that the system has no such formal rules, but that the social and economic distribution of goods is unequal and unjust (which will have implications for the value of the formal rights enjoyed by all). In short, the focus is on societies such as the USA and UK, not on those such as South Africa in the era of Apartheid.
Ideal Theories And Actual Practices
There are many theories that purport to justify or render permissible state punishment. Such theories tend to be ideal; that is, they develop philosophical accounts of the justification of punishment assuming certain ideal conditions. The question then arises as to whether those theories remain compelling when applied to the actual world. It is not possible to discuss each and every such theory here, but consider some general approaches and how they might be affected by social injustice.
Consequentialist theories justify punishment by appeal to its good consequences. A system of punishment is justified if it brings about better overall consequences than any alternative system including the option of doing nothing. In general, consequentialists claim that punishment is justified because it secures good consequences through individual and general deterrence, rehabilitation, and incapacitation. These are empirical claims. If punishment were to fail to realize good consequences, or fail to realize as good a set of consequences as could be attained by an alternative policy, then it is not justified on this basis.
Clearly issues of social justice will as a matter of fact have an effect on any such empirical claims. It may be best to divert resources away from criminal justice and toward social justice if that will be more effective in reducing crime (or realize other good consequences that outweigh any resulting bad consequences). It may be that rehabilitation is better realized by providing social and economic opportunities rather than by punishment, and so on. These matters can only be settled by empirical enquiry, not by philosophical armchair reflection.
Varieties Of Desert
According to one variety of desert-based retributive justice, punishment is justified if and only if it restores the fair balance of benefits and burdens that the original crime disturbed. This so-called fair-play theory was pioneered by Herbert Morris (1968) and Jeffrie Murphy (1973).
In Murphy’s formulation, the argument relied on a hypothetical social contract. In return for security and assurance, self-interested persons would accept an authority whose purpose was to ensure those goods by upholding and enforcing the agreed rules. That is, the citizen benefits from the rule of law and all that comes with it and in return undertakes to maintain society’s rules through his obedience to them. Failure to abide by the rules is a form of “free-riding”; the offender gains the advantages of the system without having to “pay” for them through his own self-restraint. In being punished – in (hypothetically) agreeing to the system of punishment under which he is now made to suffer – the offender pays a different price, one designed to remove the extra benefit he has attained and thus restore the status quo ante.
However, as Murphy was quick to point out, the contract here is reciprocal. The authority of the law – and so the duty of obedience on the part of the citizens – stems from its being part of a system of rules to which reasonable self-interested persons could agree. Thus, if the system of rules is unjust – if, for example, it enforces fundamentally unjust distributive arrangements or discrimination between persons on the basis of their skin color – then citizens no longer have a duty of obedience and the state no longer has the moral authority to punish breaches of the rules.
This account of punishment has been subject to criticism and few (even among its early adherents) continue to adhere to it (for a sympathetic contemporary account, see Dagger 1993; for a summary of the main criticisms, see Matravers 2000, pp. 52–72), but the contractualist worry is a genuine one. To the degree that society is conceived of as a cooperative endeavor in which reciprocally agreed rules are enforced and obeyed, there is a concern that the state’s failing to keep its side of the bargain, so to speak, renders illegitimate its enforcing of those rules.
A different, but related worry, affects the censure account of retributive punishment that replaced the “fair-play” account as the leading desert theory in the literature. According to Antony Duff and others, the justification of punishment lies wholly, or in part, in its calling the alleged offender to account and, should the alleged offender prove to have performed the wrongful act without excuse or justification, in its expressing censure of the offender on behalf of the polity. In imposing a penal sanction, the polity provides a vehicle for this censure and a potential vehicle for the offender’s penitential response.
In his early work (1986, pp. 291–299), Duff is clear that social injustice renders this account inapplicable to the real world. Such injustice is a symptom, and cause, of the absence of a genuine moral community on whose behalf, and in whose name, the offender is called to account. If there are no shared values, then the offender cannot be censured in their name and cannot in turn use punishment to restore herself to those values and so to the community. Like Murphy, Duff argues that the gap between the ideal and the actual is so great as to render the ideal unusable. However, in later writings, Duff becomes less pessimistic although he still poses the question of whether those who have been systematically excluded from their fair shares of society’s goods can be thought to be bound by the laws of that society, a question he thinks likely to be answered in the negative for many offenders (2001, pp. 183–184). This motivates a different worry, considered below, which is that social injustice undermines the standing of the society to call the offender to account.
Consequentialist, fair-play, and censure-based theories of punishment, then, are each in their own way threatened by conditions of social injustice. In all these cases, the fact of injustice threatens the viability or applicability of the philosophical theory that purports to justify punishment in the real world. However, desert theorists (in particular) also have a different worry about social injustice; this is not that it renders the theory – that punishment is justified because and to the degree that it is deserved – inapplicable, but that it undermines the deservingness of individual offenders; it renders previously unjustly treated citizens less blameworthy and so less deserving of punishment.
Blameworthiness And Distributive Injustice
The arguments of the section above suggest that social injustice might challenge the legitimacy of the law, the account of political obligation, or the justification of the system of punishment as a whole. A (perhaps) more familiar worry is that in some way or other, defendants from indigent, or unjustly disadvantaged, backgrounds are less to blame than are others. This section considers this worry in relation to cases of excuse and of justification.
Rotten Social Background
Perhaps the most famous debate in relation to doing penal justice in conditions of social injustice arose out of a 1973 case, US v Alexander. Two black defendants were charged with the murder of two white victims. The defendants had shot the victims following an altercation at a fast-food restaurant during which the victims had called the defendants “God-damned niggers.” On behalf of one of the defendants, who was not mentally ill according to any recognized diagnostic categories, a psychiatrist nevertheless testified that the defendant suffered from an “emotional illness” that was rooted in his upbringing in a very poor and deprived neighborhood. This upbringing had left the defendant with an acute sensitivity to racial discrimination such that when he had been subject to racist abuse, he had felt “an irresistible impulse to shoot” (for useful accounts of the issues here, see Green 2011; Heffernan 2000). The judge allowed the jury to consider the mental capacity of the defendant, but mindful of the possibility that the jury might be moved by pity or sympathy for the defendant given his upbringing, the judge went on to say to the jury that it ought not to be concerned “with the question of whether a man had a rotten social background.” The defendants were convicted.
The court of appeals upheld the conviction, but one of its judges, David Bazelon, in part dissented. He argued that there was a relevant causal claim linking the defendant’s rotten social background and the defendant having no “meaningful choice when the racial insult triggered” his response in the restaurant (United States v Alexander, 471 F.2d 923: 960). The truth of such a causal claim would need to be considered by the jury, but Bazelon wrote confidently of the social science evidence in its support and of the need to consider what to do with such defendants should they prove innocent, but dangerous (holding out the options of therapy or preventive detention).
The idea of a defense of rotten social background was taken up by Richard Delgado (1985). Delgado argued that the law should recognize a new excuse based on extreme poverty and deprivation. As an excuse, the claim would not be that the conduct was justified. Rather, the defendant would have to prove that at the time of acting, her conduct was the result of behaviors shaped by her background such that she met (an extended understanding of) normal excusing conditions: For example, she was unable accurately to understand the nature and consequences of her conduct; she was suffering from involuntary rage; or was otherwise unable to control her conduct.
It is important to note that neither Bazelon nor Delgado argues that the fact of an (unusual) causal history to the agent’s conduct is enough to excuse. All actions have causes, some are more unusual than others and some evoke sympathy, but as Stephen Morse insists (2000, p. 130), “causation is neither an excuse per se nor the equivalent of hard choice (so-called compulsion), which is an excusing condition.” Rather, the argument is that the particular background of deprivation is such as to render some defendants excused at the time of their conduct because it interferes with those ordinary capacities on which the law depends when holding persons responsible. In this, a defense of rotten social background would come close to the defense of “battered woman syndrome,” in which it is argued that a history of violent abuse can render a woman incapable of (legally) responsible behavior even at some later point when her conduct seems otherwise to be chosen.
Proponents of the excuse of rotten social background accept that the defendant’s conduct was wrongful; they merely argue that it may be excused. However, another response to social injustice is to regard some conduct performed by the disadvantaged as justified. Consider a case imagined by Jeremy Waldron (2000, pp. 104–105). A homeless, unemployed, destitute man in a society with little or no welfare assistance scavenges in a park. He comes across a half-eaten hamburger and begins to eat it. However, the person who had bought the hamburger, having eaten half, was planning to feed the rest to the birds. He complains to the police and the destitute man is arrested and charged with theft.
The defendant claims the justification of necessity. Before considering this, it is worth noting how this differs from the claim of excuse in rotten social background. In the case of excuses, the conduct is wrong, but excused. In the case of justification, the conduct itself is not wrongful. Thus, in rotten social background cases, there is no obvious restriction on the possible conduct to which the excuse might attach or on the range of victims of the conduct. As is clear from the Alexander case, the excuse potentially covers serious wrongs such as homicide and it would have made no difference to the case whether the victim was poor or rich. In the justification case under discussion, it is clear that the conduct that is justified is severely restricted. The defendant might claim justification for picking up the hamburger, but he could not do so for killing the owner so as to get the hamburger (no matter how hungry he was). Similarly, the agent could not claim justification for taking the last morsel of food from a similarly situated indigent victim. These differences, of course, reflect the different structures of excuses and justifications.
Although Waldron is clear that there is a moral case for the justifiability of the destitute man’s actions, he is confident that any legal system dedicated to the protection of property rights will reject the necessity defense in this instance. To establish necessity in the common law tradition, the defendant must show imminent threat; that the conduct would be effective in ameliorating that threat; that no alternative legal means to do the same was available; that the conduct was less harmful than the harm threatened; and that the circumstances that gave rise to the threat are not attributable to her.
The threshold for the use of the necessity defense is very high. To rebut it, the prosecution would only have to show that the indigent eater of the hamburger was not in danger of death or serious injury, or that he could have gone from the park to the local charitable shelter, or that his condition was due to his culpable failure to find work. In short, necessity and long-term poverty do not map easily onto each other. Moreover, as Waldron insists, systems of law protect the orderly and predictable governance of property, an order that cannot be subject to disruption whenever someone feels the need to appropriate something of someone else’s.
The arguments in this section demonstrate the difficulties in matching concerns about social justice with issues in criminal justice. In one way, this is right; not all poor people commit crimes (and not all crimes are committed by the poor) and it would be demeaning to large sections of the population to pretend otherwise. If poverty or disadvantage is to be relevant to judgments of the offender’s liability, then it has to be shown either that the offender’s background relevantly impaired him at the time of acting, or that his actions were legally justified. It is likely that these hurdles will not in fact be often cleared.
However, this seems to leave the issue unresolved. It does matter that society is distributively unjust and it does trouble us that those who systematically suffer most from injustice also disproportionately appear in the criminal justice system as victims and offenders.
The State’s Standing To Hold The Offender To Account
The focus has so far been on the applicability of theories of punishment to the real world and on the offender. Social injustice raises genuine questions for the first, but the focus on the blameworthiness of the offender seems either to lead in directions covered by the existing criminal law (with respect to excuses and justifications) or to risk widening the scope of the enquiry in ways that potentially demean the poor and disadvantaged. Returning to the original issue, however, suggests an alternative approach in which the focus is not on the offender, but on the state.
Assume – reasonably enough in most cases – that the offender acts culpably. The law prohibiting the conduct is reasonable, the offense is wrongful, and the offender is blameworthy for it. To take an example, a disadvantaged offender defrauds the state by claiming unemployment benefits while working on the black market for cash.
In response to cases like this, Antony Duff asks not whether the offender is responsible, but to whom he is responsible. That is, criminal responsibility is a relational concept; an alleged offender is responsible for some conduct to someone or some institution. Thus, a teacher is responsible for marking her students’ essays and that responsibility is owed to her students. Moreover, the teacher can call her students to account for failing to submit their essays, and so on. In short, with respect to essays (and no doubt other things), the teacher has standing.
The question Duff poses is whether a state’s maintaining of chronic and systematic injustice removes its standing to call offenders to account.
As the paper of one of his papers suggests – “‘I Might Be Guilty, But You Can’t Try Me’: Estoppel and Other Bars to Trial” (2003), Duff is skeptical that unjust societies retain the standing to call to account those whom they have treated unjustly.
This is an attractive response to the issues. It does not deny the responsibility of indigent offenders, and it surely captures a plausible intuition (and mirrors many real life situations in which persons may think, “I may be wrong, but who are you to criticize?”). There is surely something wrong in being held to account by an institution that is itself in violation of the values to which it appeals in its calling the alleged offender to answer for her actions (cf Sykes and Matza 1957 on “The Condemnation of the Condemners”).
However, as stated, the account is underdeveloped. Two questions arise: First, does the unjust state lose the standing to judge all offenders and offenses (even those unrelated to the injustice)? Second, does the unjust or immoral state lose all standing across all dimensions? To see this, first contrast the unemployed offender mentioned above who defrauds the state by cheating on his social security payments and the same person who beats his wife. It may be thought that the state lacks the standing to call him to account for fraud, given a background of systemic injustice, but why should this affect its standing to call him to account for assault? Second, consider the standing of the UK state to call a well-off defendant to account for insurance fraud, given recent revelations that the same state had deliberately misled its citizens in the run-up to the second Iraq war and had, when fighting terrorists in Northern Ireland in the 1970s, connived in the extrajudicial execution of (at least one) political agitator (for a summary of these criticisms, see Matravers 2006).
In short, the argument from standing seems to do too much. It is in that sense reminiscent of Murphy’s argument that legitimate punishment is impossible in a real world in which distributive injustice is prevalent. Yet, it undeniably captures something of the worry that many people have when confronted by the facts of distributive and retributive justice and, if nothing else, it should evoke in all citizens what Duff (2003, p. 259) calls “a properly humble and cautious spirit which recognizes how far from clean our collective hands and consciences are” with respect to penal justice.
Not all the poor suffer from the same injustices, not all of them commit crimes, and not all of those who commit crimes do so in similar circumstances (for a nuanced discussion of a “case-by-case” approach to social injustice in relation to the criminal law, see Green 2011, pp. 364–373). Nevertheless, the poor and disadvantaged are more likely to be victimized by crime, they are more likely to engage in criminal activity, and they appear disproportionately among those arrested and convicted (Green 2011, pp. 354–355; Western 2006). If one were to visit any prison throughout much of the world, one would be confronted with populations predominantly made up of young men from poor and disadvantaged backgrounds (in the USA, young black men from the same) (Wacquant 2009). At the same time across much of the developed world, the inequalities between the richest and the poorest in societies are growing. These facts compel attention not just in themselves, but because in punishing the poor, “we run the risk of compounding the sins of socio-economic injustice with those of retributive injustice” (Green 2011, p. 376).
The purpose of the arguments above is to show that confronting this possible double injustice from within the existing structures of the criminal law is deeply problematic. Some disadvantaged offenders will suffer from “abnormality of mind” (or similar) consequent upon their disadvantage, but this will be a small minority and, even among those, difficult to establish in court. Few, if any, will be able to claim a justification such as necessity. Ideal theories of punishment may not apply to the world we confront, but absent some other form of social organization, the necessity to punish will persist.
Perhaps the route out of these difficulties is to look beyond the resources of the criminal law and of philosophies of punishment and to political philosophy more generally. Much contemporary discussion of justice revolves around the question of how we might distinguish between those things – actions, omissions, character features, and so on – for which the agent is responsible and on the basis of which he might legitimately claim the benefits or be made to bear the burdens and those things that are merely chance or circumstance – things that, so to speak, simply happen to her – on the basis of which she may deserve assistance or compensation. Of course, while in many cases, poverty and injustice simply happen to people, the decision to commit an offense may fall into the category of choice rather than chance. Nevertheless, asking “when is it fair to make people bear the burdens or enjoy the benefits of their conduct?” may open up avenues of enquiry that might inform the criminal law and, if not that, at least our attitudes to those who fall liable to it (for an initial development of such a strategy, see Matravers 2007: Chap. 3; Scanlon 1998: Chap. 6). That said, given the extent of disagreement among political philosophers as to the answers to these questions, criminal law issues such as those discussed above remain both alive and worthy of attention.
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