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Thursday, March 29, 2012

What Aspects of Punishment Must Be Justified?

In my last post, I argued that we cannot accurately measure punishment severity if we only consider those aspects of punishment that are purposely imposed. At a minimum, we must also consider the punishment burdens we knowingly impose: if we know that punishment will largely deprive an offender of access to friends, family, sex, the Internet, and so on, then we need to take these knowing deprivations into account at sentencing to know how much punishment we are imposing.

More broadly, whenever we sentence, we are imposing substantial burdens, and we want these burdens to be morally justified. To be confident that a sentence is justified, we need to know how much harm the sentence is likely to cause. To make that determination, we need to consider harms that are not only purposeful or known but also those that are foreseeable.

What I call the justification-symmetry principle (p.14) provides a test of whether some punishment-related conduct requires justification. The principle says that if you or I must have a justification for causing or risking some harm, then so must any person who risks or causes the same kind of harm in the name of punishment. A complete justification of punishment will tell us why, by virtue of being just punishment, some ordinarily impermissible behavior is made permissible.

Just as an employer should have some justification for sending a reluctant employee on an overseas assignment that will separate him from loved ones, the state needs a justification for separating offenders from their family. Similarly, a landlord who voluntarily accepts dangerous tenants that raise the risk of sexual assault on other tenants should have some justification for doing so, just as the state should have a justification when it confines offenders in a manner that increases the risks that they will be sexually assaulted.

None of this means that the state cannot justify the varied harms of incarceration (the employer and the landlord may have good justifications, too). It just means that all of the purposeful, known, and foreseeable conditions of prison are relevant to the justification. So, if you are a retributivist who purports to justify sentences of incarceration, you must take all of these harms into account. Ditto for consequentialists with the same aims.

A challenge, though, for punishment theorists of all stripes is that foreseeable burdens vary from offender to offender and depend on the facility to which an offender is assigned. We cannot be confident that sentences will be just if sentencing judges don't know where offenders will serve time and refuse to hear evidence about offenders' unique sensitivities.

This post is adapted from the article, Unintentional Punishment, published in this month's issue of Legal Theory. The article has been made freely-available courtesy of Brooklyn Law School. 

Posted by Adam Kolber on March 29, 2012 at 10:40 AM | Permalink


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Adam, this is a really interesting project, and post. Thanks for sharing. For what it's worth: I remember working, a long time ago, when I was in practice, on a downward-departure argument (this was back before the Big Changes in the Guidelines' status) that the sentencing judge should consider, and depart downward because of, the fact that a particular defendant (my client) would almost certainly suffer more physical pain, as a result of his incarceration, than would the "heartland" defendant. The project made me think about the question -- which I never pursued -- about whether there might be better ways of measuring punishment's severity than counting months. I need to read your article!

Posted by: Rick Garnett | Mar 29, 2012 2:02:51 PM

I understand the seductive allure of the justification symmetry principle upon which you rely but it strikes me as mostly if not utterly inapt. There are so many things that some governments can legitimately do that individuals cannot. For example, at least when they are liberal democracies with a plausible theory of political obligation that would attach (and maybe that's what you reject b/c perhaps at bottom you're a philosophical anarchist), polities can set taxes and take your money, even waste it on stuff you and i would agree is stupid. No other private person has that right to take your money and spend it on stuff that's stupid, let alone better uses of money than you would use it for.

Punishment by the state (in a legitimate polity) may have the same exceptional status that raising taxes and spending the fisc do. The government might be justified in doing things that we cannot do on our own. No big whup, once you have a plausible theory of political obligation.

The other thing I think you're quite slippery on in this post and in the pieces where this argument appears has to do with risk and whether it's expected actuarially or in a particular instance. Ken Simons' piece on statistical knowledge is very relevant to the moral analysis of gov't actors. Anyway, there's a bunch of things Adam and I do agree on (hence the "islands of agreement" discussion in the Bentham on Stilts piece I wrote with Chad Flanders), but if readers of this post are charmed by Adam's arguments, and are nonetheless curious to hear the arguments on the opposing side, they should consult the following articles:

Simons: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1673266


Markel and Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, http://ssrn.com/abstract=1587886

David Gray, Punishment as Suffering, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1573600&rec=1&srcabs=1587886

Markel, Flanders and Gray, Beyond Experience: Getting Retributive Justice Right, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1739946

Finally, my most recent efforts on retribution and democracy might also dispel the symmetry claims Adam relies on. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930443
That's not to say there aren't some prior conceptions of retributive justice that might lead Adam to his concerns about retributive justice, but I think the best accounts, ones that focus on the political dimensions of punishment, are able to side-step these issues or address them head on and convincingly.

Ok, I'll stop here...I'm under the impression that Adam plans to write something that responds to the arguments made by Flanders, Gray, Simons, and myself, so I'll hold off until that later piece emerges.

Posted by: Dan Markel | Mar 29, 2012 2:16:15 PM

Rick: Many thanks! The case you worked on sounds very interesting. And as you note, courts have even more freedom to consider these issues now. There have also been some changes to the USSG themselves that increase flexibility (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1488444 at pages 638-39, esp. nn.189&190). And I certainly agree with your intuition that we cannot appropriately measure prison sentences solely in terms of duration.

Dan: The justification-symmetry principle ("JSP") is about the kind of harms that require justification. It is indeed possible to justify some harms using a more general justification of the power of the state with respect to individuals. Punishment theorists then need to clearly spell out which harms are justified by a general theory of the state and which by a punishment theory. I spend a good part of the paper describing some of the pitfalls of this "splitting strategy." So the JSP is not inapt, as you suggest; it simply doesn't neatly fit the way you'd like to divide up the terrain.

But let me make one brief suggestion here: Let's take an example of a harm that we might plausibly think is not a purposeful burden of punishment but is nevertheless foreseen. The fact that we prevent most prisoners from having sex with other people might be an example. Are we to believe that a general theory of the state justifies our foreseen limitations on the sexual freedom of prisoners? After all, if we can limit prisoners' freedom in this way but not the freedom of other people, it starts to seem like the difference has a lot to do with offenders' criminal behavior. Similarly, we can knowingly cause offenders the intense, prolonged distress associated with confinement but not other people. I think it's fair to expect a theory of punishment to address the difference.

I'm not sure what you mean about actuarial risks versus risks in this particular instance but maybe this will help: In an ideal world where we set aside cost and administrability concerns, we would gather the best information we can about a particular individual being sentenced and the particular risks associated with that offender. Furthermore, because incarceration extends over time, we may also have obligations to monitor the course of sentences as well. In the real world where all information is hard to obtain, your mileage may vary.

Thanks for your comments!

Posted by: Adam Kolber | Mar 29, 2012 6:31:01 PM

Re: the JSP, a retributive punishment theory needs only justify what it views as retributive punishment that is itself justified. It's not the task of retributive theory to purport to justify the harms that incidentally but in the aggregate, foreseeably, befall some people at hands other than the state. Consider an analogy.

People get beat up once in a while when they're in the military. Let's say it's violence by one enlisted soldier against another. Random private violence. It's deeply regrettable but when you run a big complex institution, with millions of people it happens; so does domestic violence, gambling, drugs, etc. Now, a just state provides care and perhaps compensation for those victims of beatings; it would pursue and prosecute those who did the beating. If its own officials were somehow complicit or ratified ex post the beatings in particular situations, those officials in a just state would be fired and prosecuted for their own torts or crimes.
But the just state wouldn't be obligated to say that such forseeable beatings are part of what is justified by its justificatory theory of national defense that allows/legitimates its having an army. If there was a national draft or even a contractual agreement, the beaten soldier w/shouldn't be able to point to the private violence he experienced as a guaranteed basis for escaping the rest of his duties to the military.
Your account, by contrast, would suggest that *any* suffering a person experiences during his confinement (or military service), even if it's not proximately caused by the state, is a basis for an offset against punishment (or other duties to the state). This seems to miss the language and social meaning of state punishment, and state action more generally. And the actuarial vs particular distinction I referenced is best seen through Simons paper on statistical knowledge that I linked to earlier.

On your last point, I think, btw, that a liberal state may not "break" its prisoners and thus I agree that monitoring has to happen to ensure the present competence and care of an offender throughout its punishment, but that sets limits at the ceilings on an individualistic basis. Such a view wouldn't entail making individualized suffering adjustments as a goal. And that goal is unattractive and inconsistent with retributive values, as most attractively understood. Anyway, I've already said as much in Bentham on Stilts and Beyond Experience, so I don't want to rehash the arguments we've already made there, at least not here/now. Thanks, Adam.

Posted by: Dan Markel | Mar 29, 2012 11:30:44 PM


You wrote: "a retributive punishment theory needs only justify what it views as retributive punishment that is itself justified." I'm not sure what this means. But one of the arguments in the paper is that some justifications of punishment are too anemic to do what we legitimately expect them to do. So, a theory of punishment can be criticized for too narrowly describing what must be justified.

At the heart of what we are discussing is the question of which actions of the state require justification. I'm quite open to the view that all of the state's coercive actions require at least a general justification. Putting the deeper debate aside, your military example doesn't quite make the point you'd like it to: (1) It's not clear from your example that the soldier is there against his or her will, as is the case for most prisoners; and (2) Remember from "The Comparative Nature of Punishment" that we need to consider changes in pertinent baselines when assessing harms. It's not clear from your example whether the soldier's baseline risk of injury is any higher in the military than it was if the soldier were just at a rowdy bar or walking home late at night.

So let's assume that the soldier was drafted to serve against his or her will and that the solider's risk of physical harm goes up as a result. Does the state need to justify drafting soldiers? Absolutely. And while the justification should principally to the harms of serious injuries like death, I see no reason why the state would exclude less serious but still foreseen injuries to conscripted soldiers in its overall justifcation where those injuries are higher than they would have been had the soldier not been conscripted.

You say that the harm is not at the hands of the state. It is true that the principal cause of the harm in your example is likely to be the other soldier. But if the state throws one soldier into a lion's den, the state has some responsibility for what happens. The same is true to a lesser extent when the state throws people against their will into confined situations with dangerous people, as it does in prisons. Reliance on proximate causation won't help you for reasons I briefly discuss in the paper.

Lastly, when I speak of taking some consideration into account at sentencing, I don't necessarily mean to use that consideration as "a basis for an offset against punishment" as your comment suggests. The matter is more complicated than that and depends, in particular, on whether we are discussing retributivist or consequentialist views.

Thanks for your comments!

Posted by: Adam Kolber | Mar 30, 2012 6:55:37 AM

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