Abstract
An influential strain in the literature on state punishment analyzes the permissibility of punishment in exclusively deontological terms, whether in terms of an individual’s rights, the state’s obligation to vindicate the law, or both. I argue that we should reject a deontological theory of punishment because it cannot explain what is unjust about mass incarceration, although mass incarceration is widely considered—including by proponents of deontological theories—to be unjust. The failure of deontological theories suggests a minimum criterion of adequacy for a theory of punishment: it must take aggregation sufficiently seriously that it returns plausible results when scaled up from individual cases to large public institutions. In this vein, I briefly sketch a prioritarian metric for evaluating the use of custodial sanctions as a means of creating and allocating social advantage.
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Notes
Steve Redburn, Jeremy Travis and Bruce Western (eds.) The Growth of Incarceration in the United States: Exploring Causes and Consequences (Washington: The National Academies Press, 2014), p. 13; see also Roy Walmsley (ed.) World Prison Population List 10th edn. (London: International Centre for Prison Studies, 2013), available at: http://images.derstandard.at/2013/11/21/prison-population.pdf.
For population figures, see United States and World Population Clock, available at http://www.census.gov/popclock/; for incarceration figures, see Walmsley, supra note 2.
There is by now an extensive literature across sociology, criminology, economics, history, politics and law on mass incarceration. For a brief overview of the literature on the political context in which mass incarceration developed in the United States, see Redburn, Travis, and Western, supra note 2, Chapter 4.
So-called “hybrid” theories of punishment are not deontological theories in my sense, since these theories make satisfaction of deontological side-constraints into merely a necessary, rather than sufficient, condition for the permissibility of punishment.
Mitchell N. Berman, “Two Kinds of Retributivism” in R. A. Duff and Stuart P. Green (eds.), Philosophical Foundations of the Criminal Law (Oxford: Oxford University Press, 2011), p. 452.
Christopher H. Wellman, “The Rights Forfeiture Theory of Punishment,” 122 Ethics 371 (2012).
Ibid., p. 375 n. 7. One might speculate that Wellman’s view is only meant to explain when punishment is permissible in individual contexts, rather than the permissibility of an overall institution of punishment. However, Wellman presents his account as a competitor to traditional utilitarian, retributivist, moral education, expressivist, restitutive and social safety valve theories of punishment, which clearly are attempts to justify the overall institution of punishment. Ibid., pp. 371–372. More tellingly, were rights forfeiture simply a side-constraint on individual decisions to punish someone, with the overall social institution of punishment justified by other, more consequential considerations, Wellman’s theory collapses into weak rights forfeiture. This is, after all, tantamount to claiming that guilt is a necessary constraint on punishment, but that punishment is in general only permissible when it furthers some valuable social aim. But Wellman expressly denies this claim in his defense of strong rights forfeiture theory. Ibid., p. 375. All that being said, there is an interesting question as to whether strong rights forfeiture theory is consistent with the approach to punishment he defended in an earlier paper, in which he seemed to insist that state punishment must further a valuable social aim (inter alia, deterring crime) if it is to be justified. See Christopher H. Wellman, “Rights and State Punishment,” Journal of Philosophy 106(8) (2009): pp. 419–439, especially 428–430.
Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge: Harvard University Press, 2009), p. 301.
Ibid., pp. 306–307.
Ibid., pp. 320–321. To be fair, Ripstein attempts to constrain the maximalist tendencies of his Kantian view by insisting that he is not taking “any specific position about what public resources should be devoted to crime detection, or where those resources should be focused.” However, it is hard to see what motivates the distinction between investigation (entirely discretionary) and prosecution (entirely mandatory): if it is such an affront to the law to allow even a single crime to go unpunished, why is it not equally an affront if crime that could easily be detected and punished were allowed to go undetected and unpunished? Perversely, this suggests that the state could decide to underfund policing and crime detection precisely so that it could avoid acquiring the rigorous Kantian duty to punish criminals once detected. Ibid., p. 321.
See Alan Brudner, Punishment and Freedom (Oxford: Oxford University Press, 2008), p. 38.
Ibid., p. 42.
Ibid., pp. 37–41. Unlike Wellman, Brudner views punishment as a rights violation rather than as a rights forfeiture.
Ibid., p. 46.
R. A. Duff, “Retrieving Retributivism”, in Mark White (ed.), Retributivism: Essays on Theory and Policy (Oxford: Oxford University Press, 2011).
Ibid., p. 3. Or, as Nozick once put the point, the consequential goods achieved by punishing wrongdoers—reform, deterrence or incapacitation, say—are merely an “especially desirable and valuable bonus” and are not “part of a necessary condition for justly imposed punishment.” Robert Nozick, Philosophical Explanations (Cambridge: Belknap Press, 1981), p. 374.
This sentence is a paraphrase of supra note 16, pp. 16–18.
Supra note 16, p. 14.
Doug Husak has objected that we should not try to distinguish between equally guilty individuals, and hence that it is a strength rather than a weakness of deontological theories that they support equal punishment for all the guilty. But, if that is true, then punishment maximalism follows directly. This objection also depends on construing fairness to require equal ex post punishments rather than equal ex ante chances, a point I have investigated elsewhere. See Vincent Chiao, “Ex Ante Fairness in Criminal Law and Procedure,” New Criminal Law Review 15(2) (2012): pp. 277–332.
What is a plausible value of n? It is worth bearing mind that even in the United States today the incarceration rate is less than 1 %, and that in most other Anglophone countries the rate is closer to 0.01 %. It is hard to imagine what a society that incarcerated, say, 10 or 20 or 30 % of its population would look like, and it may well be the case that under social conditions where one would find such a rate—perhaps conditions of civil war or insurrection—normal theories of justice would simply fail to apply.
To illustrate, consider the following simplified example. Suppose your theory of punishment says that the single input factor that is relevant to determining whether punishment is permissible is guilt: if someone is guilty of a crime, then it is permissible to punish him. Suppose, further, that in society S, there is only one crime, C, and people who are convicted of committing C invariably serve one year in prison. In this case, the value of n max is straightforwardly estimated: it is simply the number of people who commit C in a given year. After all, if the state were to investigate, prosecute and convict every single person who commits C, then the number of instances in which C is committed would determine the actual incarceration rate, and given that time served for C is one year, at any given time n max should correspond to the number of instances of C in the previous 364 days. Any higher rate of incarceration, and S would inevitably be incarcerating innocents. But because n max is a ceiling, any lower rate of incarceration of C-offenders would necessarily be permissible.
Supra note 7, p. 375 n. 7.
Sourcebook of Criminal Justice Statistics Online, Table 4.19.2007: Offenses known to police and percent cleared by arrest, available at: http://www.albany.edu/sourcebook/pdf/t4192007.pdf.
Sourcebook of Criminal Justice Statistics Online, Table 4.21.2007: Percent of offenders known to police who were cleared by arrest, available at: http://www.albany.edu/sourcebook/pdf/t4212007.pdf.
Sourcebook of Criminal Justice Statistics Online, Table 5.0002.2004: Felony convictions and sentences and rate per 100 arrests, available at: http://www.albany.edu/sourcebook/pdf/t500022004.pdf.
See David Kennedy, Deterrence and Crime Prevention: Reconsidering the Prospect of Sanction (London: Routledge, 2009), p. 45.
See Andrew Ashworth and Mike Redmayne, The Criminal Process 4th edn. (Oxford: Oxford University Press, 2010), pp. 156–157 (estimating that “no more than 2 percent” of the eight most frequently committed offenses in the United Kingdom result in a conviction). For historical evidence, see Peter King, Crime, Justice, and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2005), pp. 11–12, 132–134 (reporting estimates from the late 18th and early 19th centuries that only 1–10 % of property crimes were prosecuted).
The unstated empirical hypothesis is that increasing criminalization causes increasing incarceration. There is reason to doubt this hypothesis. After all, the set of crimes for which people are actually sent to prison has remained fairly stable even as incarceration rates exploded. The growth in incarceration has largely been driven by increased numbers of prosecutions for a relatively small number of crimes. It is not the case that criminalizing X automatically results in any, much less many, prosecutions for X. My thanks to Elizabeth Brown for drawing my attention to this fact.
See, e.g., Michelle Alexander, The New Jim Crow (New York: The New Press, 2010).
In 2012, drug offenders made up approximately 16 % of the state prison population. E. Ann Carson, Prisoners in 2013 (Washington: Bureau of Justice Statistics, 2013), p. 15, tbl. 13, available at: http://www.bjs.gov/content/pub/pdf/p13.pdf [hereinafter Carson, Prisoners]; see also John F. Pfaff, “The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options,” Harvard Journal on Legislation (forthcoming 2015) [hereinafter Pfaff, War]; James Forman, Jr., “Racial Critiques of Mass Incarceration: Beyond the New Jim Crow,” 87 N.Y.U. Law Review (2012): pp. 47–48.
Carson, Prisoners, supra note 31, p. 15, tbl. 13. The Marshall Project, a news organization focused on criminal justice issues in the United States, has put the Bureau of Justice Statistics online in the form of an interactive set of sliders, which the reader can manipulate to see how many violent offenders would have to be released in order to cut America’s incarceration rate by 50 %. Note that a 50 % reduction would still leave the United States as the most punitive developed country on the planet. Available at: https://www.themarshallproject.org/2015/03/04/how-to-cut-the-prison-population-by-50-percent.
Pfaff, War, supra note 31, tbl. 1A.
See John F. Pfaff, “Escaping from the Standard Story,” Federal Sentencing Report 26 (2014): pp. 265–266.
John F. Pfaff, “The Micro and Macro Causes of Prison Growth,” Georgia State University Law Review 28, p. 1270; John F. Pfaff, “The Causes of Growth in Prison Admissions and Populations,” Working Paper No. 1884671 (2011), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1884674 [hereinafter Pfaff, Causes of Growth], pp. 22–24. Even Blumstein and Beck acknowledge that drug offenses do not explain the bulk of the explosion in incarceration rates. Alfred Blumstein and Allen J. Beck, “Reentry as a Transient State between Liberty and Recommitment” in Jeremy Travis and Christy Visher (eds.), Prisoner Reentry and Crime in America (Cambridge: Cambridge University Press, 2005), pp. 50, 78 [hereinafter Blumstein and Beck, Transient]. But see Alfred Blumstein and Allen J. Beck, “Population Growth in U.S. Prisons, 1980–1996,” in Michael Tonry and Joan Petersila (eds.), Prisons (Chicago: University of Chicago Press, 1999), pp. 17, 21 [hereinafter Blumstein and Beck, Population Growth].
See, e.g., James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (Oxford: Oxford University Press, 2005), especially Chapter 2.
Bureau of Justice Statistics report that, for prisoners released in 2012, the median time served for violent crimes was 28 months, 12 months for property crimes and 13 months for drug offenses. See Carson, Prisoners, supra note 31, p. 18 tbl. 17.
John F. Pfaff, “The Myths and Realities of Correctional Severity,” 13 American Law and Economics Review 491 (2011): pp. 499–504 [hereinafter Pfaff, Myths]. The states in question are California, Colorado, Illinois, Kentucky, Michigan, Minnesota, Nebraska, New Jersey, South Dakota, Virginia and Washington.
Pfaff, Causes of Growth, supra note 35, pp. 30–32. As Pfaff puts it, “sanctioning severity does not appear to have changed much at all between 1977 and the early 2000 s; to the extent that there has been any change since then, it has been in the direction of leniency.” Ibid., p. 4. For contrary views, see Blumstein and Beck, Population Growth, supra note 35, and Blumstein and Beck, Transient, supra note 35. Pfaff’s findings are based on two datasets, not utilized by other studies, that allow Pfaff to disaggregate prison admissions per arrest into its component parts, namely felony filings per arrest, convictions per filing and prison admissions per conviction. Pfaff, Causes of Growth, supra note 35, pp. 5–7.
Franklin Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes in California (Oxford: Oxford University Press, 2001), pp. 20–21. As Zimring has noted elsewhere, the federal “three strikes” law was applied 35 times in the four years after its enactment, whereas the California statute—enacted the same year as the federal statute—was applied over 40,000 times. Indeed, the California statute “has resulted in nine times as many prison terms as all of the 26 other three strikes laws in the United States combined.” Franklin Zimring, “Imprisonment and the New Politics of Criminal Punishment,” Punishment & Society 3 (2001): p. 163.
Pfaff, Myths, supra note 38, p. 504.
Pfaff, Causes of Growth, supra note 35, pp. 7–21.
Patrick Langan, “America’s Soaring Prison Population,” Science 251 (1991): p. 1568.
See King, supra note 28, p. 12.
Supra note 7, pp. 386–387.
See Emmanuel Melissaris, “Toward a Political Theory of the Criminal Law: A Critical Rawlsian Account,” New Criminal Law Review 15 (2012): pp. 146–148. Metaphysical conceptions of proportionality remain current in the literature; see e.g., Greg Roebuck and David Wood, “A Retributive Argument against Punishment,” Criminal Law and Philosophy 5 (2011): pp. 73–86.
I owe this example (and this objection) to Kit Wellman.
Supra note 7, p. 375 n. 7.
For a contemporary exemplar of such a view, see Mitchell N. Berman, “Punishment and Justification,” Ethics 118 (2008): pp. 258–290.
As it happens, there is a legal device that operationalizes roughly the kind of promise Wellman envisions, which is a prosecutor’s offer of immunity in exchange for cooperation with an ongoing investigation. It is unlikely that the reason that the United States incarcerates too many people is because millions of these promises have been reneged on.
This, I suspect, is what gives Wellman’s kidney example its force: taken individually, each of the kidney thieves morally deserves punishment. Yet, does that necessarily make it permissible to give it to them? All of them?
See Vincent Chiao, “Two Conceptions of the Criminal Law,” in Chad Flanders and Zach Hoskins (eds.), The New Philosophy of Criminal Law (forthcoming).
The thought that punishment must be deserved, and that desert (at least in this context) must be individualistic, has deep roots. For an enlightening discussion, see Samuel Scheffler, “Justice and Desert in Liberal Theory,” California Law Review 88 (2000): pp. 983–987.
Pettit and Braithwaite’s republican theory of punishment, for instance, is expressly consequentialist but not at all utilitarian. See John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (Oxford: Oxford University Press, 1987).
For just one example, a theory of punishment that takes seriously the task of determining when the use of custodial sanctions is appropriate, and when it has become excessive, must be sensitive to what we know about how people respond to the possibility of sanction. See, for instance, William Spelman, “What Recent Studies Do (and Don’t) Tell Us About Imprisonment and Crime”, Crime & Justice 27 (2000): pp. 419–494; Redburn, Travis, and Western, supra note 2, Chapter 5. Naturally, what we conclude from an estimate of the elasticity of crime to punishment depends in part upon broader commitments in the theory of justice—how we assess the social value of reducing crime as against the costs of punishment, as well as how we assess the resulting distribution of social advantage across the population. The need for an overarching normative theory is apparent when considering that punishment is not the only way to reduce criminal offending; other means, such as increasing the male high school graduation rate, also appear to reduce offending, though at different rates, and with a different distribution of social costs and benefits. See Lance Lochner and Enrico Moretti, “The Effect of Education on Crime: Evidence from Prison Inmates, Arrests and Self-Reports”, American Economics Review 94 (2004): pp. 155–189.
Franklin Zimring, Gordon Hawkins, and Sam Kamin archly noted that popular support for the law “could be the opposite of an instrumental justification, in which people believe that the legislation is appropriate only because it is effective. Instead, it is often the case that belief in the effectiveness of a penal statute is rooted in the citizens’ conviction that the law is appropriate. Since the penal measures feel right, they must be working well.” Zimring, Hawkins, and Kamin, supra note 40, p. 221.
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Chiao, V. Mass Incarceration and the Theory of Punishment. Criminal Law, Philosophy 11, 431–452 (2017). https://doi.org/10.1007/s11572-015-9378-x
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DOI: https://doi.org/10.1007/s11572-015-9378-x