Vol. 16 No. 6 (June, 2006) pp.510-516
LAW WITHOUT JUSTICE: WHY CRIMINAL LAW DOESN’T GIVE PEOPLE WHAT THEY DESERVE, by Paul H. Robinson and Michael T. Cahill. New York: Oxford University Press, 2006. 336pp. Hardback $35.00/£19.99. ISBN: 0-19-516015-0.
Reviewed by Samuel T. Morison, Office of the Pardon Attorney, U.S. Department of Justice. E-mail: stm5 [at] georgetown.edu.
The debate concerning the moral justification for imposition of criminal liability and punishment seems to be perennially mired in the philosophical standoff between the deontological and consequentialist camps, with partisans on each side pointing out the relative theoretical shortcomings of the other. Those with a deontological sensibility are thus inclined to argue (quite rightly it seems to me) that a purely utilitarian conception of crime and punishment might easily be used to rationalize infliction of punishment, either too much or too little, without a due regard for moral fault of the offender, however difficult that metric is to determine as a practical matter. The consequentialists, in their turn, counter (also correctly I think) that the quixotic attempt to preserve of a kind of cosmic balance between desert and culpability, by itself, is hardly a sufficient reason to tolerate the substantial social costs incurred by infliction of state-sponsored punishment, even on those who arguably deserve to be punished in some fashion. As Michael Corrado (2001) remarks, borrowing a metaphor from Wittgenstein, the debate has come to resemble the proverbial “fly trapped in the fly-bottle. We have found our way in, and cannot find our way out.”
If I have read them correctly, Paul Robinson and Michael Cahill’s new book, LAW WITHOUT JUSTICE, constitutes the latest attempt to break out of this particular conceptual muddle, though not, I suspect, in a way that will ultimately prove satisfactory to anyone with an intellectual stake in the debate. For the authors’ ambition is nothing less than to reconcile the deontological and consequentialist viewpoints, or at least to render the disagreement between them irrelevant, by advancing the empirical claim that the criminal justice system can most effectively facilitate the goal of inducing voluntary compliance with law, the purported objective of utilitarian-based theories, only to the extent that both doctrine and practice accurately reflect popularly held intuitions about the scope and limits of deserved punishment. By adopting this strategy, they hope to “obviate, as a practical matter, the deeper philosophical debate about whether these other commitments should trump desert. . . . Where it is possible to achieve the competing goal without deviating from desert . . . the unfortunate tradeoff can be avoided altogether” (p.18).
Given the intractable nature of the debate, this is a tall order, to put it mildly. In an effort to make good on the argument, the authors begin, perhaps inevitably in discussions of this sort, with the assumption that the legal system generally, and the machinery of the criminal justice system in particular, is driven by a single overarching goal or [*511] purpose, namely to see to it so far as humanly possible that “people get what they deserve,” no more and no less, in response to their actions. The pursuit of a backward-looking conception of justice in which desert is given pride of place in the assignment of liability and punishment, they contend, is “a fundamental reason (and perhaps the reason) that we have a legal system at all” (p.3), rather than any fear of the untoward social consequences that might ensue if we failed to consistently enforce established legal conventions.
This is certainly not meant to suggest that the standard utilitarian justifications of punishment — minimizing the incidence of criminal behavior through deterrence, incapacitation and rehabilitation — are not also worthy social goals. But the authors insist that such considerations, by themselves, do not constitute “freestanding justifications for having a criminal-justice system in the first place” (p.16). This proposition is put forward, moreover, as an empirical observation about the existing state of the law, rather than an inherently contestable normative assertion about the shape it ought to take. “[T]he overall contours of criminal-law doctrine,” they write, “make clear that the commonly shared intuition [about desert] is essentially accurate as a descriptive matter. That is, criminal law does typically try to do ‘justice,’ just as people want it to do” (pp.16-17).
Robinson and Cahill further contend that it is this unique feature of criminal law, namely “its ability to bring moral condemnation to bear” by stigmatizing the conduct of blameworthy offenders, that chiefly serves to distinguish the criminal justice enterprise from the imposition of “tort liability (or some other civil or private-law mechanism) to redress wrongful behavior” (pp.113, 16). From this perspective, doctrinal departures from an individualized conception of the desert principle — such as the imposition of strict liability for statutory rape despite the actual reasonableness of a particular defendant’s mistaken belief that the victim was above the age of majority — are problematic in terms of securing voluntary compliance, because they undermine “the very moral credibility that gives [criminal law] the normative force to influence people’s values and behavior” (p.113).
Hence, they argue that preserving “the criminal law’s moral credibility” by minimizing such deviations is “essential to effective crime control,” because the system relies crucially on the public’s perception that the law accurately reflects widely shared views of “appropriate prudential and moral behavior” (p.16). Conversely, the “greater the criminal-justice system’s deviation from [this conception of] desert, the more it undermines its own moral credibility with the community it governs and the less influence it will have in shaping community norms and in gaining cooperation and acquiescence in it operations” (p.128).
As the authors are keenly aware, of course, the criminal law is also rife with doctrines imposing relatively bright-line rules that deliberately depart in one way or another from a purely desert-based approach. The bulk of the book is thus [*512] devoted to a wide-ranging survey of such “deviation rules,” and explores the extent to which they should be revised to more closely track deep-seated beliefs about deserved punishment. Given the asserted normative priority of the desert principle, they contend that the “central questions that should drive the debate . . . are empirical and not normative,” namely the extent to which the “system would come closer to maximizing deserved punishment” with or without the rules in question (p.84). And, as one might expect from a couple of law professors, the abstract discussion is effectively punctuated with the examination of actual cases that usefully illustrate how the deviation rules operate in practice.
The deviation rules fall into two broad categories. Chapters 2-4 examine various substantive and procedural rules that accept, in principle, the normative priority of desert, but that “depart from the abstract demands of justice” for pragmatic reasons having to do with the real world implementation of the system (p.8). This category includes “the limitation or rejection of various exculpatory defenses or mitigation rules,” such as a reasonable mistake of fact or law, which is motivated by a concern that guilty defendants might otherwise manipulate the system to achieve unjust acquittals; the use of statutes of limitation and strict liability, which respond to concerns about human error and the inherent unreliability of evidence; and practices such as plea bargaining and witness immunity, “which are predicated on the claim that, given constraints on available time, resources, and fact-seeking capacities, the system can maximize justice overall by making compromises in individual cases” (p.26).
By contrast, Chapters 5-8 examine various rules that deliberately generate departures from the pursuit of desert and thus “reflect a decision, whether conscious or inadvertent, to sacrifice the interests of justice to advance some other goal” (p.8). This category includes the criminal law’s insistence on “clear, fixed, ex ante rules defining the conduct it prohibits,” which may be both over and under-inclusive, imposing underserved liability when “a blameless offender is punished” in order to vindicate “the clarity of the prohibition,” but precluding liability for certain immoral acts that “do not fall within any clearly established . . . prohibition;” the use of sentencing rules that increase penalties for repeat offenders, which may inflict “more liability than is deserved;” procedural devices, such as the exclusionary rule, that seek to preserve the fairness of the system “by imposing restraints on police and prosecutors to curb government misconduct,” thereby frustrating the imposition of deserved punishment; and the use of certain rules that “promote interests completely external to the criminal-justice system,” such as diplomatic immunity and the criminalization of regulatory violations (p.88).
Finally, Chapters 9-10 reiterate the authors’ agenda for reform, which aims “to eliminate, or at least reduce, the current system’s deviations from the desert principle.” The reforms likewise fall into two categories. The first set of [*513] reforms would involve changes internal to the criminal justice system, such as relaxing the artificiality of bright-line deviation rules by “shifting the burden of persuasion to the defendant” to prove facts that mitigate moral fault, and a more nuanced verdict system, “which could effectively condemn a defendant’s conduct while exculpating” him in appropriate circumstances, thereby preserving the law’s moral integrity without imposing undeserved punishment (p.9).
The second set of reforms would involve changes external to the criminal justice system, such as the use of civil remedies as a “means of dealing with official violations of rights [rather] than the current method of excluding reliable evidence in criminal proceedings,” the creation of “a distinct civil system . . . to impose liability for minor administrative violations and corporate wrongdoing,” and openly embracing a “system of post-criminal term civil commitment” for dangerous offenders (p.9).
Though many of these proposed reforms strike me as both sensible and humane, particularly if they can be implemented without a concomitant loss in deterrence, the theoretical basis of the argument remains unconvincing for several reasons. To begin with, Robinson and Cahill readily acknowledge that “various rights and protections . . . enshrined in the Constitution” are specifically designed “to prevent abusive or improper law enforcement or prosecution,” even though they also plainly frustrate the goal of giving the guilty the punishment they arguably deserve, which, they say, sets up a “tradeoff between individual liberty and substantively accurate results” (p.138).
But surely the constitutional concern for individual liberty is not merely a competing interest, on a par with, much less subordinate to, the desert principle. To the contrary, I would argue that the centrality to our political culture of such constitutional norms completely undermines the notion that the desert principle enjoys normative priority in governing the exercise of state power, punishment being the paradigmatic manifestation thereof. According to this view, the practice of punishment is rationally justified, if at all, as a mechanism for securing the rule of law, which is to say, a cooperative social venture in which each citizen’s right to act freely for his or her own purposes is protected from illegitimate interference, consistent with the comparable freedom of everyone else. In order to be morally justified, of course, the state’s treatment of an offender must meet several additional constraints, including satisfying the requirements of proportionality and equality. However, the purpose in virtue for which we establish criminal laws in the first place is certainly not to ensure that offenders get exactly what they deserve, whatever that is, but to instantiate (however imperfectly) the ideal of individual liberty within the rule of law. If this is a correct characterization of the American constitutional tradition, the infliction of punishment is a means, not an end, and the imperative concern to maximize the desert principle thus seems misplaced.
Furthermore, as we have seen, Robinson’s and Cahill’s program for [*514] penal reform is heavily dependent upon on a positive psychological claim, namely that popular intuitions about desert have, at a minimum, a fairly determinate and readily accessible content, which, in turn, is the ground of the law’s legitimacy and thus ought to inform legislative code drafters. Hence, the authors maintain, apparently on the basis of opinion surveys, focus group research and the like, that “laypersons generally . . . assume that criminal liability and punishment should depend upon a person’s moral blameworthiness” (p.4, n.6), and, more strikingly, that “nearly all of the time, nearly all of us would be in rough agreement about what it means to give a particular defendant what she deserves” (p.15). More specifically, they assert, inter alia, that “shared intuitions” support a relaxation of the insanity defense where the defendant could not reasonably control his behavior (p.41), that “most people share the view” that the provocation defense should be based on a subjective evaluation of what was reasonable to expect from the defendant under the circumstances (p.48), and that it “clearly conflicts with lay perceptions of justice” to punish attempts as harshly as completed crimes (p.134).
These claims are difficult to adjudicate, since the validity of this type of research depends upon a host of issues that are not specified in the text. As always, the devil is in the details. In any event, while Robinson and Cahill suggest that their approach has a certain democratic pedigree (p.21), this completely elides the fact that, constitutional rights aside, all of the substantive doctrines to which they object have been almost uniformly adopted in the large majority of American jurisdictions, and there is no good reason to believe that legislators are systematically mistaken about public sentiments concerning these issues. Indeed, the primary cause of the democratic tendency toward over-criminalization, which Philip Pettit (2002) has aptly termed the “outrage dynamic,” is precisely that legislators are arguably too responsive to public demands regarding penal policy, which need not necessarily “serve any instrumental purpose, so long as it effectively decries the deed and denounces the doer.”
For these reasons, it is difficult to credit the suggestion that such legislative judgments somehow fail to reflect accurately the average layman’s view, however partial or exaggerated, about the demands of retributive justice. Robinson and Cahill assert, for example, that recidivist statutes and sentencing guidelines that provide increased penalties for repeat offenders constitute “a system of cloaked preventative detention” that makes no pretense of “imposing just punishment for specified crimes” (pp.11, 4), but this is simply not true. In fact, I am not aware of any contemporary sentencing statute that stipulates a single, comprehensive rationale to justify its provisions. The Federal Sentencing Guidelines, which are typical in this regard, provide that, in addition to serving the goals of deterrence and rehabilitation, “[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment.” Likewise, the California three strikes law, which the authors [*515] admit enjoys widespread public support (p.4), provides that “[i]t is the intent of the Legislature in enacting [the statute] to ensure longer prison sentences and greater punishment” for repeat felony offenders, thereby incorporating both utilitarian and retributive justifications.
The debate would thus seem to turn, as the authors evidently concede (p.135), on the specific range of punishment to which repeat offenders are exposed. That is also a legitimate policy debate, to be sure, and while I am sympathetic to the claim that strict mandatory sentences often generate counterproductive and unjust results, that is quite different from saying that popular notions of desert fail to sanction the use of sharply increased penalties for repeat offenders, even for a series of relatively minor, non-violent property or drug crimes.
Finally, as Kyron Huigens (2000) has acutely observed (in reference to an earlier version of the same thesis co-authored by Robinson), the argumentative strategy is defective in any event, because it “implies that the criminal law operates under a pretense that its claims about fault are meaningful, with a wink and a nod to consequentialist theorists and a legal elite who know better. We do not impose criminal liability up to the logical limits of the consequentialist rationale because to do so would risk a popular backlash, but the criminal law, properly speaking, is agnostic about the moral intuitions that would drive this popular backlash.” This objection suggests that the integrity of the law is not dependent upon whether it happens to coincide with widespread intuitions about desert, as Robinson and Cahill would have it, but rather on the extent to which it is consistent with principled moral reasoning about the legitimate scope and limits of liability and punishment. Although it is perhaps a truism that some degree of public acquiescence is a necessary condition for the stability of any legal system, if popular attitudes conflict with our considered moral judgments and political ideals, the pedagogical responsibility of scholars and reform advocates is to attempt to persuade people to change their minds.
In this regard, moreover, an opinion poll is hardly a straightforward expression of the sensus communis, the impartial standpoint from which the rational evaluation of social norms is possible. After all, until fairly recently, a majority of the American electorate would have approved of the legal enforcement of a parochial conception of sexual morality. Nevertheless, in one of its rare forays into substantive criminal law, the Supreme Court has largely resisted this impulse on equal protection and substantive due process grounds, most recently in LAWRENCE v. TEXAS (2003), which, as everyone knows, struck down a criminal statute targeting homosexual sodomy. To the same effect, Huigens quotes H.L.A. Hart’s (1968) riposte to the idea that public opinion subtends the criminal law: “we do not dissociate ourselves from the principle that it is wrong to punish the hopelessly insane or those who act unintentionally, etc., by treating it as something merely embodied in popular mores to which concessions must be made sometimes. We condemn legal [*516] systems where they disregard this principle; whereas we try to educate people out of their preference for savage penalties even if we might in extreme cases of threatened disorder concede them.”
Indeed, Robinson and Cahill themselves remark, tellingly, that “[l]egal reform can be effective only as part of a larger agenda of education and societal awareness, including the public expression of disapproval by institutions other than the criminal-justice system. Criminal-law reform cannot be a substitute for public discussion, educational campaigns, and institutional programs” (pp.113-114). I quite agree, but then the effort to sidestep the normative debate over the justification of the criminal law is largely beside the point, since we are invariably in the position of having to decide whether our moral intuitions are rationally justified, all things considered, and thus worthy of being embedded in the penal code.
Corrado, Michael L. 2001. “The Abolition of Punishment.” 35 SUFFOLK UNIVERSITY LAW REVIEW 257-276.
Hart, H.L.A. 1968. PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW. New York: Oxford University Press.
Huigens, Kyron. 2000. “The Dead End of Deterrence, and Beyond.” 41 WILLIAM & MARY LAW REVIEW 943-1036.
Pettit, Philip. 2002. “Is Criminal Justice Politically Feasible?” 5 BUFFALO CRIMINAL LAW REVIEW 427-450.
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
© Copyright 2006 by the author, Samuel T. Morison. The views expressed in this review are the personal opinions of the author and do not represent the official position of the U.S. Department of Justice.