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Published online by Cambridge University Press: 09 June 2015
Our reactions to actual crime-disbelief about the act committed, anger at the hurt caused, a desire to get even, and fear for ourselves and our children-arrive in an indecipherable rush of emotion. We perceive strong, intuitive, and sometimes oppositional reactions at once. So it is little wonder that no single traditional moral justification for punishment is satisfactory. Traditional theories, both retributive and utilitarian, are grounded in a priori truths that ignore the convergence of the theoretical, the practical and the emotional that gives rise to the need to punish. In their stead, we should embrace an advertently pragmatic theoretical approach, which recognize the primary need to protect ourselves against danger, but looks as well to providing reformation wherever possible. Such an approach does not ignore the traditional rationales. To eschew retribution entirely is to deny a deeply-rooted moral intuition and forego efforts to tame it. To jettison utility is to condemn the victim and community to perpetual fear; just to the extent that retributive impulses, by any name, undermine necessary forward-looking concerns about our future's safety, they poorly serve our needs, which include service to the victim, the community and the offender.
* Aristotle, , The Nicomachean Ethics, Bk. V, 1137b.CrossRefGoogle Scholar
** Dewey, John, “The Significance of Logical Reconstruction” in Reconstruction in Philosophy (New York: H. Holt, 1920)CrossRefGoogle Scholar at ch. 6.
1. “Insanity Defense By Dahmer Fails” The New York Times (16 February 1992) LI Google Scholar; “Report Documents Dahmer's Cannibalism” U.P.I. (4 August 1991)Google Scholar.
2. Henry, David, “3 Years for Junk King? Judge Advises Parole Board on Milken Time” Newsday (20 February 1991) 35 Google Scholar; Stevenson, Richard W., “Keating Freed on $300,000 Bail Under Ruling by a Federal Judge” The New York Times (19 October 1990) A23 Google Scholar.
3. Novak, Viveca & Freedman, Alix M., “Tobacco Industry Facing 2 Criminal Investigations” The Wall Street Journal (25 July 1995) A3 Google Scholar. Again, a caveat: Clearly, I do not mean to suggest that perjury before the United States Congress, if it was committed, is wicked only because it is prohibited. Perjury is itself as fundamental to our moral and political intuitions as almost any prohibition short of homicide in all its various forms. I do mean to say, however, that regulation of tobacco is itself a human construction not readily traceable (by most of us, at least) to deep, self-evident truths. In that sense, as with securities violations, these issues implicate (less obviously) contingent economic and social developments.
4. See e.g., Robinson, Paul H., “Hybrid Principles for the Distribution of Criminal Sanctions” (1988) 82 Nw. U. L. Rev. 19 at 19-22 Google Scholar.
5. Isn't there a Nietzschean version of poetic justice in the fact that the worst of the worst in Wisconsin's prison system decided the fate of Jeffrey Dahmer? See generally McCormick, John, “Jeffrey Dahmer's ‘Revelations’” Newsweek 124:24 (12 December 1994) 40 Google Scholar.
6. By “perfectionism,” I mean simply the belief “that morality directs us toward individual perfection.” Larmore, Charles, “Objectively Good” The New Republic 219:13 (28 September 1998) at 42 Google Scholar (reviewing Schneewind, J. B., The Invention of Autonomy: A History of Modern Moral Philosophy (New York: Cambridge University Press, 1998)Google Scholar).
7. “Children” in the preceding sentence is followed by “our future” to make the point that I am concerned here primarily with future generations not limited to children. I hope it is clear that protecting children as children is a special subset of our highest priority: the goal of protecting future generations.
8. These prescriptive categories are identified most closely with Bentham and Kant. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation (Oxford: Basil Blackwell, 1948) at 397.Google Scholar (condemning punishment unless the pain inflicted promises to exclude a greater social harm); Kant, Immanuel, “General Introduction to the Metaphysics of Morals” in The Philosophy of Law; An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, trans. Hastie, W. (Clifton, NJ and Edinburgh: Augustus M. Kelley, 1974) at 195 Google Scholar [hereinafter Kant, Philosophy of Law] (arguing for desert-based punishment, “[f]or one man ought never to be dealt with merely as a means subservient to the purpose of another”).
9. One begins here again with Kant: “woe to him who creeps through the serpent-windings of Utilitarianism to discover some advantage that may discharge him from the Justice of Punishment.” Kant, Immanuel, Philosophy of Law, ibid. at 195.Google Scholar Burgh, Richard W., “Do the Guilty Deserve Punishment?” (1982) 79 Phil, J.. 193 at 194 Google Scholar states the case against the Utilitarian in a similar vein. The belief among utilitarians that the greater good of punishment serves to mandate compliance with rules: “two wrongs make a right … [that is,] the second wrong has as a consequence a state of affairs in which there is more good than evil.” Burgh declares this justification “inadequate, in that it solves this problem at the expense of a conception of justice which most will refuse to abandon. Ordinarily, canceling a right [not to have deliberate pain inflicted upon you] merely on the grounds that its cancellation contributes to the preservation of the rights of a far greater number of people is a violation of justice.” Accord, e.g., Anderson, Jami L., “Annulment Retributivism: A Hegelian Theory of Punishment” (1999) 5 Legal Theory 363 at 367 Google Scholar [hereinafter Anderson, Annulment Retribution]; Morris, Herbert, “Persons and Punishment” (1968) 52 The Monist 475 Google Scholar; Oldenquist, Andrew, “An Explanation of Retribution” (1988) 85 Phil, J.. 464.Google Scholar
10. And again we begin with Bentham, Jeremy, “Principles of Penal Law” in Bowring, J., ed., The Works of Jeremy Bentham, Now First Collected; Under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1843) at 399-402 Google Scholar (describing the notion of a proper “fit” between crime and punishment as good if it is “confined to general terms, [but] it must be confessed it is more oracular than instructive”). See also Blackstone, , Commentaries, Book IV, ch. I; I.3 Google Scholar (noting that the primitive notion of doing to the wrongdoer what he has done to his victim is an idea incapable of generalization without absurdity); Mackie, J. L., “Morality and the Retributive Emotions” (1982) 1:1 Crim. Justice Ethics 3 at 4-5 Google Scholar.
11. See Hart, H.L.A., Law, Liberty, and Morality (Stanford, CA: Stanford University Press, 1963) at 61 Google Scholar (describing the work of James Fitzjames Stephen).
12. See Quinton, A. M., “On Punishment” in Ezorsky, G., ed., Philosophical Perspectives on Punishment (Albany, NY: State University of New York Press, 1972) 6 at 7 Google Scholar (originally published in (1954) 14 Analysis 133 (describing Hegel's annulment theory as “clearly utilitarian” in its desire to return to the status quo ante), [hereinafter Perspectives]. See also Hart, H.L.A., “Prolegomenon to the Principles of Punishment” in Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968) at 9.Google Scholar [hereinafter Hart, Prolegomenon].
13. See e. g., Hampton, Jean, “The Moral Education Theory of Punishment” (1984) 13 Phil. & Publ. Aff. 208 at 214-15Google Scholar [hereinafter Hampton, Moral Education]; Mabbott, J. D., “Punishment as a Corollary of Rule-Breaking” in Gerber, Rudolph J. & McAnany, Patrick D., eds., Contemporary Punishment: Views, Explanations, and Justifications (Notre Dame, IN: University of Notre Dame Press, 1972) at 41 Google Scholar (originally published as “Punishment” (1939) 48 Mind 152 (stating that a reformatory theory would incapacitate “a bad man though not a criminal”) [hereinafter Contemporary Punishment].
14. See Rashdall, H., “Punishment and the Individual” in Perspectives, supra note 12 at 64 Google Scholar (“[H]ow the reformatory view of punishment can be accused of disrespect for human personality, because forsooth it uses a man's animal organism or his lower psychical nature as a means to the good of his higher self, I cannot profess to understand.”) (excerpted from author's Theory of Good and Evil: A Treatise on Moral Philosophy, 2nd. ed. (London: Oxford University Press, 1924)); Allen, Francis A., “The Rehabilitative Ideal” in Contemporary Punishment, ibid. at 209 Google Scholar (originally published as “Criminal Justice, Legal Values and the Rehabilitative Ideal” (1959) 50 Crim, J.. L. Criminology and Police Sci. 226)Google Scholar.
15. On the distinction between general justifying and secondary distributional rationales, see infra note 28.
16. See Dubber, Markus Dirk, “The Right to Be Punished: Autonomy and Its Demise in Modern Penal Thought” (1998) 16 L. & Hist. Rev. 113.Google Scholar
17. The expression is quoted in Hart, H.L.A., “Punishment as the Elimination of Responsibility,” supra note 12 at 163 Google Scholar, as coming from the Protogoras, line 324. The edition of Protogoras I am using does not contain this phrase, but does quote Socrates as saying that “punishment is not inflicted by a rational man for the sake of a crime that has been committed—after all one cannot undo what is past—but for the sake of the future.” The forward-looking nature of the punishment operated to insure that virtue “can be instilled by education; at all events the punishment is inflicted as a deterrent [either for the] same man … [or] someone else.” “Protogoras” in Hamilton, Edith & Huntington Cairns, eds., The Collected Dialogues of Plato: Including the Letters (Princeton, NJ: Princeton University Press, 1961) at 324b-cGoogle Scholar.
18. On the virtues of goodness, see Plato, , “Meno” in ibid. at 353 Google Scholar (“[I]t is plain that those who desire bad things are those who don't know what they are, but they desire what they thought were good whereas they really are bad; so those who do not know what they are, but think they are good, clearly desire the good.”).
19. In Gorgias, Socrates describes the person who would deny the reformative character of punishment as “evidently ignorant of the meaning of health and physical fitness.” The Collected Dialogues of Plato, supra note 17 at 479b.Google Scholar See Mackenzie, Mary M., Plato on Punishment (Berkeley, CA: University of California Press, 1981) at 179-95Google Scholar.
20. Ibid, at 195-206 (Mackenzie noting Plato's equivocation on theories of punishment).
21. If one lacks virtue, “man, woman, or child, must be instructed and corrected until by punishment he is reformed, and whoever does not respond to punishment and instruction must be expelled from the state or put to death as incurable.” “Protogoras” in Collected Dialogues of Plato, supra note 17 at 325a-b.
22. On virtue as knowledge in Platonic thought, see Berlin, Isaiah, “The Decline of Utopian Ideas in the West” in Hardy, Henry, ed., The Crooked Timber of Humanity: Chapters in the History of Ideas (Princeton, NJ: Princeton University Press, 1990) at 20, 27-30 Google Scholar.
23. On the latter, see e.g., Hart, H.L.A., “Prolegomena” supra note 12 at 14 Google Scholar (noting that the excused actor's psychological state … [may] exemplif[y] one or more of a variety of conditions which … rule out … public condemnation and punishment”); Dressier, Joshua, “Justifications and Excuses: A Brief Review of the Concepts and the Literature” (1987) 33 Wayne, L. Rev. 1155 at 1163 Google Scholar; Kadish, Sanford H., “Excusing Crime” (1987) 75 Calif, L. Rev. 257 at 260-61Google Scholar. See Model Penal Code §4.04 (defining contemporary practice as holding that an incompetent person—one who is unable to “understand the proceeding against him”—may not be “tried, convicted or sentenced … so long as such incapacity endures”).
24. See infra note 28.
25. Of course, that is precisely what Hart, H.L.A. proposed to do with his “Postscript: Responsibility and Retribution” in Prolegomena, supra note 12 at 210.Google Scholar As will be clear in what follows, others have followed suit. Whether that reconciliation works at a theoretical level, see e. g., Goldman, Alan H., “The Paradox of Punishment” (1979) 9 Phil. & Publ. Aff. 42Google Scholar (arguing that retribution and deterrence are inconsistent; thus, efforts to blend the two into one punishment regime, where punishment is both deserved and beneficial, will fail), is developed in text accompanying infra notes 179-85.
26. For a sustained effort to reconcile the major approaches around Rawlsian social contract principles applied to ideal and non-ideal conditions, see Sterba, James P., “Is There a Rationale for Punishment?” (1984) 29 Am. Juris, J.. 29 Google Scholar; see also Sterba, James P., “Retributive Justice” (1977) 5 Pol. Theory 349Google Scholar.
27. Putnam, Hilary, Pragmatism: An Open Question (Oxford: Basil Blackwell, 1995) at 30 Google Scholar [hereinafter Pragmatism] (describing Kant's ideas as conceptual choices “fixed … by some kind of thick transcendent structure of reason”).
28. At times, it is useful to distinguish between rational and moral justifications of punishment, the former of which “is the reason for engaging in this social practice” and the latter “why the practice is morally permissible.” Dolinko, David, “Mismeasuring ‘Unfair Advantage’: A Response to Michael Davis” (1994) 13 Law & Phil. 493 at 494-95Google Scholar. I pursue what is essentially a rational justification of punishment in this work. I follow the dictum, however, that if a theory is not fully rational even on its own terms, it is because the theorist has made a mistake either in ratiocination, or in assuming the universality of his or her rationale, in which case it cannot be fully justified morally. I do not question mistakes in ratiocination in this work; it is the latter—the assumption of universality—that concerns me. This seems to me to be especially true where, as here, there is reason to doubt that any explanation can be fully justified rationally. Compare Williams, Bernard, “Moral Luck” in Moral Luck: Philosophical Papers, 1973-1980 (Cambridge: Cambridge University Press, 1981) at 20-39 CrossRefGoogle Scholar (arguing that rational justification is partly a matter of luck and, therefore, moral justification cannot reign as a supreme source of value). See my “Warranting the Affects of Moral Luck: The Role of Causal Antecedents in Sentencing Attempts,” [unpublished]. The best one can hope for is a theory that is rationally and morally justified only as far as it goes, that is, in the context in which it is useful.
The distinction between rational and moral justifications of punishment collapses on this viewpoint. See Putnam, Ruth Anna, “Justice in Context” (1990) 63 S. Cal. L. Rev. 1797 at 1806 Google Scholar, who makes the point succinctly: “For a pragmatist, normative theories function in the same manner as do descriptive or explanatory theories. They guide actions, and they are confirmed or disconfirmed, corroborated or discorroborated, by the outcome of those actions.”
29. Largely for the sake of convenience, I am lumping all consequential theories of punishment—including deterrence, reformation and incapacitation—into the general category of utilitarianism. Although reflecting different approaches, all three share the quality of rejecting desert as the general justifying rationale for punishment in favor of a forward-looking strategy. Moreover, I am using the term in a modest way; societal benefit is viewed here as a necessary—but not necessarily sufficient—condition for punishment. Thus, no “consequential” theory is disregarded simply because it contains deontological components. Cf.Sen, Amartya, “Consequential Evaluation and Practical Reason” (2000) 97 J. Phil. 477 at 492-94Google Scholar (discussing the role of rights and obligations in consequential moral evaluation). Note that the three strategies could employ retributive principles as a side constraint on the amount of punishment imposed in any case. See e.g, Murphy, Jeffrie G., “Retributivism, Moral Education, and the Liberal State” (1985) 4 Crim. Just. Ethics 3 at 5 Google Scholar (stating that a weak retributive theory, one which viewed desert solely as a necessary condition for punishment, could justify a desert function as a side constraint on utility; i.e., as a restraint on the severity of punishment in practice). I take up reformation/rehabilitation outside the historical context of general justificatory rationales at various points later in the article.
30. Mackie, J.L., supra note 10 at 4, “Morality and the Emotions” (1982) I Crim. Justice Ethics 3 at 4 Google Scholar, describes three variants of retributivism: negative, “the principle that one who is not guilty must not be punished” (that is, guilt is a necessary condition for punishment); permissive, “one who is guilty may be punished” (guilt is a sufficient condition for punishment); and positive, “one who is guilty ought to be punished” (guilt obligates the state to punish). He also adds a “quantitative variant” to the mix: “[E]ven one who is guilty must not be punished to a degree that is out of proportion to his guilt, that one who is guilty ought to be punished in proportion to guilt, or may be punished in proportion to his guilt.”
31. See e.g., Feinberg, Joel, The Moral Limits of the Criminal Law: Harmless Wrongdoing, vol. 4 (New York: Oxford University Press, 1988)Google Scholar (advancing an “expressive theory of punishment”); Anderson, , Annulment Retributivism, supra note 9Google Scholar; Hampton, , Moral Education, supra note 13Google Scholar; Hegel, too, begins with these assumptions. See McTaggart, J. E., “Hegel's Theory of Punishment” in Perspectives, supra note 12 (originally published in (1896) 6 Int'l. J. Ethics 479)Google Scholar; Morris, Herbert, supra note 9Google Scholar (proposing a free-rider justification for punishment); Oldenquist, Andrew, supra note 9Google Scholar (advocating a “communitarian” view of retribution whose distinctive feature is described as “sanitized revenge”).
32. See e.g., Anderson, , Annulment Retributivism, supra note 9 at 365 Google Scholar (describing the five propositions summarized in the text that follows); Burgh, , supra note 9Google Scholar (surveying a number of retributive theories); Goldman, , supra note 25Google Scholar.
33. On the primacy of pure reason, that is, a human faculty deemed to exist immune from empirical affects, see Kant's Groundwork of the Metaphysic of Morals trans. Paton, H.J. (New York: Barnes & Noble, 1948) at 55 Google Scholar [hereinafter Kant, Groundwork]. See text accompanying infra notes 43-57.
34. I use the qualifying phrase “more or less” for three reasons. First, because there is little agreement even on what composes the benefit, whatever it is that might compose the benefit is at least as much nonnative as it is descriptive of any actual benefit. See Burgh, , supra note 9 at 203 Google Scholar (describing four possibilities). Second, even in those areas where the “benefit” gained is almost obvious, e.g., property crimes such as theft or fraud, there is a question whether an advantage is, in fact, gained, at least in all cases. With respect to theft, e.g., the advantage to the wrongdoer who is caught is often short-lived at best. More generally, the benefit derived by crime exists only, or at least usually, if the wrongdoer remains unpunished. If the wrongdoer is apprehended, convicted, and punished, the whole calculus must change, for the wrongdoer's gain, if any, may disappear. This point raises thus raises an additional, third problem: Excepting the rare Gary Gilmores who seek punishment as expiation or self-restraint or capitulation, see Mailer, Norman, The Executioner's Song (New York: Vintage Press, 1998)Google Scholar, we assume criminals do not want to get caught, and that a substantial portion of the benefit to be gained exists only if they evade capture and the legal process that follows. The issue of “proportionality”—the retributive requirement that there exist a moral “fit” between crime and punishment—becomes even more difficult than it already is. See infra text accompanying notes—. The question, what one compares to determine fit, is nearly intractable. Although proportionality is a necessary condition for imposing punishment justly, it is not necessary to invoke a pure principle of retribution to satisfy it. See Hart, H.L.A., “Punishment and the Elimination of Responsibility” in Punishment and Responsibility, supra note 12Google Scholar.
35. Professor Hart set out a useful outline of the elements of punishment in his Prolegomenon, supra note 12 at 4-5:
(i) It must involve pain or other consequences normally considered unpleasant.
(ii) It [the act] must be an offence against legal rules.
(iii) It must be of an actual or supposed offender for his offence.
(iv) It must be intentionally administered by human beings other than the offender.
(v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.
See also Morris, Herbert, “A Paternalistic Theory of Punishment” (1981) 18 Am. Phil. Q. 263 at 264 Google Scholar (adding, most notably, a communicative element). I am also assuming throughout this discussion that the basic elements of fair process precede any imposition of punishment.
36. Writing in 1796, Kant concluded that punishment, at least following murder, is a categorical obligation: “Even if a Civil Society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of a People inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last Murderer lying in the prison ought to be executed before the resolution was carried out.” Kant, , Philosophy of Law, supra note 8 at 198.Google Scholar
37. See Mackie, , supra note 30 at 4.Google Scholar
38. Kant, , Groundwork, supra note 33 at 91 Google Scholar (emphasis in the original). Justifying punishment in the Kant, , Philosophy of Law, supra note 8 at 195 Google Scholar, he wrote: “For one man ought never to be dealt with merely as a means subservient to the purpose of another.”
39. Bentham, , “Principles of Penal Law,” supra note 10, Ch. XV, §1 at 83.Google Scholar I assume, for purposes of this essay, that “happiness” is not purely hedonic. See e.g., Rawls, John, “Two Concepts of Rules” (1955) 64 Phil. Rev. 3 at 9 Google Scholar (amending the utility principle to make clear that it is not purely hedonic, and thereby providing utilitarian theory with a rationale that would prevent punishing the innocent).
40. Among the many fascinations of this principle is the fact that Bentham begins with a statement of utility based on individual drives and employs it to defend a principle which, in practice, is implemented by the state for its collective benefit, but applied only in individual cases. On the relationship between the individual and the state, see “Principles of Penal Law,” supra note 10 at Bk. I, Pt. I, Ch.1Google Scholar.
41. The “radical defect” of retaliation, he argued, was its “inflexibility,” in addition to its tendency, at least in some class of cases, to “err on the side of excessive severity.” Bentham, , supra note 10 at Pt. II, Bk. I, Ch. [X at 41]Google Scholar. On the ability of vengeance to move the machinery of the state, see ibid. Pt. I, Ch. XVI at 383: “It is the vindictive satisfaction which often unties the tongue of the witnesses; … which generally animates the breast of the accuser; and engages him in the service of justice, notwithstanding the [many] expenses.”
42. Ibid.. at Pt. II, Bk. I, Ch VII at 403-04. “Equability” refers to the idea of treating similar offenses similarly. Ibid. at 403. He did subscribe to the general idea of treating likes alike, noting the tendency to prescribe “[t]he same punishments for the same offences,” but only as a general rule. He argued in favor of permitting the judge to tailor the punishments to a number of circumstances, else rigid legislative prescriptions “would be doubly vicious, as inefficacious, or as tyrannical.” Ibid., at Pt. I., Ch. IV at 33.Google Scholar
43. Plato, , Crito in Great Dialogues of Plato trans. Rouse, W. H. D. (New York: Mentor, 1984) at 450.Google Scholar (“[M]y way is and always has been to obey no one and nothing, except the reasoning which seems to me best when I draw my conclusions”). For an interesting analysis of this form of reasoning, see Woozley, A. D., Law and Obedience: The Arguments of Plato's Crito (Chapel Hill, NC: University North Carolina Press, 1979) at 22-27 Google Scholar.
44. Kant, , Groundwork, supra note 33 at 55.Google Scholar For an accessible discussion of the nature of a priori propositions to which I am much indebted, see Audi, Robert, Belief Justification, and Knowledge: An Introduction to Epistemology (Belmont, CA: Wadsworth, 1988) at 52-56 Google Scholar.
45. Rawls, John, Political Liberalism (New York: Columbia University Press, 1996) at 19 Google Scholar (emphasis added), [hereinafter Political Liberalism]. A similar conception seems to undergird the work of other liberal theorists, including Nagel, Thomas, “Moral Conflict and Political Legitimacy” (1987) 16 Phil. & Publ. Aff. 215Google Scholar.
46. Throughout this work, I rely on intuitionism as well, by which I mean, broadly, a set of “irreducible … first principles which have to be weighed against on another by asking ourselves which balance, in our considered judgment, is the most just.” Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 34 Google Scholar [hereinafter Rawls, Theory of Justice]. Intuitions are not absolutes. Thus, although I rely on experientially-informed intuitions throughout, I do so cognizant of at least one of its perilous shortcomings: It purports to obviate the skeptic's description of inescapable infinite regress by positing the existence of self-justifying beliefs, those which, by dint of unexceptionable definitions alone, eliminate the need for justification. If my reliance claimed access to “Truth,” it clearly would fail under conventional evidentiary assumptions. Intuitionism does entail circularity precisely because it attempts to justify itself; that is, it illustrates the postmodern insight by insulating itself from external justification. See Houser, Susan K., “Metaethics and the Overlapping Consensus” (1993) 54 Ohio St. L. J. 1139 at 1147.Google Scholar For several reasons, however, I cannot (or will not) recognize this insight as undermining efforts at producing normative ethics. To pursue an interest in political/legal philosophy, one must reason (at least) as if “there are facts of a certain kind which are independent of our evidence for them.” See Brink, David O., Moral Realism and the Foundations of Ethics (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar (proposing a thin definition of realism). Thus I question the intuitions of previous generations, but I do so cognizant of at least two insights: first, that “intuitions” are not obviously more immune to evolutionary tendencies than any other (at least partially) biological factor; and, second (and of equal import), as Bernard Williams also notes, “[e]thical theories have to start from somewhere.” Williams, Bernard, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985) at 93 Google Scholar [hereinafter Ethics]. At least in the realm of normative ethics, then, our intuitions present the only partially empirical, partially nonempirical foundation available, notwithstanding fundamental and ineliminable disagreement about what counts as a valid intuition. A thoughtful description of why reasonable people disagree about such matters is contained in Rawls, , Political Liberalism, supra note 45 at 54-58 Google Scholar, where he discusses “The Burdens of Judgment,” or why reasonable people disagree.
47. Kant reasons to the identity of rationality and autonomy as follows: The first categorical imperative demands that a rule be “universalizable,” that is, the rule or maxim must apply at all times to all rational persons: “I ought never to act except in such a way that I can also will that my maxim should become a universal law#x201D; Kant, , Groundwork, supra note 33 at 27 Google Scholar; see e.g., ibid. at 93 (asserting the “Idea of the will of every rational being as a will which makes universal law”). At the same time, to be autonomous means that one participates in moral reflection by “making … universal laws [and is, therefore,] free in respect of all laws of nature, obeying only those laws which he makes himself.” Ibid. at 97. But if the maxim is itself a universal requirement derived from rational intuition, and if a law, “is of such widespread significance as to hold, not merely for men, but for all rational beings as such—not merely subject to contingent conditions and exceptions but with absolute necessity,” ibid. at 73, then the distinction between the rules that govern others and rules that govern oneself collapses. All rational individuals are autonomous and capable of legislating identical universal rules. In that way, rationality and autonomy, in the end, come to the same thing: prescribing and living by (the only conceivable) universal laws. For a critique of this position, see Williams, , Ethics, supra note 46 at ch. 4Google Scholar.
48. I say “generally” to exclude strict liability crimes for which no mens rea element needs to be proved. See e.g., United States v. Dotterweich, 320 U.S. 277 (1943); Tenement House Dept. v. McDevitt, 215 N.Y. 160 at 168, 109 N.E. 88 at 90 (1915) (applying absolute liability to minor offenses which are not punished as “infamous”).
49. Several brief notes are in order about the flabby noun, understanding: First, the word calls attention to the fact that in many jurisdictions, the burden is on the defense to put the issue of mental capacity into play, if not to bear fully the risk of nonpersuasion. See Medina v. California, 505 U.S. 437 (1992) (surveying the variety of state procedural requirements and approving the requirement that the defendant bear the burden of proof). Moreover, absent efforts to join issue over the actor's mental capacity, the common law traditionally assumed minimum rationality at the time of the crime and at trial. Ibid. Finally, contemporary practice states that an incompetent person—one who is unable to “understand the proceeding against him”—may not be “tried, convicted or sentenced … so long as such incapacity endures.”: Model Penal Code §4.04.
50. See e.g., Prolegomena in Punishment and Responsibility, supra note 12 at 14 (noting that “the excused actor's psychological state … exemplified one or more of a variety of conditions which … rule out … public condemnation and punishment”); Dressier, supra note 23 at 1163; Kadish, supra note 23 at 260-61.
51. Kant, Groundwork, supra note 33 at 55.
52. Ibid. at 56 (emphasis in the original).
53. Ibid. at 10 (“Logic can have no empirical part …. [o]therwise it would not be … a canon for understanding and reason, valid for all thinking and capable of demonstration”). Cf. Audi, supra note 44 at 56 (observing that “rationalists virtually always assert or imply that … there is synthetic a priori knowledge,” that is, free standing, non-derivative principles). See also Moore, G. E., Principia Ethica (Cambridge: Cambridge University Press, 1966) at 143 Google Scholar (attributing the term to Kant, and defining same as a proposition “that is not an inference from some proposition other than itself”).
54. Kant, Groundwork, supra note 33 at 57.
55. Many theorists otherwise identified as utilitarians would adopt retributive principles as a side-constraint on the amount of punishment the state may impose. See supra note 29.
56. Principles of Morals and Legislation, supra note 8 at Ch. I, § XI at 2.
57. Ibid. at §§XIII-XIV.
58. Ibid. at §XIII fn.
59. Hampton, Jean, Political Philosophy (Boulder, CO: Westview Press, 1997) at 181.Google Scholar The same statement appeared in an earlier paper, “The Common Faith of Liberalism” (1994) 75 Pacific Phil. Q. 186 at 193. See generally Rawls, John, “The Idea of Public Reason Revisited” (1997) 64 U. Chi. L. Rev. 765.Google Scholar
As will be clear to the reader of this sub-section, I am using “reason” and “rationality” synonymously, although I understand that to be “reasonable” is not the same as being “rational.” The former entails the latter, but not necessarily vice-versa. As Rawls notes, “knowing that people are rational we do not know the ends they will pursue, only that they will pursue them intelligently.” Rawls, Political Liberalism supra note 45 at 48-49 n.1 (citing Sibley, W. M., “The Rational Versus the Reasonable” (1953) 62 Phil. Rev. 554 at 560.)Google Scholar As the remainder of this paragraph suggests, however, I believe that Professor Hampton is using “reason” and “reasonable” interchangeably.
60. Hampton, ibid. at 193-94.
61. Rawls, Theory of Justice, supra note 46 at ch. 7, sec. 62. On our innate capacity to generate questions and possibilities about the world, which can conduce to inter-subjective convergence on objective knowledge about the world, see Nagel, Thomas, The View From Nowhere (New York: Oxford University Press, 1986) at 82-86.Google Scholar
62. Lloyd, S. A., “Revitalizing Rawls” (1994) 69 Chi.-Kent L. Rev. 709 at 715.Google Scholar
63. For a valuable discussion of this idea, see Williams, , supra note 46 at 64-69.Google Scholar
64. Ibid. at 18.
65. This discussion is based on Moore, Michael, “The Moral and Metaphysical Sources of Criminal Law” in Pennock, J. Roland & Chapman, John W., eds., Criminal Justice: NOMOS XXVll (New York: New York University Press, 1985) at 16-23.Google Scholar
66. Ibid. at 18.
67. I am using the terms intentional and intention in different ways. Intentional refers to requirements of culpability: conduct which is undertaken with either the purpose (the “conscious object”) that an illegal result occur, or when the actor is “practically certain” that an illegal result will occur. See Model Penal Code §§2.02 (2) (a & b). Intention, in contrast, speaks more broadly to issues concerning the actor's internal mental life as it interacts with the rest of the world—her or his desires, beliefs, hopes, wishes, etc. See e.g., Searle, John R., Mind, Language and Society: Philosophy in the Real World (New York: Basic Books, 1998) at ch. 4.Google Scholar
68. It seems clear that we could not explain criminal conduct caused negligently or “recklessly”—that is, without the desire or knowledge that such a result is likely to occur, but in conscious disregard of a substantial and unjustifiable risk that the result might occur—in this schematic manner. See Model Penal Code §2.02(c).
69. As Williams notes, supra note 46 at 65, for a rational agent to act “on reasons,” he or she “must not only be an agent but reflect on himself as an agent, and this involves his seeing himself as one agent among others.” Such a stance requires a sense of reciprocity which adjudicated wrongdoers, by virtue of their conduct, have shown themselves to be unable to manage.
70. It is as if many theorists had forgotten Austin's famous injunction: “[O]rdinary language is not the last word: in principle it can everywhere be supplemented and improved upon and superseded. Only remember, it is the first word.” Austin, J. L., “A Plea for Excuses” (1956) 57 Proc. Aris. Soc'y 1 at 11.Google Scholar
71. This is a point Kant himself seemed to understand when he addressed, or seemed to be addressing, the hidden regression that underlies the way he accounts for “transcendental logic,” which “has this peculiarity, that besides indicating the rule … it can, at the same time, indicate a priori the case to which the rule must be applied.” Kant, Immanuel, Critique of Pure Reason, trans. Meikeljohn, J.M.D. (Amherst, NY: Prometheus Books, 1990) at 99.Google Scholar Blackburn, Simon, “Professor Whatever” The New Republic 222:6 (7 February 2000) at 37 Google Scholar (reviewing Umberto Eco, Kant and the Platypus: Essays on Language and Cognition), quotes Kant as describing the way to break the regress phenomenon as “an art concealed in the depths of the human soul, whose real mode of activity nature is hardly likely ever to allow us to discover, and to have open to our gaze.”
72. On the content of the self-restraint obligation, see, e.g., Burgh, , supra note 9 at 203 Google Scholar; Morris, , supra note 9 at 477 Google Scholar; Murphy, Jeffrie G., supra note 29 at 5.Google Scholar
73. This hypothetical society is described more fully by Rawls, John, “Legal Obligation and the Duty of Fair Play” in Hook, Sidney, ed., Law and Philosophy: A Symposium (New York: New York University Press, 1964) 3 at 9-10 Google Scholar. Rawls, employs variations on the theme fair play idea in his Theory of Justice, supra note 46 at 112.Google Scholar
74. Rawls, , Political Liberalism, supra note 45 at 16.Google Scholar See also Gutmann, Amy & Thompson, Dennis, Democracy and Disagreement (Cambridge MA: Belknap Press, 1996) at 56-57 Google Scholar. This notion was central to Kant as well. See e.g., Kant, , Philosophy of Law, supra note 8 at 157 Google Scholar (“No one is under obligation to abstain from interfering with the Possession of others, unless they give him a reciprocal guarantee for the observance of a similar abstention from the interference with his Possession.”).
75. Rawls, , “Legal Obligation and the Duty of Fair Play,” supra note 73 at 4.Google Scholar I might add that although I do not disagree with the conclusion, I am uncomfortable with the ease with which it was asserted.
76. See Simmons, A. John, “The Principle of Fair Play” (1979) 8 Phil. & Publ. Aff. 307 at 314.Google Scholar A close friend, who practices exclusively in criminal defense, noted in the margin of an early draft, however, that “There's no honor among thieves!”
77. The idea of debt as the obligation owed by the criminal to society has a long pedigree, going back at least as far as Hegel. See e.g., Hegel, G. W. F., Philosophy of Right trans. Knox, T.M. (Oxford: Clarendon Press, 1952) § 96 CrossRefGoogle Scholar; Anderson, , Annulment Retributivism, supra note 9;Google Scholar Morris, , supra note 9 at 478 Google Scholar (arguing that punishment is just for those who cause the maldistribution: “Justice-that is punishing such individuals-restores the equilibrium of benefits and burdens by taking from the individual what he owes, that is, exacting the debt.”). But see Mackie, , supra note 10 at 5 Google Scholar (stating that the annulment or debt theory is “incoherent”).
78. Rawls, John, Political Liberalism, supra note 45 at 137.Google Scholar See Larmore, Charles, “The Moral Basis of Political Liberalism” (1999) 96 Phil., J. 599 at 605-07Google Scholar. Cf. Nagel, Thomas, supra note 61 at 221 Google Scholar (asking whether liberalism is coherent if its fundamental tenet is that “we should not impose arrangements, institutions, or requirements on other people that they could reasonably reject (where reasonableness is not a function of the independent rightness or wrongness of the arrangements in question, but genuinely depends on the point of view of the individual to some extent”).
79. See Berkowitz, Peter, “Liberalism Strikes Back” The New Republic 217:24 (15 December 1997) at 32.Google Scholar A review of Renaut, Alain, The Era of the Individual: A Contribution to a History of Subjectivity CrossRefGoogle Scholar. See generally Ward, Cynthia V., “On Difference and Equality” (1997) 3 Legal Theory 65 at 68-9Google Scholar (noting that the principle favoring maximizing individual freedom derives from two assumptions: “first, that people are importantly the same, and therefore deserve an opportunity to choose and direct their lives; and second, that people are importantly different, which means that, given an equal chance to choose, their actual choices will vary.”) (citations omitted).
80. Larmore, , supra note 78 at 607.Google Scholar
81. The basic premise of human goodness raises historically and psychologically difficult issues that move far beyond the scope of this article. Suffice it to say that I think the question of why we should prefer to love one another and treat them with respect, that is, treat them as we would ourselves want to be treated, is partially contingent. Accommodation and tolerance are essential to democracy, and incredibly difficult to instantiate initially. See Rorty, Richard, “The Priority of Democracy to Philosophy” in Outka, Gene & Reeder, John P. Jr., eds., Prospects for a Common Morality (Princeton, NJ: Princeton University Press, 1993) 254 at 265 Google Scholar (noting that “it is not clear how to argue for the claim that humans ought to be liberals rather than fanatics without being driven back on a theory of human nature, on philosophy”). See Putnam, Hilary, The Many Faces of Realism (LaSalle, IL: Open Court, 1987) at 61 Google Scholar (stating that any defense of liberalism from the standpoint of value must also rest on psychological considerations). I think the existence of a capacity for good is one of, if not the only, foundational principle governing social interaction worth pursuing. Moreover, maintaining a social capacity for the good over time and among a plurality of peoples must invoke a contract principle, for I cannot imagine any other circumstance that would allow us to stop killing one another based on incommensurable and uncombinable first premises. I should add, however, that the terms of the contract I imagine are far broader than that invoked by, e.g., Rawls, John, who theorizes from a formal abstraction of the “fully cooperating member of society,” Rawls, , Political Liberalism, supra note 45 at 183 Google Scholar), and entails tolerance for genuine dangers directed at those with less than fully functioning reasoning capacities. See Nussbaum, Martha, “Disabled Lives: Who Cares?” The New Republic (11 Jan. 2001) at 35 Google Scholar (book review). I address some of these issues in “An Essay of Liberalism and Public Theology” (1999/2000) 14 J. L. & Relig. 229.Google Scholar
82. Regrettably, recent data on recidivism rates are not readily available. The Bureau of Justice Statistics published a study in 1989 titled “Recidivism of Prisoners Released in 1983.” The study indicated that within three years of their release in 1983, approximately 62.5% of the prisoners were rearrested, of whom 41% went back to jail. Rapists and murders, the focus of this paper, were substantially more likely than their counterparts to be rearrested for the same offense than those released for other offenses: 10.5 times more likely for recently released rapists, 5 times more likely for murders. Overall, however, their recidivism rates were slightly less than the norm: 51.5 for rapists, 42.1% for convicted murderers. Beck, Allen J. & Shipley, Bernard E., Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983 (1989). The abstract is available on-line at www.ojp.usdoj.gov/bjs/abstract/rpr83.htm.Google Scholar
83. There are a variety of ways one might phrase these questions. For example, Joel Feinberg, following Hart's dissection of the issue, distinguishes between general justifying aims of punishment—a question “any rule-structured practice or institution” must answer—and “rules of fair procedure that govern its activities.” See The Moral Limits of the Criminal Law: Harmless Wrongdoing vol. 4 (New York: Oxford University Press, 1988) at 146-48Google Scholar. See Hart, , Prolegomenon, supra note 12 at 9-13 Google Scholar. See also Hampton, Jean, “How You Can Be Both a Liberal and a Retributivist: Comments on Legal Moralism and Liberalism by Jeffrie Murphy” (1995) 37 Ariz, L. Rev. 105 at 105 Google Scholar (distinguishing between the general content of legitimate law, and the theory of the justification of punishment for wrongdoers).
84. Hart, , Prolegomenon supra note 12 at 10.Google Scholar Hart credited the observation to Rawls, John, “Two Concepts of Rules,” supra note 39 at 4-7.Google Scholar
85. Hart, , Prolegomenon, supra note 12 at 9.Google Scholar
86. Ibid. at 12 (predicting that a system which openly punished the innocent would succumb to such “apprehension and insecurity that any gain from the exercise of these powers would by any utilitarian calculation be offset by the misery caused by their existence”). Accord, Rawls, John, “Two Concepts of Rules,” supra note 39 at 10-13 Google Scholar. On Bentham's principle of frugality, see Principles of Morals and Legislation, supra note 8 at Bk. I, Pt. II, Ch. VII, § VI at 404 (describing the “perfection of frugality” as a system that not only imposes no superfluous pain, but simultaneously justifies the application of particular punishment in terms of the benefits produced).
87. This point was brilliantly made by Levi a half century ago. Levi, Edward H., An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1947 Google Scholar). I do not mean to champion Levi's account of analogical reasoning as reflecting key democratic values. See Sunstein, Cass R., Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996) at 74-76.Google Scholar
88. Hart, , Prolegomenon, supra note 12 at 6.Google Scholar
89. See generally Berlin, Isaiah, “The Romantic Revolution” in Hardy, Henry, ed., The Sense of Reality: Studies in Ideas and Their History (New York: Farrar, Straus and Giroux, 1996) at 168 Google Scholar (discussing the incommensurability and “uncombinability” produced by a society committed to “value pluralism”); Williams, Bernard, “Conflicts of Values” in Moral Luck, supra note 28 at 71.Google Scholar Cf. Murphy, Jeffrie G., “The State's Interest in Retribution” (1994) Contemp., J. Legal Issues 283Google Scholar (suggesting that liberalism cannot supply a universally acceptable justification of desert- based punishment).
90. Murphy, , ibid. at 291-92Google Scholar; accord, Murphy, Jeffrie G., supra note 29.Google Scholar
91. Herbert Morris, the philosopher to whom many contemporary retributivists turn for support, describes the societal benefit conferred on all citizens as freedom from interference in the enjoyment of certain rights, and that one who renounces the obligation to uphold the burden deserves punishment. Morris, , supra note 9 at 477.Google Scholar
92. Kant, , Philosophy of Law, supra note 8 at 196.Google Scholar
93. Anderson, , Annulment Retributism, supra note 9 at 367 Google Scholar; see also Burgh, , supra note 9 at 197 Google Scholar; Mackie, , supra note 30 at 4.Google Scholar
94. See supra text accompanying notes 41-43.
95. Principles of Morals and Legislation, supra note 8 at Bk. I, Pt. II, Ch.VII, §IV at 403.
96. Ibid. §VI at 404.
97. Ibid. Bk. I, Pt. I, Ch. 1, §§I, IV at 1.
98. See Nagel, Thomas, supra note 61 at 189-95.Google Scholar
99. Rawls, , “Two Concepts of Rules,” supra Google Scholar note 39 & n. 8 (noting that the utilitarian approach to punishment is a reaction to the history of “indiscriminate and ineffective” punishment practices).
100. Hart, , Prolegomenon, supra note 12 at 22.Google Scholar If one were punishing solely on utilitarian grounds, one could punish the insane, subject to over-punishment which creates disutilities, because although the individual wrongdoers could not be deterred, others who were not mad would be. Alternatively, we could adopt a broadly ranging regime of strict liability, where lack of intent is irrelevant to liability. See ibid. at 19-20.
101. Clearly this statement is overbroad. As Thomas Nagel points out, a large measure of all conduct is influenced by conditions over which the actor has little or no control. Nagel, Thomas, “Moral Luck,” in Mortal Questions (Cambridge: Cambridge University Press, 1979) 24 at 28 Google Scholar (identifying four forms of “luck” that affect the outcome of actions). It is worth noting that Hart's view also raises questions about our ability to rationalize excuses, and in particular duress. See Norrie, Alan, “Freewill, Determinism and Criminal Justice” (1983) 3 Legal Studies 60 at 62-4.Google Scholar I am addressing some of these issues more fully in a work entitled “Warranting The Affects of Moral Luck: The Role of Causal Antecedents in Sentencing Attempts.”
102. Hart, , “Legal Responsibility and Excuses” in Punishment and Responsibility supra note 12 at 44.Google Scholar Part of the problem may reflect Bentham's misunderstanding of the deterrence rationale's applicability. Responding to Blackstone, who had justified excuses based on defects in cognition rather than viciousness of will, Bentham, proposed to exempt from punishment those for whom punishment “must be inefficacious: it cannot act so as to prevent the mischief.” Principles of Morals and Legislation, supra note 8 at Pt. II, Bk. I, Ch. IV at 397 Google Scholar; Hart, , Prolegomenon, supra note 12 at 17-18 Google Scholar. As Hart points out, Bentham's statement is a non-sequitur. Bentham had not shown that there could be no deterrent effect if the state excuses those who lack capacity to commit a crime; he had shown only that, as to those wrongdoers, the threat of punishment is wasted. The actual punishment of those who commit crimes during madness or infancy certainly could have social utility; others may be deterred. Moreover, the mad man may be restrained so he does not injure others. Thus, solely on the utilitarian grounds Bentham preached, the state could punish the mad, provided, of course, that it avoided over-punishment, which generates disutilities. Ibid. at 19-20. Whether Bentham would have so urged we cannot know, because when he had the opportunity to address the question of the justice of so doing, he apparently misperceived the implications of the issue.
103. Anderson, , Annulment Retributism, supra note 9 at 371.Google Scholar On the relationship between Kant's understanding of constitutive autonomy and moral constructivism, see Rawls, , Political Liberalism, supra note 45 at 99-100 Google Scholar. I do subscribe to Larmore's understanding of the limitations inherent in the notion of freedom of self-determination. “I doubt that the moral life in general can make much sense if its roots are sought in freedom as a supreme value.” Larmore, , supra note 78 at 625.Google Scholar
104. Compare Hampton, Jean, “How You Can Be Both a Liberal and a Retributivist: Comments on Legal Moralism and Liberalism by Jeffrie Murphy,” supra note 83Google Scholar (arguing that there is sufficient play in the liberal idea of neutrality to tolerate retributivism) with Murphy, Jeffrie G., “Retributivism, Moral Education, and the Liberal State,” supra note 29 at 8 Google Scholar (arguing that a liberal society cannot agree upon a shared conception of moral good without undermining liberalism).
105. Part of the debate is directed at the following question: “Is the fact that certain conduct is by common standards immoral sufficient to justify making that conduct punishable by law?” Compare Hart, H.L.A., Law, Liberty, and Morality, supra note 11 at 4 Google Scholar (answering “no”) with Devlin, Lord, “Law, Democracy, and Morality” (1962) 110 U. of Pa., L. Rev. 635 (contra)Google Scholar. The debate is surveyed by Mitchell, Basil, Law, Morality, and Religion in a Secular Society (London: Oxford University Press, 1970)Google Scholar; Feinberg, Joel, The Moral Limits of the Criminal Law: Harmless Wrongdoing vol. 4 supra note 31Google Scholar. The debate continues in the States. Compare e.g., Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding, in a splintered opinion, Georgia's criminal prohibition on consensual sodomy) with Romer v. Evans, 517 U.S. 620 (1996) (striking down a state constitutional amendment that forbid legislation that might prevent discrimination against gays and bisexual).
106. See Dolinko, , supra note 28 at 500 n. 36Google Scholar (noting that it “is worth pointing out that the question of what ‘unfair advantage’ [the criminal gains] is is by no means a trivial question.”
107. See Burgh, , supra note 9 at 203.Google Scholar
108. Dagger, Richard, “Playing Fair with Punishment” (1993) 103 Ethics 473 at 481, 487.Google Scholar
109. Anderson, , Annulment Retributism, supra note 9 at 377 Google Scholar; ibid. 372-80. Punishment, according to this view, both restores the equilibrium and permits the wrongdoer to repay his debt and offers him respect by restoring his place in the community. Dressler, , supra note 23 at 1452-53Google Scholar.
110. Mackie, , supra note 30 at 5.Google Scholar On the similar position of Plato, see supra note 17. The qualification “necessarily” is added because one can imagine circumstances, including failed attempts and actual thefts, in which either no genuine harm is suffered (an attempted securities fraud scheme, for example) or, if suffered, the victim is (at least financially) made whole.
111. Goldman, , supra note 25 at 44.Google Scholar For a discussion of the problem of criminals from “rotten social backgrounds,” individuals whose conduct has been “profoundly disadvantaged by unjust social institutions,” see Anderson, , Annulment Retributism, supra note 9Google Scholar (concluding on Hegelian grounds that there is little society can do). See also Nagel, , supra note 101Google Scholar (describing the elements of luck that attends all conduct).
112. Among the strongest, and strangest, proposals put forth for determining proportionality is that of Davis, Michael, To Make the Punishment Fit the Crime: Essays in the Theory of Criminal Justice (Boulder, CO: Westview Press, 1992) at 135 Google Scholar (describing as a “heuristic device” the idea of licensing criminal conduct through a free market bidding system); “Why Attempts Deserve Less Punishment Than Completed Crimes” (1986) 5 Law & Phil. 1Google Scholar; “Criminal Desert, Harm, and Fairness” (1991) 25 Israel, L. Rev. 524, among othersGoogle Scholar. For a critique of the many definitions of “unfair advantage” Davis employs, see Dolinko, , supra, note 28 at 499-513 Google Scholar. Although I think Dolinko's criticisms are on target, he fails to address one question that I do not think Davis's proposals answer: Why would anyone bid for a license to steal? Davis, has described his system as one which, in effect, “pardons in advance” those who purchase a license to break the law. To Make the Punishment Fit the Crime, supra at 239.Google Scholar If the market price for such a license were less than the amount to be stolen, why wouldn't everyone purchase the license which, after all, legalizes what is otherwise illegal. If the price were more than the amount to be stolen, why would anyone purchase it? And if it were equal to the amount to be stolen, why bother? For an additional critique of Davis's approach which nonetheless reaches the same conclusion with respect to punishment for attempt, see Chapman, Bruce, “Agency and Contingency: The Case of Criminal Attempts” (1988) 38 U.T.L.J. 355 at 368-69Google Scholar (defending and explaining the need for unequal treatment for attempt and crimes based on legal as opposed to moral theory).
113. Mackie, , supra note 30 at 5.Google Scholar This idea, which Mackie critiques, is developed by Morris, , supra note 9Google Scholar. Punishment, Morris writes, is “just” for those who cause the maldistribution of benefits and burdens. “Justice—that is punishing such individuals—restores the equilibrium of benefits and burdens by taking from the individual what he owes.” Morris, , ibid. at 478.Google Scholar
114. Mackie, , supra note 30 at 5.Google Scholar
115. But cf. Allen, Woody, “Take the Money and Run” (1969)Google Scholar (blaming psychological depression on lack of success as a bank robber).
116. See e.g., Girouard v. State, 321 Md. 532, 583 A.2d 718 (1991); Commonwealth v. Carrol, 412 Pa. 525, 194 A.2d 911 (1963).
117. Some of the more notorious cases in this category include, e.g., Pinkerton v. United States, 328 U.S. 640 (1946) (upholding conviction of co-conspirator who had been in jail at time of, and who, the court acknowledged, did not participate in, crime of tax evasion); People v. Luparello, 187 Cal. App. 3d 410, 231 Cal. Rptr. 832 (1986) (affirming conviction for murder where accomplice killed person from whom defendant was seeking to find to obtain information, thereby undermining the defendant's actual intent of gathering the desired information); Wilcox v. Jeffery, [1951] 1 All E.R. 464 (K.B. 1951) (upholding conviction of magazine owner who attended concert and wrote favorable review of musician playing concert in violation of England's employment laws).
118. It is difficult to understand how the wrongdoer gains any satisfaction from random gun violence which, for example, kills an innocent child. See e.g., “Prepared Testimony of Wesley C. Mitchell, Chief of Police, Los Angeles School Police Department Before the House Education and the Workforce Committee Subcommittee on Early Childhood, Youth and Families” Federal News Service, Inc. (11 March 1999)Google Scholar. See also Keller, Loren, “Gunfire Again Strikes—Family Toddler's Condition Improves” World Herald (28 April 1998) at 9;Google Scholar Bender, Penny, “Americans Fear Crime, Want Something Done Now”, Gannett News Service (7 April 1994).Google Scholar Editorial, “ Rethinking Race” The New Republic 196:6 (9 February 1987).Google Scholar
119. As to heinous reasons, see e.g., Schneider, Karen S. & Tamarkin, Civia “Day of Reckoning: When Serial Killer Jeffrey Dahmer was Found Sane” People (2 March 1992) at 38 Google ScholarPubMed (noting that Dahmer hated no one and sought the death penalty, an unavailable option in Wisconsin). It is difficult even to conceive of an intended “benefit” in most cases of child abuse, and especially those in which an omission to intervene forms the basis of the conviction. See e.g., Tennessee v. Jordan, 2000 Tenn. Crim. App. LEXIS 90 (Tenn. Crim. App. 2000); Degren v. Maryland, 352 Md. 400, 722 A.2d 887 (Ct. App. 1999); State v. Ainsworth, 109 N.C. App. 136 at 144, 426 S.E.2d 410 at 415 (1993) (holding that the mother's failure to prevent the rape of her son while she was present and watching the act constituted child abuse); State v. Williquette, 129 Wis. 2d 239 at 250-51, 385 N.W.2d 145 at 155 (1986) (concluding that the mother's failure to prevent the father's abuse of their children by leaving them in his care when she knew he regularly abused them physically and sexually constituted child abuse under the language of the statute); State v. Williams, 4 Wash. App. 908, 484 P.2d 1167 (1971) (affirming negligent homicide conviction of Native American couple who, fearful of losing child to state authorities, forbore hospital treatment for infant's tooth abscess).
120. See e. g., Kadish, Sanford H. & Schulhofer, Stephen J., Criminal Law and Its Processes: Cases and Materials, 6th ed. (Boston, MA: Little, Brown, 1995) at 214-25Google Scholar. There are, of course, exceptions, but this huge subject is well beyond the scope of this article. Suffice it to say that motive is relevant to sentencing, especially for Hate Crimes, see, e.g., Wisconsin v. Mitchell, 508 U.S. 476 (1993), but “satisfaction derived from crime” is not expressly made a feature that enhances sentencing. See Hutchison, Thomas W., Yellen, David, Young, Deborah, & Kipp, Matthew R., Federal Sentencing Law and Practice (St. Paul, MN: West Publishing, 1999) at Ch. 3. Pt. A and Ch. 5, §5K2Google Scholar.
121. Burgh, supra note 9 at 203.Google Scholar
122. Ibid. at 204.
123. See supra note 28 (describing the unified role of theory in pragmatic approaches).
124. This is a point which, in fairness, Burgh clearly understands himself. “Ordinarily, canceling a right [not to have deliberate pain inflicted upon you] merely on the grounds that its cancellation contributes to the preservation of the rights of a far greater number of people is a violation of justice.” Burgh, , supra note 9 at 194.Google Scholar He overplays his hand, however, when he rejects Goldman statement that having rights ordinarily involves correlative duties to honor the same rights in others, and the failure to honor such duties calls for forfeiture of rights, except for those invasions of rights that involve intentionally physical injury.
Burgh replies that it does not always work that way. For example, he notes, if a judge takes a bribe, she has not thereby forfeited her right to a fair trial; one who violates the speech rights of another does not thereby lose his speech rights; and one who breaches a contract does not thereby lose the right to contract. “[V]iolation of rights does not, simpliciter, constitute forfeiture of rights.” Burgh, , supra note 9 at 198.Google Scholar
Not simpliciter perhaps, but sometimes! It is true that the judge does not lose her right to a fair trial, but that obtains because the very right violated, a fair trial, is itself politically and morally inviolable. In fact, the point is that corrupting the judicial system is a crime. If she lost her right to a fair trial, society would lose justice, for the right foregone would be an instantiation of injustice. As to the other examples, he moves too quickly. The Heckler does or may, at least temporarily, lose his right to speak where and when he wants. In fact, the heckler may be imprisoned. See e.g., Feiner v. New York, 340 U.S. 315 (1951). As to contracting, there are private remedies that may be imposed. See e. g., U.C.C. §§ 2-714 & 2-715. In addition, one suspects that he who repeatedly breaks his promises may become unable to find contracting partners in the future. The market may remedy that situation.
125. Rawls, , “Two Concepts of Rules,” supra note 39 at 8 and n. 9Google Scholar; Schulhofer, Stephen J., “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law” (1974) 122 U. Pa. L. Rev. 1497 at 1499-1500.Google Scholar
126. Kant, Compare, Philosophy of Law, supra note 8Google Scholar (advocating death for crimes related to “womanly Honor”) with Coker v. Georgia, 433 U.S. 584 at 592 (1977) (holding that the death penalty, following a conviction for rape, “is grossly disproportionate for the crime”).
127. Goldman, , supra note 25 at 43;Google Scholar accord, Quinton, , supra note 12 at 8-9 Google Scholar (“It is an odd sort of right whose holders would strenuously resist its recognition”).
128. See e.g., Nagel, Thomas, “Moral Luck” supra note 101 at 24, 34 Google Scholar (rejecting the Kantian hypothesis that good or bad will is “”unconditioned” [or] … free from external contingency”); Williams, Bernard, “Moral Luck,” supra note 28 at 29.Google Scholar
129. For a useful defense of the fairness principle as a mechanism of social cooperation, see Dagger, , supra note 108.Google Scholar
130. Goldman, , supra note 25 at 45,Google Scholar makes the necessary point for retributivists that with some rights, it makes no sense to say that the wrongdoer forfeits them. Rather, they lose some equivalent rights, or suffers harm “equivalent to that which would be suffered in losing the same rights.” “Equivalence here is to be measured in terms of some average or normal preference scale, much like the one used by the utilitarian when comparing and equating utilities and disutilities.” Ibid.
131. Hart, , “Punishment and the Elimination of Responsibility,” supra note 12 at 162.Google Scholar Plato's position is reviewed in text accompanying supra notes 16-22.
132. Ibid. Accord, SirBlackstone, William, IV Commentaries on the Laws of England: Of Public Wrongs (1769 facsimile edition; Chicago: University of Chicago Press, 1979) at 12, 14.Google Scholar On the epistemological problems that arise in the absence of foundational standards, see infra note 134.
133. Goldman, , supra note 25 at 50.Google Scholar There are many dimensions to the problem of matching punishment with culpability, and they tend to be especially acute with respect to inchoate crimes predicated on recklessness and negligence. Often, one might say in all humility, “There but for the grace of God go I!” This issue arises frequently when the subject turns to equalizing punishment between those who successfully complete crimes and those prosecuted for attempt. Compare e.g., Duff, R. A., “Auctions, Lotteries, and the Punishment of Attempts” (1990) 9 Law and Phil. 1Google Scholar (justifying the differential treatment of those who attempt and those who complete crimes) with Feinberg, Joel, “Equal Punishment for Failed Attempts: Some Bad but Instructive Arguments Against It” (1995) 37 Ariz. L. Rev. 117Google Scholar (suggesting that legislatures do away with causation in the definition of crimes; thus attempting murder and murder, all other things being equal, would beget the same penalty) and Shachar, Yoram, “The Fortuitous Gap in Law and Morality” (1987) 6 Crim. Just. Ethics 12Google Scholar (arguing for closing the gap in punishment between attempt and completion). All too often, however, the negligent or reckless wrongdoer who, through dint of good fortune, avoids causing harm, also avoids getting caught altogether. In the context of these “low” mens rea crimes, moreover, we could account for an additional bit of “luck,” which distinguishes between those who do, and those who do not, get caught. Efforts to equalize the punishment of the attempter who gets caught with the actor who, with equal culpability, causes harm thus generates an additional inequality, although it is one about which we neither can nor should do anything. I cannot think of any theoretical solution to this problem of inequality, other than abolishing unintended crimes, that would not require some sort of constant surveillance, thus presenting a social harm that far exceeds the “social harm” presented by the inequality which now exists concerning disparate sentences. For a suggestion that one could do away with low mens rea crimes, see Smith, J.C., “The Element of Chance in Criminal Liability” (1971) Crim. L. Rev. 63 at 72-75.)Google Scholar A proposed system lotteries for determining the penalties attributable to attempts, which fails to account for this other sort of luck, is contained in Lewis, David, “The Punishment That Leaves Something to Chance” (1989) 18 Phil. & Publ. Aff. 53Google Scholar (arguing for a penal lottery that requires the convicted actor to draw lots whose number and length are determined by a calculation of the actual percentage of risk imposed on the would-be victim); see Duff, R. A., supra note 133Google Scholar (critiquing the proposal).
134. I do not intend to take up the general epistemological question of objectivity. Suffice it to say that there are a number of ways one could pursue the question of “objectivity” with respect to morality while avoiding ethical skepticism. For example, Mackie, , supra note 30 at 7,Google Scholar points out that if there is such a thing as an instinctive retributive impulse, one could talk about the “supposed objective prescriptivity of moral features.” He does not mean to say that one can find an objective account or moral qualities or facts; he rightly rejects this notion. See e.g., Putnam, Hilary, supra note 81 at 20 Google Scholar (describing the variety of ways we adopt to conceptualize the same three objects, x1, x2, x3, he concludes that he is a small-r “realist” and that, despite such relativism, “it does not follow that the truth or falsity of everything we say using those concepts is simply ‘decided’ by the culture”). Mackie argues, plausibly, that given a human feature—retributive impulses—which includes “moral emotions,” we come through a socialization process to objectify moral truths which “yield the misleading appearance of objective reality.” Mackie, , supra note 30 at 7.Google Scholar
135. Ironically, this is precisely the dimension of human existence that the Federal Sentencing Commission has ruled outside judicial bounds in determining departures from the Guidelines. See e.g., Federal Sentencing Law and Practice, supra note 120 at Ch. 5, Pt. H (stating that factors such as education, drug or alcohol dependence, family ties, and the like should “not ordinarily” be relevant to sentencing).
136. Perhaps the most notorious inequalities in immediate need of political redress are those reflected in the race-related disparity of punishment between species of cocaine. See Kennedy, Randall, “Symposium; Changing Images of The State: The State, Criminal Law, And Racial Discrimination: A Comment” (1994) 107 Harv. L. Rev. 1255Google Scholar: Ogletree, Charles J., “The Significance of Race in Federal Sentencing” (1994) 6 Fed. Sent. Rptr. 229;Google Scholar Sklansky, David A., “Cocaine, Race, and Equal Protection” (1995) 47 Stan. L. Rev. 1283;Google Scholar Stuntz, William J., “Race, Class, and Drugs” (1998) 98 Colum. L. Rev. 1795.Google Scholar See generally Federal Sentencing Guidelines, supra note 120 at C.2, Pt. D., §2D1.
137. Some commentators view retribution as guaranteeing only that punishment is deserved on the basis of a prior committed crime. See e.g., Fletcher, George P., “The Place of Victims in the Theory of Retribution” (1999) 3 Buff. Crim. L. Rev. 51 at 52.Google Scholar As others have noted, however, that is a very weak definition of retribution which, on its own, at most permits punishment of those who commit crime and at least merely forbids punishing those who have not committed crime. See supra note 9.
138. See London, Jack, White Fang (New York: Signet Classics, 1991) at 41-46.Google Scholar
139. Something close to this sensation must be what John Mackie had in mind when he wrote that deeply “wrong action is not harmful just to this or that person, it is harmful simpliciter.” The victim's full appreciation of “wrongness” contains within it something akin to an absolute requirement of a hostile response. Mackie, supra note 30 at 6. Certainly Cain was aware of this potential some thousands of years ago when, after slaying his brother, he sought God's protection lest anyone “who comes upon me will kill me!” (Gen. 4:14) quoted in Fox, Everett, The Five Books of Moses: Genesis, Exodus, Leviticus, Numbers, Deuteronomy (New York: Schocken Books, 1995).Google Scholar See Blackstone, , supra note 10 at 7-8.Google Scholar
140. Oldenquist, , supra note 9 at 473 Google Scholar, describes the particular variant of retribution theory he advances as “sanitized revenge,” a slightly oxymoronic combination but, descriptively, one that seems mostly correct. (Revenge is “sanitized” by fair process delivered by authorized, disinterested individuals unrelated to the victims. Ibid. at 474.) The problem relates in part to the sad but unavoidable choice of the word “revenge.” Put simply, government should not be in the business of revenge, even a sanitized version. It exists to protect, not to perpetrate retaliation for transgressions.
141. See e.g., Sunstein, Cass R., “Preferences and Politics” (1991) 20 Phil. & Publ. Aff. 3Google Scholar; Sunstein, Cass R., “Lochner's Legacy” (1987) 87 Colum. L. Rev. 873Google Scholar; Sunstein, Cass R., “Legal Interference with Private Preferences” (1986) 53 U. Chi. L. Rev. 1129Google Scholar; Sunstein, Cass R., “Interest Groups in American Public Law” (1985) 38 Stan. L. Rev. 29Google Scholar; Sunstein, Cass R., “Naked Preferences and the Constitution” (1984) 84 Colum. L. Rev. 1689.Google Scholar
142. One has only to recall the language of Dred Scott and Plessy v. Ferguson to appreciate that we have made some strides. Dred Scott v. Sanford, 60 U.S. 393 at 407 (1857) (Taney, C. J.) (“They [slaves] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race.”); Plessy v. Ferguson, 163 U.S. 537 at 552 (1896) (“If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane”). See also Paulding, James Kirke, “A Northern Defense of Segregation,” in Ruchames, Louis, ed., Racial Thought in America: Volume 1: From the Puritans to Abraham Lincoln: A Documentary History (Amherst, MA: University of Massachusetts Press, 1969) at 427 Google Scholar [hereinafter Racial Thought in America] (arguing that racial intermarriage “is a scheme for lowering our [white's] standard of nature”); Agassiz, Louis, “The Varieties of Races,” in Racial Thought in America, supra 457 at 459 Google Scholar (asking whether the failure of Africans to adopt white ways “does not indicate in this race a peculiar apathy, a peculiar indifference to the advantages afforded by civilized society”).
143. I am indebted to my colleague Jack Sammons for this thoughtful suggestion.
144. Wittgenstein, Ludwig, Lectures and Conversations on Aesthetics, Psychology and Religious Belief (Berkeley, CA: University of California Press, 1966) at 54-55 Google Scholar. For a valuable discussion of Wittgenstein's ideas in this regard, see Putnam, Hilary, Renewing Philosophy (Cambridge, MA: Harvard University Press, 1992) ch. 7.Google Scholar
145. See Putnam, Hilary, Pragmatism, supra note 27 at 49-59.Google Scholar
146. Mackie, , supra note 30 at 7.Google Scholar See supra note 134.
147. See e.g., Hampton, , “Moral Education,” supra note 13Google Scholar; Morris, , “Paternalistic Theory,” supra note 35Google Scholar; Smith, Lisa Anne, “The Moral Reform Theory of Punishment” (1995) 37 Ariz. L. Rev. 197Google Scholar; Schweigert, Francis J., “Moral Education in Victim Offender Conferencing” (1999) 18:2 Crim. Just. Ethics 29.Google Scholar
148. See text accompanying infra notes 161-77.
149. See e. g., Kant, , Philosophy of Law, supra note 8 at 114-16Google Scholar (discussing the parents' obligation to care for and maintain the well being of children until they are able to do so for themselves as free individuals).
150. Morris, , supra note 9 at 476.Google Scholar This is, of course, built upon the Kant's famous dictum prohibiting the use of an individual merely as an instrument for the advancement of some social cause.
151. Ibid. at 494.
152. Ibid. at 500 (“[T]o possess a right is to possess something that constitutes a legitimate restraint on the freedom of action of others”). To deny anyone a legitimate right thus undercuts the whole system.
153. Anderson, , Annulment Retributism, supra note 9 at 363 Google Scholar (noting that the proposition that there are criminals from “rotten social backgrounds,” that is, individuals whose conduct has been “profoundly disadvantaged by unjust social institutions,” is unexceptionable).
154. Dewey, John, “Does Reality Possess Practical Character?” in Goodman, Russell B., ed., Pragmatism: A Contemporary Reader (New York: Routledge, 1995) 79 at 80.Google Scholar The issue of the way in which the criminal justice system guarantees failure is enormous and nuanced, but one very well-known example will suffice to make my point. The system's capacity to treat drug addicted inmates is woefully inadequate. Thus the system sends thousands of people to jail without treatment, which in turn generates a host of short and long terms problems, including narcotics' black markets within prisons and drug-related violence in prison. Thereafter, still-addicted inmates are released, virtually compelled to commit the same crimes they have committed in the past. On the rise of the federal prison population for drug related offenses, see, e.g., “Development in Law: Alternatives to Incarceration” (1998) 111 Harv. L. Rev. 1863 at 1887-88.
An effort to break free of this vicious cycle of recidivism began this past November, when Californians approved passage of Proposition 36, The Substance Abuse and Crime Prevention Act of 2000, an initiative which mandates probation and treatment for all first and second convictions of nonviolent drug offenders. Thrice convicted offender are incarcerated up to a maximum of 30 days, followed by conditional probation. See Workplace Substance Abuse Advisor 15:2 (30 November 2000).
155. James, William, “The Pragmatists Account of Truth and Its Misunderstanders” in Konvitz, Milton R. & Kennedy, Gail, eds., The American Pragmatists: Selected Writings (New York: Meridian Books, 1960) 71 at 71.Google Scholar See Putnam, , Pragmatism, supra note 145 at 12 Google Scholar (“What he [James] believed was that, since our claims get their substance from the role they play in our lives, an account of truth will gain its substance from the accompanying account of how to get the truth.”)
156. On the lack of a distinction between rational and moral justifications under a pragmatic regime, see supra note 28.
157. James, William, “What Pragmatism Means” in Hartman, James B., ed., Philosophy of Recent Times: II Readings in Twentieth-Century Philosophy (New York: McGraw-Hill, 1967) 39 at 48.Google Scholar See also James, , “The Pragmatists Account of Truth and Its Misunderstanders,” supra note 155 at 74 Google Scholar (noting that the pragmatic emphasis on practical can also mean that an idea has “a particular theoretic consequence which our mind practically works toward”); Dewey, John, “The Significance of Logical Reconstruction” in Philosophy of Recent Times, supra 221 at 226-27Google Scholar (“[N]otions, theories, systems, no matter how elaborate and self-consistent they are, must be regarded as hypothesis. They are to be accepted as bases of actions which test them, not as finalities. To perceive this is to abolish rigid dogmas from the world.”).
158. See e.g., James, , “The Pragmatists Account of Truth and Its Misunderstanders,” supra note 155 at 64 Google Scholar (making it clear that pragmatists do not throw prior epistemology out the window: “few things could be sillier than to ignore the prior epistemoiogical edifice on which the window is built”); Stout, Jeffrey, Ethics After Babel: The Languages of Morals and Their Discontents (Boston, MA: Beacon Press, 1988) at 256-57.Google Scholar
159. Posner, Richard A., “What Has Pragmatism to Offer Law?” (1990) 63 S. Cal. L. Rev. 1653 at 1656.Google Scholar
160. Ibid. at 1662.
161. Dewey, John, “Education as Growth” in Pragmatism: A Contemporary Reader, supra note 154 at 93.Google Scholar Clearly, Dewey is not speaking to the educability of convicted offenders. His statements assume a sort of “normal” capacity to learn, and do not speak to issues like rotten social background. Moreover, he assumes that what he calls “organic plasticity,” the physiological basis for adaptation, lessens with age. Ibid. at 98. At the same time, he emphatically rejects formalism; to assume that learning moves along passively toward an ideal but static end, he argues, poses as a futile assumption. Ibid. at 94.
162. Ibid. at 94.
163. Hampton, , “Moral Education,” supra note 13 at 214 Google Scholar (asserting that her moral education theory “attempts to justify punishment as a way to benefit the person who will experience it, a way of helping him to gain moral knowledge if he chooses to listen”).
164. Ibid. at 212-13.
165. Ibid. at 211 (accepting “the deterrence theorist's contention that the justification of punishment is connected with the fact that it is a necessary tool for preventing future crime and promoting the public's well-being”).
166. In this regard, the “clarification” of Hampton's theory concerning the object of education—whether punishment should teach wrongdoers about what is right or wrong, or teach them how to make better moral decisions generally—is a bit wide of the mark. Smith, , The Moral Reform Theory, supra note 147.Google Scholar The more appropriate questions are tailored to individual wrongdoers: Is there a capacity to learn? If so, what is it? And, assuming an identifiable deficit, how should the state effect (or attempt to effect) the lessons necessary to reduce it?
167. On the ability to teach respect, see e.g., Gilman, James E., “Compassion and Public Covenant: Christian Faith in Public Life” (1994) 36 J. Church & State 747;Google Scholar Prior, William J., “Compassion: A Critique of Moral Rationalism” (1987) 2 Phil. & Theology 173.Google Scholar
168. Foucault makes the point that as the modern penal institution has evolved, insuring justice has become a decentralized endeavor; and insofar as the language of the criminal justice system leaves any room for interpretation at any level of penal administration, discretion to “do justice” lies in the hands of the interpreter. Foucault, Michel, Discipline & Punish: The Birth of the Prison, trans. Sheridan, Alan (New York: Vintage Books, 1978) at 22-23.Google Scholar Thus, the job of reforming the system entails transforming the mind set of every individual who administers our penal system at every level.
169. See e.g., Schweigert, , supra note 147.Google Scholar The value of “restorative justice” in certain contexts is discussed in Braithwaite, John, “A Future Where Punishment is Marginalized: Realistic or Utopian?” (1999) 46 U.C.L.A. L. Rev. 1727 at 1746 Google Scholar (stating that studies have found 90% participant satisfaction with victim-offender conferences).
170. Cottam, Glenda L., “Mediation and Young People: A Look at How Far We've Come” (1996) 29 Creighton, L. Rev. 1517 at 1545 Google Scholar (stating that, when mediation is used after crimes of violence, “mediation must be adapted with great care to serve the more intense needs of these parties”). For a survey of state mediation and conciliation efforts with juveniles, see Beauregard, Stephanie A., “Court-Connected Juvenile Victim-Offender Mediation: An Appealing Alternative for Ohio's Juvenile Delinquents” (1098) 13 Ohio St. J. Disp. Resol. 1005 at 1008 n.16.Google Scholar
171. The German experience is discussed by Frehsee, Detlev, “Restitution and Offender-Victim Arrangement in German Criminal Law: Development and Theoretical Implications” (1999) 3 Buff., Crim. L. Rev. 235.Google Scholar
172. Most such arrangements, if successful, produce a contract to which the wrongdoer is bound. It is the case, of course, that if the wrongdoer breaches the agreement, ordinary avenues of punishment are reopened.
173. “Love your fellow as yourself: I am the LORD.” (Lev. 19:18). See also Matthew, 22:35-40 Google Scholar (“You shall love your neighbor as yourself”).
174. The story is told in many sources, including Armstrong, Karen, A History of God: The 4000-year Quest of Judaism, Christianity and Islam (New York: A. A. Knopf, 1993) at 72;Google Scholar Telushkin, Joseph, Jewish Literacy: The Most Important Things to Know about the Jewish Religion, Its People, and Its History (New York: W. Morrow, 1991) at 62-63.Google Scholar
175. Baeck, Leo, The Essence of Judaism (New York: Schocken Books, 1976) at 221;Google Scholar see also Dimont, Max I., Jews, God and History, rev. ed. (New York: Penguin Books, 1994) at 46 Google Scholar (suggesting that a “gulf in thinking” distinguishes the positive and negative wording). I think the point is that the negative form puts the potential injury caused by insensitive conduct in the first person. Rather than asking the sterile question whether I would have another do an act I am contemplating, Hillel asks the question: Would I wish suffer such a loss, endure such an incident? The pain to be felt has an immediacy that seems lacking when the maxim is put into the second person.
176. “An Essay on Liberalism and Public Theology,” supra note 81 at 271-83.
177. Benn, Stanley I., “Privacy, Freedom, and Respect for Persons” in Pennock, J. Roland & Chapman, John W., eds., Privacy, NOMOS XIII (New York: Atherton Press, 1971 Google Scholar) (explaining the bystander's negative reaction to Henry Higgins' act of recording Eliza Doolittle's speech during Act I of Pygmalion, as arising because Higgins “fails to show proper respect for persons”).
Clearly, I am presenting an ethical ideal for grounding real conduct. Determining what love “ought not to do,” on its own terms gets us little closer to the usable content of Hillel's message. It seems inevitably to be the case, moreover, that what is susceptible to negative phrasing is easily stated positively, as in Christian Scriptures, and at least some evidence suggests that to many early interpreters it made no difference at all. Thus the meaning of Leviticus and Hillel must move beyond discussions of the negative and positive wording to something else—to the entreaty to “go forth to study.”
178. Ideas are “uncombinable” when the comprehensive doctrines they represent are almost always (Berlin would say “always”) deeply incommensurable; that is, they evade comparison along a “higher” rationale and thus cannot be reconciled. See Berlin, Isaiah, “The Romantic Revolution,” supra note 89 at 168 Google Scholar; see generally Gray, John, Isaiah Berlin (Cambridge, MA: Harvard University Press, 1996) chs. 1 & 6Google Scholar. On the nature of a comprehensive doctrine, see Rawls, , Political Liberalism, supra note 45 at 152 n. 17Google Scholar (“[A] doctrine is fully comprehensive if it covers all recognized virtues within one precisely articulated system; whereas [it] … is only partially comprehensive when it comprises a number of nonpolitical values and virtues and is rather loosely articulated.”). See also Rawls, John, “The Priority of Right and Ideas of the Good” (1988) 17 Phil. & Publ. Aff. 251 at 252-53.Google Scholar
179. Goldman, , supra note 25 at 48 Google Scholar, states the following: “The problem is that while the mixed theory can avoid punishment of the innocent, it is doubtful that it can avoid excessive punishment of the guilty if it is to have sufficient deterrent effect to make the social costs worthwhile.”
180. Ibid. at 51.
181. The most obvious response to this argument is one Goldman has replied to, namely, that over-punishment might itself serve utility by enhancing deterrence: “Thus we might say here that criminals have rights not to suffer punishment beyond the equivalence limitation, except when such punishment is necessary to prevent greater or more violations of the rights of innocent people.” Ibid. at 52. The flaw in the argument, he notes, is that society cannot aggregate rights, creating a global aggregate right to be free from unwanted interference, and balance that global right against an individual defendant's right to be avoid unjust punishment. We cannot aggregate rights the way we do with utilities and disutilities. If we did so, we would in fact be on the road to punishing the innocent to prevent harm to others who have a right not to be harmed. Ibid. at 52-53. The argument about punishing innocents in taken up next.
182. Goldman correctly addresses, and correctly rejects, the argument that because the wrongdoer has committed a harm, he forfeits his right to treatment on a scale of invasive harm equal to that which the innocent deserve. As he notes, we are not counting the wrongdoer's interests equally with the innocent. Rather, the harm the wrongdoer has caused creates the condition for imposing a harm on him, in the form of punishment, which we could not impose upon the innocent victim. Ibid. at 46-47.
183. Ibid. at 58.
184. Ibid. at 50-51.
185. See supra note 9.
186. On the distinction between quantitative and qualitative hedonism, see Frankena, William K., Ethics, 2nd ed. (Englewood, Cliffs, NJ: Prentice Hall, 1973) at 83-85.Google Scholar
187. The number of scholars who have advanced this argument is surprisingly (even embarrassingly) large. See e.g., McCloskey, , “A Non-Utilitarian Approach to Punishment” in Perspectives, supra note 12 at 119, 123-26Google Scholar; Morris, , supra note 9 at 484 Google Scholar; Ross, W. D., The Right and the Good (Oxford: Clarendon Press, 1965) at 56-64.Google Scholar
188. See text accompanying supra notes 92-93.
189. Ewing, A. C., “Armstrong on the Retributive Theory” (1963) 72 Mind 121.Google Scholar
190. Rawls, , “Two Concepts of Rules,” supra note 39 at 11-12.Google Scholar
191. Fletcher, George P., Basic Concepts of Criminal Law (New York: Oxford University Press, 1998) at 31 Google Scholar (arguing that utilitarian indifference takes attention away from the particular facts of the case, i.e., the particular dangerousness of the offender rather than the nature of the offense committed and the amount of punishment attached thereto).
192. Ibid. See also Morris, , supra note 9 at 484 Google Scholar (arguing that if our correctional system were driven by a “preventative and curative ideology there would be less reason to wait until symptoms manifest themselves in socially harmful conduct”).
193. Anderson, , Annulment Retributivism, supra note 9 at 367.Google Scholar There is, I think, a tragic irony associated with this objection. The simple fact is that our political/judicial culture does permit incarceration in the absence of conviction, but such efforts seem far more closely related to fear-driven, vengeful motives than they do to a regime of unjustified, utilitarian-driven “treatment.” See e.g., Corrado, Michael Louis, “Punishment and the Wild Beast of Prey: The Problem of Preventive Detention” (1996) 86 J. Crim. L. & Criminology 778Google Scholar; Morris, Grant H., “Defining Dangerousness: Risking a Dangerous Definition” (1999) 10 J. Contemp. Legal Issues 61Google Scholar; Morse, Stephen J., “Blame and Danger: An Essay on Preventive Detention” (1996) 76 B.U.L. Rev. 113Google Scholar (justifying some “modest” detention).
194. Rawls, , supra note 39 at 88-89 Google Scholar, notes that to avoid misconstruing utilitarianism as a purely hedonic system, one needs to argue for amending the basic principle so that the “criterion is not the greatest benefit of society simpliciter, but the greatest benefit of society.” Punishing the innocent then provokes great dis-utilities.
195. See Rashdall, H., Punishment and the Individual, supra note 14 at 64 Google Scholar (“Kant himself never uttered anything so foolish as the maxim which indiscreet admirers are constantly putting in his mouth.”).
196. Morris, , supra note 9 at 482.Google Scholar
197. Ibid. at 483.
198. Ibid. at 483-84.
199. Morris is responding to what are admittedly extreme statements about the pathological nature of criminality, but none of the proponents of a disease model is quoted as advocating totally dismantling of our criminal justice system. Ibid. at 480-81, n. 1 (quoting from Russell, Bertrand, Roads to Freedom (London: G. Allen & Unwin, 1918) at 135 Google Scholar; Skinner, B.F., Science and Human Behavior (New York: Macmillan, 1953) at 115-16Google Scholar; Karpman, Benjamin, “Criminal Psychodynamics” (1956) 47 J. Crim. L. & Criminology 8Google Scholar; and Menninger, Karl, “Therapy, Not Punishment” Harper's Magazine (August 1959) at 63-64).Google Scholar [ Menninger, Karl, “Verdict Guilty-Now What?” Harper's Magazine 219:1311 (August 1959) 60 at 63-64].Google Scholar
200. Morris, , supra note 9 at 485.Google Scholar
201. Ibid. at 487.
202. See e.g., Kant, , Groundwork, supra note 33 at 91 (emphasis in the original)Google Scholar; Kant, , Philosophy of Law, supra note 8 at 195.Google Scholar
203. That is to say, of course, that there is an enduring ethical norm underlying the adverbs, and rightly we should honor it. It does acknowledge, concurrently, that for some ethical norms (at least) the room for free reign is considerably circumscribed by the realities of human-ness, whatever they are.
204. If you doubt the accuracy of this conclusion, ask yourself what your motives were when you last asked a friend to [choose the most relevant—or substitute your own—personal experience]: (a) drop you off at your neighborhood auto repair shop to pick up your car; (b) stop by the video store so you can drop your tape off before the penalty sets in? or (c) stop at the close-by (chain) pharmacy to pick up whatever.
205. Kant, , Groundwork, supra note 33 at 116.Google Scholar For a brilliant elucidation of the point, see Davidson, Donald, “Mental Events” in Essays on Actions and Events (Oxford; Clarendon Press, 1980) at 207-25.Google Scholar
206. The section in which the quote in the text appears is titled “On the Extreme Limits of All Practical Philosophy.” He begins the section by acknowledging that “freedom is only an Idea of Reason whose objective reality is in itself questionable, nature is a concept of the understanding, which proves, and must necessarily prove its reality in examples of experience.” Ibid. at 116.
207. Ibid. at 88-89. Indeed, in his Critique of Practical Reason (Amherst, NY: Prometheus Books, 1996) at 139-45Google Scholar, Kant embraced the antinomy of practical reason which, famously, he reconciled through the doctrine of appearances, which purported to limit human knowledge to what we perceive rather than what they are in-themselves.
208. Nagel, , “The Fragmentation of Value,” supra note 101.Google Scholar
209. U. S. Const. Amend. XIV states the following: “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” The commands of equal protection apply to the federal government through the due process clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954).
210. See e.g., F. S. Royster Guano Co. v. Virginia, 253 U.S. 412 at 415 (1920) (stating that “all persons similarly circumstanced shall be treated alike”); Simons, Kenneth W., “Equality as a Comparative Right” (1985) 65 B.U.L. Rev. 387 at 389 Google Scholar (noting that the claim of equal protection is met “by giving the comparatively situated classes the required equal treatment”).
211. U. S. v. Hester, 199 F.3d 1287 at 1290 (11th Cir. (Ga.) 2000) (employing a “rational basis” test); U.S. v. Lawrence, 179 F.3d 343 at 349 (5th Cir. (La.) 1999) (noting that absent an “invidious” motive, sentencing distinctions among co-defendants will be upheld so long as “the government had a rational and proper basis for its decision”).
212. See e.g., McCleskey v. Kemp, 481 U.S. 279 at 298 (1987) (upholding the death penalty imposed on a Black man despite substantial disparate impact on minorities where the challenger had not demonstrated that the impact existed “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group”) (quoting Personnel Administrator v. Feeney, 442 U.S. 256 at 279 (1979)).
213. See e.g., New Orleans v. Duke, 427 U.S. 297 at 303 (1976).
214. Lindsley v. Natural Carbonic Gas. Co., 220 U.S. 61 at 78 (1911).
215. The phrase is from Gregg, Benjamin, “Jurisprudence in an Indeterminate World: Pragmatist not Postmodern” (1998) 11 Ratio Juris 382 at 390.Google Scholar