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INEQUALITY, INCENTIVES, CRIMINALITY, AND BLAME

Published online by Cambridge University Press:  08 May 2017

Christopher Lewis
Christopher Lewis*
Affiliation:
Stanford University, [email protected]
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Abstract

The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.

Type
Research Article
Information
Legal Theory , Volume 22 , Issue 2 , June 2016 , pp. 153 - 180
Copyright
Copyright © Cambridge University Press 2017 

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References

1. Elijah Anderson, The Code of the Street: Decency, Violence, and the Moral Life of the Inner City (1999), ch. 2.

2. For broad overviews of the spectrum of available positions about the relationship between inequality and criminal responsibility, see From Social Justice to Criminal Justice: Poverty and the Administration of Criminal Law (William Heffernan & John Kleinig eds., 2000) and Justification and Excuse in the Criminal Law (Michael Corrado ed., 1994). Perhaps the three most influential discussions on the topic can be found in Judge David Bazelon's dissenting opinion in United States v. Alexander, 471 F.2d 923, 960–961 (D.C. Cir.), which he later defended in The Morality of the Criminal Law, 49 S. Cal. L. Rev. 385 (1976); Delgado, Richard, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation? , 3 Law & Ineq. 9 (1985)Google Scholar, and Murphy, Jeffrie, Marxism and Retribution , 2 Phil. & Pub. Aff. 217 (1973)Google Scholar.

3. Almost every author who defends a position like mine relies on this premise. See, e.g., Tadros, Victor, Poverty and Criminal Responsibility , 43 J. Value Inquiry 391 (2009)CrossRefGoogle Scholar; Duff, Antony, Blame, Moral Standing and the Legitimacy of the Criminal Trial , 23 Ratio 123, 137–139 (2010)CrossRefGoogle Scholar; Watson, Gary, A Moral Predicament in the Criminal Law , 58 Inquiry 168 (2015)CrossRefGoogle Scholar.

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5. Bazelon appeals to this kind of rationale in The Morality of the Criminal Law, supra note 2. Sarah Buss also develops a more philosophically sophisticated version of that view in Justified Wrongdoing, 31 Noûs 337 (1997).

6. Cf. Judge Thurman Arnold's decision in Holloway v. United States, 148 F.2d 665 (D.C. Cir. 1945), 666–667, where he argues, “Our collective conscience does not allow punishment where it cannot impose blame.” David Shoemaker criticizes versions of this view in two recent papers: Shoemaker, David, On Criminal and Moral Responsibility , in 3 Oxford Studies in Normative Ethics (Timmons, Mark ed., 2013)CrossRefGoogle Scholar, and David Shoemaker, Blame and Punishment, in Blame: Its Nature and Norms (Justin Coates & Neal Tognazzini eds., 2013), at 100–118.

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11. There is also a sense in which we sometimes use “blame” to denote a causal relation: for example, we blame the traffic when we are late to work. This paper is not concerned with that causal sense of blame.

12. Some moral theorists argue that people can, and perhaps ought to, blame (or forgive) people for the way they are, in addition to the things they have done. See, e.g., Sher, George, Blame for Traits , 34 Noûs 146 (2002)Google Scholar, and Macalester Bell's related discussion in Forgiving Someone for Who They Are (And Not Just What They've Done), 77 Phil. & Phenomenological Res. 625 (2008). I do not want to take a position on that issue, as the questions in this paper have to do with the norms governing when and how much we ought to blame people for actions (in particular, malum in se crimes), not traits.

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15. David Hume, An Enquiry Concerning Human Understanding (1902) (1748), §VIII, pt. II, no. 76.

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25. Id. at 277.

26. Id. at 265.

27. Bell could have in mind an account of action individuation where intentional content is built into moral permissibility—so there would be no such thing as “doing the right thing for the wrong reason”; but that is not the most obvious way to interpret her.

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29. See, e.g., Amartya Sen, Equality of What? in Tanner Lectures on Human Values (Sterling McMurrin ed., 1982); Martha Nussbaum, Women and Human Development: The Capabilities Approach (2000).

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43. See, e.g., Plato, The Republic (2000) (380 B.C.).

44. Elijah Anderson documents the pervasiveness of this phenomenon in The Code of the Street, supra note 1, ch. 2.

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49. There were over 300,000 arrests for the sale or manufacturing of drugs that year, and many more for possession of drugs that may have been good proxies for distribution. Id. It is important to note, however, that these statistics are likely to greatly underestimate the prevalence of rape and sexual assault, given the well-known problem of underreporting for those crimes.

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55. See, e.g., Ball-Rokeach, Sandra, Values and Violence: A Test of the Subculture of Violence Thesis , 38 Am. Sociol. Rev. 736 (1973)CrossRefGoogle ScholarPubMed; Cao, Liqun et al., A Test of the Black Subculture of Violence Thesis: A Research Note , 35 Criminology 67 (1997)CrossRefGoogle Scholar.

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59. Wolfgang & Ferracuti, supra note 4, at 163.

60. Cf., e.g., Peter Lipton, Inference to the Best Explanation (2004).

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65. The recent work of political scientists Martin Gilens and Benjamin Page might be taken to throw this premise into doubt. They show that “economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence.” Martin Gilens & Benjamin Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persp. Pol. 564 (2014). But the social structure cannot be understood solely in terms of public policy, and there are clearly aspects of the social structure that “average” citizens do exert control over. For example, public policy may have influenced the racial residential segregation that resulted from “White flight,” but White flight still required a specific set of residential choices on the part of average White citizens. Daria Roithmayr discusses a variety of other mechanisms through which this occurs in Reproducing Racism: How Everyday Choices Lock in White Advantage (2014).

66. Cf. Tadros, Duff, and Watson, all supra note 3.

67. George Vuoso argues that only an offender's socioeconomic circumstances, not his background, can mitigate his responsibility for a crime in Background, Responsibility, and Excuse, 96 Yale L. J. 1661 (1987). Vuoso's discussion of responsibility is related to, but not completely analogous with, my discussion of the justification of blame here.

68. Andrews, Dan & Leigh, Andrew, More Inequality, Less Social Mobility , 16 Applied Econ. Letters 1489 (2009)CrossRefGoogle Scholar. To be clear, I do not claim that socioeconomic inequality causes social immobility, an argument that is somewhat more controversial. See, e.g., Yaish, Meir & Andersen, Robert, Social Mobility in 20 Modern Societies: The Role of Economic and Political Context , 41 Soc. Sci. Res. 527 (2012)CrossRefGoogle ScholarPubMed.

69. Office of Management and Budget, Budget of the United States Government, Fiscal Year 2013 (2012).

70. See Blum, Lawrence, White Privilege: A Mild Critique , 6 Theory & Research Educ. 309 (2008)Google Scholar.

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75. Strawson, supra note 13.

76. Fried, supra note 8.