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WHY ONLY THE STATE MAY INFLICT CRIMINAL SANCTIONS: THE CASE AGAINST PRIVATELY INFLICTED SANCTIONS

Published online by Cambridge University Press:  01 June 2008

Alon Harel
Alon Harel*
Affiliation:
Faculty of Law, Hebrew University, Jerusalem, and University of Texas School of Law
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Abstract

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private individuals. This hypothesis has given rise to recent calls to reform the state's criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction (for violating a state-issued prohibition) on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction.

Type
Research Article
Information
Legal Theory , Volume 14 , Issue 2 , June 2008 , pp. 113 - 133
Copyright
Copyright © Cambridge University Press 2008

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References

1. For contemporary advocates of shaming sanctions, see Kahan, Dan, What Do Alternative Sanctions Mean?, 63 Chi. L. Rev.591–653 (1996)Google Scholar; Kahan, Dan M. & Posner, Eric A., Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & Econ. 365–391 (1999)Google Scholar. In a recent article, Dan Kahan expresses reservations concerning his earlier advocacy of shaming penalties. See Kahan, Dan, What's Really Wrong with Shaming Sanctions, 84 Tex. L. Rev. 2075 (2006)Google Scholar.

2. See McDonald, Douglas C., Public Imprisonment by Private Means: The Re-emergence of Private Prisons and Jails in the United States, the United Kingdom, and Australia, 34 Brit. J. Criminology29 (1994)Google Scholar.

3. See the Offender Management Bill in the British Parliament, available at http://www.publications.parliament.uk/pa/cm200607/cmbills/009/2007009.pdf.

4. See, e.g., Garvey, Stephen P., Can Shaming Penalties Educate?, 65 U. Chi. L. Rev. 748–749 (1998)Google Scholar; Harel, Alon & Klement, Alon, The Economics of Stigma: Why More Detection of Crime May Result in Less Stigmatization, 36 J. Legal Stud.355–378 (2007)Google Scholar.

5. See H.L.A. Hart, Prolegomenon to the Principles of Punishment in Punishment and Responsibility: Essays in the Philosophy of Law 1, 4–5 (1968).

6. The part of the civil law bearing the strongest resemblance to the criminal law is the law of tort. Consequently, textbooks of criminal law often start by differentiating between criminal law and tort law. See, e.g., Glanville Williams, Textbook of Criminal Law 25 (2nd ed. 1983).

7. These are the examples provided in George Fletcher, Rethinking Criminal Law (1978), at 412.

8. Asserting that the agency of the state is a “noncontingent normative precondition for the just infliction of punishment” raises questions concerning the nature and the strength of this normative precondition. The normative-precondition justification would not preclude the possibility that there may be circumstances under which nonstate agents can justly inflict criminal sanctions. Yet the normative-precondition justification maintains that under normal conditions, there are central features of the state that make it the only agent that can inflict criminal sanctions. Radical transformation of the state or of other agents may open the possibility that other agents would justly inflict criminal sanctions. The conditions that could justify such a change ought to be more extreme than those that would justify such a change under the instrumental view. A simple change in the costs of privately inflicted sanctions or in the deliberative powers of the state or private agents would not suffice to justify transferring the power to inflict sanctions from the state to private agents.

9. See John Locke, Two Treaties of Government: Second Treatise sec. 13 (Peter Laslett ed., 1960).

10. See Dennis C. Mueller, II Public Choice (1989), at 9–15.

11. This is an argument in favor of the state inflicting the sanction or at least paying for its infliction but not necessarily determining its size.

12. See R.A. Duff, Trials and Punishments (1986), at 198.

13. See Hill, Thomas E., Kant on Wrongdoing, Desert, and Punishment, 18 L. & Phil.407, 425 (1999)Google Scholar.

14. Duff, supra note 12, at 198. For a clarification and defense of the claim that the guilty deserve to suffer, see Davis, Lawrence H., They Deserve to Suffer, 32 Analysis136–140 (1972)Google Scholar. For a very careful articulation of desert theories, see Hill supra note 13, at 413–414. Hill distinguishes between practical or action-guiding desert theories and merely faith-guiding or wish-expression desert theories. The former argue that perpetrating crimes provides one a reason to inflict sufferings on the guilty while the latter argue merely that perpetrating crimes provides one a reason to wish that the guilty suffer. It is clear that a justification of punishment ought to be based on a strong, i.e., action-guiding desert theory.

15. See R.A. Duff, Punishment, Communication and Community 23–27 (2001).

16. See Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy 3–4 (1988).

17. See Becker, Gary, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ.169–217 (1968)Google Scholar.

18. Economic advocates of deterrence theories have often argued for the use of “bounty hunters” to detect crime. See, e.g., Polinsky, Mitchell, Private Versus Public Enforcement of Fines, 9 J. Legal Stud.105–127 (1980)Google Scholar; Shavell, Steven, The Optimal Structure of Law Enforcement, 36 J. L. & Econ.255–287 (1993)Google Scholar. The advocates of shaming penalties also share the belief that privately inflicted sanctions may be a better way of preventing crime. See Kahan, What Do Alternative Sanctions Mean?, supra note 1; Kahan & Posner, Shaming White-Collar Criminals, supra note 1; Kahan, What's Really Wrong, supra note 1.

19. Locke, supra note 9, at 87.

20. See, e.g., Pamela Barmash, Homicide in the Biblical World 24 (2005).

21. See Joel Feinberg, The Expressive Function of Punishment, in A Reader on Punishment 74 (R.A. Duff & David Garland ed., 1994).

22. Id. at 76. Of course one could argue that a private sanction inflicted by individuals in the community may even better express the community's sentiments. It is not, however, my aim here to defend the position that the state speaks “in the name of the community” but only to point out theorists who defend state-centered justifications for criminal sanctions.

23. Immanuel Kant, The Metaphysics of Morals 106 (Mary Gregor trans., ed., 1996).

24. This conclusion follows from the interpretation given to this section by Thomas Hill, who believes that Kant's theory of punishment is a mixed theory. Establishing the practice of punishing wrongdoers is designed to protect freedom rather than to inflict deserved sanctions. Once this scheme is established, state officials are required to impose sanctions as prescribed by law without deviating for pragmatic reasons. This section is understood by Hill to highlight the officials' duty to apply the law, i.e., to “reaffirm the idea that those responsible for enforcing the law must apply the legally prescribed sanctions without concern for whether punishment has any deterrent value in the particular case.” See Hill, supra note 13, at 433. After the dispersion of the state, there are no officials who are charged with the responsibility of imposing sanctions prescribed by law. Hence the infliction of suffering cannot be justified as a part of the faithful fulfillment of the officials' duties.

25. To establish the alleged naturalness of parenthood, think of a community in which parents are barred from inflicting sanctions on their children and the power to inflict sanctions is assigned to the parents' closest neighbors. Such a practice could be justified on the grounds that loving parents may be too soft and consequently that the sanctions they are likely to inflict on their children are too lenient. Neighbors, under this view, are less partial and more objective in their judgments concerning punishment. I suspect many would reject such a proposal as preposterous not merely because of the flaws in its factual premises. The resistance to such a proposal rests on the conviction that the power to punish “belongs” to the parents or that it is “natural” that parents are the ones who have the power to inflict sanctions and that stripping parents of their power to punish should be equated with stripping parents of parenthood.

26. The integrationist justification is hardly a novelty in the literature on parenthood. One influential argument suggests that the power to command and the duty to care are interrelated. See Saint Augustine, XIX City of God ch. 14 (Penguin Books, 2003).

27. Law and economics theorists have often advocated such a position. In the context of tort law, see, e.g., Cooter, Robert & Porat, Ariel, Should Courts Deduct Non-Legal Sanctions from Damages?, 30 J. Legal Stud.401–422 (2001)Google Scholar.

28. See, e.g., Bierschbach, Richard & Stein, Alex, Overenforcement, 93 Geo. L.J. 1743, 1750–1752 (2005)Google Scholar. Even theorists who support the substitutability of state-inflicted and privately inflicted sanctions concede that this is not the general view. See, e.g., Husak, Douglas, Already Punished Enough, 18 Phil. Topics79 (1990)Google Scholar. An interesting indication of the reluctance to take into account sufferings resulting from privately inflicted sanctions can be found in German criminal law. Section 51 of the German Criminal Code, entitled “Crediting,” requires courts to deduct sanctions imposed by courts for the same offense but it does not indicate that privately inflicted sanctions ought to be deducted. The German Criminal Code differentiates sharply between state-inflicted sanctions and privately inflicted sanctions.

29. See Husak, supra note 28, at 85. Husak himself, however, rejects this view.

30. Pragmatic concerns were often raised against shaming penalties. There are many who believe that shaming penalties are erratic and unreliable. See, e.g., Garvey, supra note 4. Others have pointed out that the more criminals are detected, the lesser the effectiveness of shaming penalties is. See Harel & Klement, supra note 4.

31. All conventional definitions of punishment include reference to such a requirement. See, e.g., Hart, supra note 5, at 4–5.

32. This way of articulating my claim is borrowed from the discussion of Scanlon's defense of freedom of speech. See Scanlon, Thomas, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 212 (1972)Google Scholar.

33. See James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055, 1091 (1998).

34. See Harel & Klement, supra note 4.

35. See Richard Posner & Eric Rasmusen, Creating and Enforcing Norms, With Special Reference to Sanctions, 19 Int. Rev. L. & Econ. 369, 371 (1999).

36. See Sharon Dolovich, State Punishment and Private Prisons, 55 Duke L.J. 437, 441 (2005).

37. For an examination of this claim, see McDonald, supra note 2, at 39.

38. See Michael Walzer, Hold the Justice, New Republic, April 1985, at 12.