DOI 10.1007/s11572-008-9046-5 ORIGINAL PAPER Justifying Punishment: A Response to Douglas Husak Kimberley Brownlee Ó Springer Science+Business Media B.V. 2008 Abstract In Why Criminal Law: A Question of Content?, Douglas Husak argues that an analysis of the justifiability of the criminal law depends upon an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment both must show why the state is permitted to infringe valuable rights such as the right not to be punished and must respond to two distinct groups of persons who may demand a justification for the imposition of punishment, namely, individuals subjected to punishment and the society asked to support the institution of punishment. In this discussion, I analyse Husak s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. I also consider two other distinct groups of persons who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment, namely, direct victims of crimes and criminal justice officials. Keywords Rights Criminal law Douglas Husak Justification State punishment Introduction In Why Criminal Law: A Question of Content?, Douglas Husak argues that criminal law is distinct from other types of law in that it authorises the state to impose punishment on those who breach its norms. An analysis of the justifiability of the criminal law thus requires an analysis of the justifiability of state punishment. According to Husak, an adequate justification of state punishment must do at least two things. First, it must show why the state is permitted to infringe valuable rights. In brief, Husak maintains that persons have a right not to be punished which is overridden when the punishment imposed upon them is justified. Second, an adequate justification of punishment must respond to two K. Brownlee (&) School of Social Sciences, University of Manchester, Arthur Lewis Building, Oxford Rd, Manchester M13 9PL, UK e-mail: Kimberley.brownlee@manchester.ac.uk
distinct groups of persons who are in an appropriate position to demand a justification for the imposition of punishment. These groups are the individuals subjected to punishment and the society asked to support the institution of punishment. My discussion, while supportive of Husak s view that criminal law and state punishment are inextricably linked and difficult to justify, is critical of the two conditions for justification that he identifies. First, I analyse Husak s account of the right not to be punished with an eye to showing that the parameters of that right do not extend to the cases that would make it controversial. Second, I consider two distinct groups of persons, not highlighted by Husak, who have equal standing to alleged offenders and society to demand justification for the imposition of state punishment; these groups are the direct victims of crimes and criminal justice officials. I agree with Husak that the role played by police officers, prosecutors, and other officials is a neglected area in criminal justice theory. One way to begin to remedy this is to recognise that this group has weighty reasons to demand justification for the criminal justice practices in which they are required to play a part. The Right Not to be Punished Before we discuss the right not to be punished, let us consider briefly what we mean by punishment so that we may better determine the proper parameters of this right. Given the difficulties in distinguishing punitive responses from civil sanctions, Husak rightly does not offer necessary and sufficient conditions for punishment, but rather highlights two problematic features of punishment, namely, that it involves the intentional imposition of both hard treatment and stigmatisation or censure. 1 In taking this line, Husak endorses a broadly communicative account of punishment according to which the very purpose of a punitive state sanction is to inflict a stigmatising hardship on an offender. A state response does not qualify as punitive unless its very purpose is to censure and to stigmatise. According to Husak, it is a gross understatement to say that punishment treats persons in a manner that typically is wrongful. Punishment treats people in a manner that typically is wrongful because it implicates moral rights. Persons have a right not to be subjected to hard treatment and censure by the state, and any state practice designed to impose hard treatment and to censure that was not punishment would be said to implicate rights. Therefore, Husak argues, we have reason to hold that the practice of punishment also implicates rights, and the only reason we lack this response to state punishment is that we assume the punishment is justified. Now, the idea of a right not to be punished is controversial only in relation to justified punishments since persons rights doubtlessly are implicated in some way when persons are punished erroneously, disproportionately, or otherwise unjustifiably. The idea of a right not to be justifiably punished is controversial partly because it is counterintuitive as I show below, but also because it lends a hint of circularity to Husak s first condition for an adequate justification of punishment. On Husak s account, to justify punishment we must show (amongst other things) why the state is permitted justifiably to interfere with the right not to be punished. 2 In other words, Husak seems to say that to show that punishment is justified we must show why justified punishment is justified. 1 For simplicity, Husak maintains that all modes of punishment involve hard treatment or deprivation. 2 Husak appeals to Judith Jarvis Thomson s distinction between infringing rights and violating rights. Husak characterises an action that implicates rights justifiably as an infringement of rights and an action that implicates right unjustifiably a violation of rights. However, by invoking the notion of implication, Husak
Putting circularity aside, if we endorse an interest theory of rights, then we must ask whether persons who are justifiably punished have interests in not being punished that are sufficiently weighty to ground a duty in others not to punish them. Here are three points to consider. First, it is in persons interests to take responsibility for their actions. If we adopt an Aristotelian conception of the person as a being that strives for rational excellence, then, as John Gardner suggests, what matters for persons is that they give a good account of themselves by being able to offer reasons for why they acted as they did. Persons basic responsibility, as Gardner calls it, does not involve their seeking to avoid the bad consequences of their conduct by denying responsibility. Rather, it involves their asserting that, despite everything, they are responsible adults. Gardner states, Since all rational beings want to assert their basic responsibility, all else being equal they cannot but welcome whatever contributes to that assertion. Punishment contributes to that assertion if it expresses their basic responsibility if that is the public meaning of a punitive act. 3 It is reasonable to assume that persons not only would want to assert their basic responsibility if they take themselves seriously, but have an interest in asserting it as rational persons. If accepting justified punishment provides the most effective way or the only way for persons to demonstrate responsibility for their conduct as rational agents, then their interest in basic responsibility casts doubt on the idea of a right-generating interest in avoiding punishment. If, however, accepting such punishment does not serve their interest in taking responsibility for their conduct (perhaps, refusing to be swayed is the best way to take responsibility, or accepting a criminal conviction, not punishment, is the best way to take responsibility), then their interests in basic responsibility could be consistent with avoiding punishment, and thus, could recommend a Husakian conception of the right not to be punished. The question that arises though is whether persons have other key interests, such as interests in being absolved of their crimes, which speak against an inalienable right not to be punished. Second, many theorists argue that we cannot divorce the communication of censure from the imposition of hard treatment. 4 If we accept this and if we deny that persons have a right not to be justifiably censured or judged for their offences, then we must also deny that persons have a right not to be justifiably punished. 5 Third, if persons had an inalienable right not to be punished, then the state that justifiably punished a person would owe that person an apology for infringing her rights. 6 The Footnote 2 continued may misrepresent Thomson s distinction between infringing and violating, particularly if her intention is that infringement leaves open the question of whether the action is justified. 3 Gardner (2003). 4 C.f. Duff (1998). 5 Moreover, since the forms of punishment permitted by a communicative theory necessarily are modest so as not to drown out the moral appeal of the communication (as Andrew von Hirsch would say), it is unlikely that a person s interests against hard treatment would be sufficient to ground a right not to be punished. 6 This point was noted by Antony Duff at the British Academy conference Why Criminal Law? in January 2007.
state might also owe her compensation and reparation for this breach of her rights. Since it seems strange to say that a state that justifiably punished a person could owe her either an apology or compensation, it seems unlikely that her rights have been infringed. 7 Against these observations are various reasons Husak identifies for endorsing an inalienable right not to be punished. First, there is a value in expressing what is problematic about punishment in terms of rights because it helps to remind us that laws backed by penal sanctions are presumptively unjust. Second, if we hold that rights always are implicated by punishment and the criminal laws, then we may be more vigilant to ensure that rights are not violated by punishing defendants when we lack a justification, or by inflicting a quantum of punishment that exceeds what is justified. Third, expressing what is problematic about punishment in terms of rights helps us to resist the tendency to accept some kinds of reason (e.g. merely utilitarian reasons) as sufficient to justify the enactment of a criminal offence and the punishment of those who breach it. These three considerations highlight the instrumental value of considering punishment in relation to rights, but they offer no independent theoretical foundation for an inalienable right not to be punished. Moreover, they give Husak s account a utilitarian gloss that presumably he would wish to avoid. If Husak s three considerations identify the most compelling reasons to endorse an inalienable right not to be punished, then, given my comments about interests and state duties, there is reason not to endorse an inalienable right not to be punished. There need not be an inalienable right against punishment for an offender legitimately to demand an explanation for the imposition of punishment. The offender is well-placed to demand an explanation because she has a certain standing as a member of the community who is about to be subjected to the coercive power of the state. She has a prima facie objection to make (unrelated to any right not to be punished) since she is about to be negatively affected by the hardship and stigma inherent in punishment. And her objection need not be anything more than a prima facie objection to give her legitimate grounds to demand justification. The right to demand a justification for punishment is distinct from the right not to be punished and it is only the former which could be said to be inalienable. Let us turn therefore to Husak s second condition for an adequate justification of punishment, which is that our defence of punishment, and thereby of criminal law, must satisfy not only the offender who is subjected to punishment, but also the society that is asked to support this institution. After analysing Husak s comments on these two groups, I note the importance of undertaking to justify both state punishment and the criminal law to direct victims and to criminal justice officials. Groups to Whom Justification is Owed According to Husak, justifying punishment to the offender requires many things, the most important of which is a theory of criminalisation. On a plausible theory of criminalisation, Husak argues, a criminal law is unjustified unless, first, it is designed to prevent harm, second, it prohibits conduct that is wrongful, and third, it imposes a punishment that is 7 The idea of an inalienable right not to be punished could be defended on an abolitionist theory of punishment. If, for example, the imposition of punishment by human beings on other human beings could never be justified, then persons have, for all practical purposes, an inalienable right not to be punished. And yet, on a plausible version of consequentialism, that right not to be punished could be infringed in imperfect human criminal justice systems when imposing otherwise indefensible punishment is necessary and sufficient to achieve the best consequences.
deserved. 8 Fourth, the governmental interest in enacting the law must be substantial, fifth, the law must directly advance the government s purpose, and sixth, the law must be no more extensive than necessary to achieve its objective. As Husak observes, a theory of criminalisation along these lines would radically reduce the number and scope of criminal offenses, 9 and would thereby lessen the task of justifying the criminal law to those who breach its norms. Justifying punishment to society is equally, if not more, difficult, given the drawbacks of this practice. Husak notes three such drawbacks. First, the expense of our system of criminal justice is astronomical. Second, our system of punishment is susceptible to grave error. Third, the power created by an institution of punishment is certain to be abused. Since officials can and do exceed the limits of their authority intentionally or inadvertently, we must have good reasons to vest such power in legal officials. It is unclear whether Husak intends to represent offenders and society as demanding justification for different things. When discussing offenders, Husak focuses upon justifying the imposition of a particular act of punishment. When discussing society, he focuses upon justifying the institution of punishment. 10 If different things are being justified to these two groups and if different kinds of justification are required for each thing, then this would explain why Husak says that the social perspective will permit far greater deviation from the ideal theory of law before the practice becomes unjustified than will the perspective of the individual who is about to be punished. However, there is reason to question that different things must be justified to the (alleged) offender than to society. When we engage with the offender, we must justify to her not only this particular act of punishment, but also the institution of which this act is an example. Similarly, when we engage with society, we must justify not only the institution of punishment which society is asked to support, but also the state s punishment of any particular person as an act taken in society s name. The institution of punishment might admit greater deviation from the ideal than individual acts of punishment do before becoming unjustified. But, since both the institution and the particular acts of punishment must be justified to both offenders and society, neither of these groups will be satisfied with less of a defence than the other. Nonetheless I agree with Husak that these two groups make distinct demands for justification. That is because the reasons for which they demand justification are different. Whereas the offender has reasons that relate principally to the treatment to which she is subjected, citizens have reasons that relate to what is being done on their behalf and with their collective resources. Like offenders and society, direct victims and criminal justice officials have distinctive reasons for demanding justification for the practice of state punishment. The reasons relate to certain drawbacks of the criminal justice system for these groups. Victims, like offenders, take different attitudes toward the imposition of punishment: one victim may desire that a case not proceed, another may find a given punishment too lenient or too harsh, and another may prefer to have more power over the resolution of the matter. Some drawbacks of state punishment for victims therefore are: (1) the extent to which victims are side-lined in the process, (2) the susceptibility of the system to error and abuse, and (3) the ordeal of the process. Any adequate defence of state punishment and the criminal law must respond to these drawbacks for victims. 8 Concerning Husak s condition that the punishment be deserved, we might distinguish between deserved punishment and justified punishment without resorting to a hybrid theory of punishment. See Tasioulas (2006). 9 C.f. Husak (2003, 2007). 10 C.f. Rawls (1955).
Some (interconnected) drawbacks of state punishment and criminal law for criminal justice officials are: (1) the difficulty of assessing the relative and absolute severity of both offences and punishments, (2) the potential for abuse, (3) the susceptibility to error, (4) the presumptive unjustness of what officials are asked to do, (5) the discretion they are given which their collective wisdom does not warrant, 11 (6) the difficulty officials have in interpreting the law, (7) the difficulty officials have in balancing retributive and consequentialist aims, and (8) social injustice and its filtering into the criminal justice system. Even when officials perform their job impartially and properly, they are not in full control of other branches of the system, and this affects the defensibility of their own contribution to the criminal justice process. American judges, for example, cannot control the fact that far more black people come before them than white people. Criminal justice officials are required to do certain morally problematic things (such as arrest socially deprived offenders and sentence people to death). They are given imperfect tools with which to do those things. And, they are stymied by the errors and prejudices of other members of their professions. Given both the role that officials must play and the impact that other officials decisions have upon the defensibility of what they do, their demands for justification of the process of which they are a part cannot be reduced to the demands of society for justification. Officials must justify their own conduct not only to society and to offenders, but also to victims and to other members of their own professions who look to their conduct for guidance and consistency. In light of these various factors, the institutions of criminal law and state punishment may be very difficult to defend to criminal justice officials who, like offenders, play a direct role in this practice. Conclusion If we reject the inalienable right not to be punished, then the task of justifying state punishment may seem easier. But if we recognise that victims and criminal justice officials, like offenders and citizens, are distinct groups of persons who may demand justification for the institutions of punishment and criminal law, then justifying these institutions becomes remarkably difficult. I would endorse Husak s suggestion that we require a theory of criminalization that radically reduces the number and scope of criminal offences and that emphasises the importance of the state having a substantial interest directly served by a given criminal law. Both criteria seem to be necessary to defend criminal law and state punishment to all those who have sufficiently weighty reasons to demand justification for these institutions. Acknowledgements For very helpful comments, I thank Antony Duff, Adrian Viens, and the participants of the British Academy conference on Why Criminal Law? January 2007. References Carlen, P. (1994). Crime, inequality, and sentencing. In D. Garland & R. A. Duff (Eds.), A reader on punishment. Oxford: Oxford University Press. Duff, A. (1998). Desert and penance. In A. Ashworth & A. von Hirsch (Eds.), Principled sentencing: Readings on theory and policy (2nd ed.). Oxford: Hart Publishing. 11 C.f. Carlen (1994).
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