Nov 25, 2007

virtue ethics and plea bargaining

Most of the cases I've seen for the current plea bargaining resolution use either a retributivist or utilitarian justification for punishment. Is there another way to think about the state's role in correcting criminal action?

In "A Virtuous State Would Not Assign Correctional Housing Based on Ability to Pay," Bradley W. Moore writes,
Virtue ethics, also referred to as Aretaic theory, offers a viable alternative to deterrence and retributivism that better accounts for both the practical and aspirational purposes of punishment. The essence of virtue ethics is that the moral value of an action depends neither on its conformity to categorical moral rules, as in deontological theory, nor on the overall happiness that the action causes, as in consequentialist theory. Rather, the morality of an action depends on both the action’s character and on the moral agent’s disposition while performing the action. The central purpose of virtue ethics is to answer the question, “How should I live?” instead of the question, “What is the right action?” Virtue ethics’ answer is that a person should live in a way that cultivates the virtues necessary for human flourishing. A moral agent exercises virtue through practical reasoning; knowing the proper action depends on wisdom, deliberation, and moral judgment. In other words, a virtuous agent acts not just rightly, but for the right reasons....

If criminal law’s function in society is to promote virtue, then punishment is justified only if it facilitates the development of practical reason: the tendency and motivation to do the right act because one values the proper reasons for acting rightly. When a criminal makes an unvirtuous choice, punishment plays an educative role. Punishment does not act, however, as a deterrent—a person should choose the right action out of a desire to do so, not out of fear of sanction. A criminal offense constitutes a failure of practical reason: the perpetrator acted through the wrong means or for the wrong ends. However, virtuous punishment habituates the offender to form a desire to act rightly for the right reasons.

Therefore, practical reason should guide the state in deciding what punishment to impose. Imposing either excessive or overly merciful punishment would not be virtuous if it inhibits rather than promotes the development of practical reason in the offender. The state should also impose punishment only for the right reasons—the cultivation of virtue and the promotion of human flourishing. The correctness of the punishment depends on the practical wisdom present in the justice system as a whole. Individual judges exercise practical wisdom when they determine fault and punishment. Likewise, the policies of the state should be evaluated based on the extent to which they reflect practical wisdom and instill virtue.
You might argue, on the Aff, that PBET, by turning justice into a song-and-dance between prosecutors and defendants, and by eliminating the judge's role, devalues the educative role of the justice system. Likewise, from the Neg, you might argue that PBET shows that the criminal is willing to help society as a start to the rehabilitative process.

Either way, a case based on virtue ethics might be a breath of fresh air in the stale second month, when everyone's already heard everything about plea bargaining in exchange for testimony.


BD said...

Thanks for the fresh perspective on ethics. We haven't actually had any local debates yet on PBET so nothing seems tired yet. First PBET debates for us are Dec 1, 8, and 15.

My daughter and I, (she debates, I judge :) just finished her Aff and Neg cases. We have read your LD blog for about a year. Thanks for posting your thoughts in the public arena.

Jim Anderson said...

I guess our region is cruel--in Open, we're required to switch to the new topic on December 8. At least the juniors and novices get a little more prep time.

Hey, and I'm glad to help. Readers like you are the reason I coach, judge, and blog about LD. Send along an email when your daughter runs her cases--I'd be interested to know what worked and what didn't. Good luck!