emotion, reason, and the law

David Arkush, in "Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for Law and Legal Theory," explodes the dichotomy between rationality and emotion in legal decision-making. The implications:

This Article has attempted to say much, but it can be reduced to a single point--law and legal theory treat emotion primarily as an object of reasoned decisions and policy making and as a source of interference in decisions, but empirical evidence suggests that emotion is a behavioral process that is critical to decisions. This shift in viewpoint has widespread implications for law, legal theory, and policy. As a descriptive matter, it suggests that we should reevaluate legal doctrines that rely on the assumption that humans are mostly emotionless actors and reexamine areas of law that concern consent, states of mind, and the causes of behavior. As a normative matter, emotional realism suggests that we have no empirical or even internally consistent definition of welfare on which to base policy. Welfarists should seek a new definition, and they are more likely to find it in processes than in objects. There is much work to be done.

Use this as a launching pad toward...
* Blocks against consequentialism / utilitarianism (which are welfarist, and, as Arkush argues, empirically and internally slippery)
* A way to defend treating juveniles and adults equally--it could be fallacious to presume that juveniles are "more emotional" when making decisions
* A kritik of the legal system

from the retribution vault

The November/December resolution for 2010 invites us to contrast a public health approach to a criminal justice approach to illegal drug abuse. One of the most fruitful ways to address the conflict is through the lens of retributive justice.

I haven't sketched out an entire position for each side--I'm too busy helping my debate team figure out their cases--but I do have time to post some links to previous writing on the subject. Enjoy.

1. Gerard Bradley's take on punishment as a way of maintaining "equal legal liberty for all."

2. Sharon Dolovich's Rawlsian perspective arrives at a similar destination by a different route.

3. There's more than one kind of retributivism, mind you.

4. A while back I wrote a case about plea bargaining that employed several good retributive arguments.

5. On the other hand, how about a virtue ethics approach?

LD mailbag: retribution and the ICC

Regarding the current resolution, a reader writes:

I'm really struggling with this topic, but I think I have an idea for a case. However, I'm afraid that I'm misunderstanding the topic or this idea isn't addressing it in the entirety that it needs to. The resolution has been reading to me that the question for the affirmative to answer is whether or not the US should (I'm defining ought as "moral rightness") submit itss citizens to the jurisdiction of an ICC. My idea is to have a value of cosmopolitan justice and criterion of retribution with the premise that justice is the highest value of any society, making it the highest value of the world/global society, and that the way for justice to be best achieved in this situation is for retribution to be fulfilled because retribution will give the just due to those who have harmed. My question is about the retribution part; I'm afraid I'm simplifying the debate too much because I'm seeing all of these other arguments that are much more complex. I see many other arguments about how submitting will support human rights, but is it wrong to interpret the topic as a response to injustice? Obviously, if there is a need for a court, then it's after the fact; the time for preserving rights is past, and now all that can be done is to punish those who have harmed. I interpret the debate to be that the US should submit if more justice will be achieved by doing so; one of the biggest benefits of an ICC is that there is an opportunity for retribution that wouldn't exist without it. The rest of my points are set up to prove that more justice is achieved for both US citizens and the rest of the world by submitting, so do you think that this could work? Or, like I said earlier, am I missing the point of the debate?

I think there's much to work with here.

1. Philosophically speaking, retributivism is perhaps the strongest justification of punishment, it a moral duty, and thus fulfilling the burden of "ought" in the resolution. Utilitarian theories (often based on deterrence) are a harder sell, since they require an empirical confirmation that the Court actually deters crime, and can be shown, absent side constraints, to justify horrific punishments to maximize deterrent value.

2. I don't think your doubts about retributivism are due to its weaknesses, but rather due to a misconception of the strength of rights-based affirmatives. It's much easier to show a duty to right a wrong than to show a positive obligation to prevent a wrong, especially in a world where national sovereignty is still alive and well and realpolitik holds sway.

3. One way retributivism might flow to the Neg is to argue that the ICC (and international jurisprudence, generally) prohibit the use of the death penalty. The worst atrocity crimes, including murder, merit at most life in prison without parole. If we have a moral duty to punish proportionally--almost always a key tenet of retributivist theory--and if mass murder requires the death penalty, then the U.S. should not submit to the jurisdiction of a court that will fail to carry out justice. (Even from a utilitarian standpoint, it could be argued that the ICC's inability to sentence criminals to death reduces its deterrent value to nil.) For a retributivist defense of the death penalty, start with Kant.

4. Varieties of retributivism (and the title of an anti-death-penalty retributivist piece.)

5. More on the different justifications for punishment, from the SEP.

Your thoughts and questions, as always, are appreciated.

a critical question for contractarian neg cases in the felon voting resolution

Regarding the current resolution, this is about the clearest statement for the negative position based on retribution and the social contract that you're going to find. It comes from "The prisoner's campaign: Felony disenfranchisement laws and the right to hold public office," by Andrea Steinacker, found in the Brigham Young University Law Review.

The main theory behind retributive punishment is that "someone who has violated the rights of others should be penalized, and punishment restores the moral order that has been breached by the original wrongful act" [citing Ken Greenwalt's article, "Punishment," in the Encyclopedia of Crime and Justice]. Retribution is also seen in terms of fairness to the law-abiding citizen. Under John Locke's concept of the social compact, "[a] man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact" [citing Green v. Board of Elections]. Under the retributive theory of punishment, those who break the law should not be allowed to participate in making the law, whether as a voter or as a political officer.

Later on, Steinacker quotes from another important felon disenfranchisement case, Texas Supporters of Workers World Party Presidential Candidates v. Strake:

"The State has a valid interest in ensuring that the rules of its society are made by those who have not shown an unwillingness to abide by those rules."

If you note carefully, neither of these quotes really explains why the rulebreaker, as it were, has abandoned the right. It's merely presumed to be "fair" and "valid."

So, here's the question: why? Why is it fair and valid to presume that disenfranchisement is a logical or natural consequence of violating the social contract? In other words, does an argument to the social contract really run deep enough?

Update: Mr. Kuznicki provides an answer.

varieties of retributivism

The current resolution concerns the appropriateness of punishment for hate crimes. One fruitful avenue for a criterion is retributivism, either on the Affirmative or Negative. The core of retributivism: that the guilty are punished because they deserve it, not because of any future considerations. That said, there are two major forms of retributivism, as Clare Finkelstein, in "Death and Retribution," found in the Summer 2002 edition of Criminal Justice Ethics, sees it. Both are attempts to wrestle with the implications of lex talionis, Latin shorthand for the concept of "an eye for an eye." How literally should we take the phrase?

Not very. Our first option, then,

...distributes punishments proportionately, so that the worst crimes are matched with the worst penalties, and so on down the line. This method dictates only relative levels of desert, rather than requiring any particular objective measure of what criminal acts deserve what treatment. We might call this version of retributivism the "proportionate penalty" theory.

Note that the ceiling comes first: choose the most serious offense, define the most serious possible punishment, and work downward. The problem, then, is what criterion we use to justify the most serious punishment. Is it death? Torture? Isolation? Attending a Hannah Montana concert?

There's another option.

The second, and more promising strategy is to attempt to establish a moral equivalence between crimes and permissible punishments. This strategy asserts that the perpetrator should suffer an amount equivalent to the harm or moral evil inflicted on the victim, but the kind of harm or moral evil involved need not match. That is, instead of either assigning the same harm or evil as punishment that the offender inflicted on his victim, or fixing penalties proportionately by making sure that the right intervals obtain between levels of punishments, we can match crimes with punishments on an absolute scale, but establish only a rough moral equivalence between the two. We would seek to inflict on the perpetrator by way of punishment the nearest morally permissible form of punishment to the act the perpetrator committed. Let us call this version of retributivism the "moral equivalence" theory of justified punishment.

Finkelstein traces this idea back to Kant. It suffers from a similar problem; we need to determine exactly how to correlate, say, a fine with a felony. We have a reason for doing so, but not a method.

Any debater running up against a retributivist case should ask some tough questions in CX about justifying particular punishments. These options provide a way out, but not a destination. That's up to you.

a Rawlsian approach to punishment

John Rawls, though setting out a liberal theory of justice, stopped short of justifying a particular view of punishment. Still, Sharon Dolovich is convinced that we can use the Rawlsian veil of ignorance to legitimize punishment in a liberal society. LDers contemplating the current hate crime resolution might take note of her article, "Legitimate Punishment in a Liberal Democracy," found in the Buffalo Criminal Law Review, available online [pdf].

Dolovich first warrants the use of deliberation in the "original position," in contrast to most punitive schemes, which operate in an ex post framework.* She writes,

[I]t is a basic assumption of the argument I develop--and indeed, of liberal democracy itself--that all members of society are moral equals, entitled to due consideration and respect as fellow human beings and fellow citizens. From this assumption, it does not follow that all citizens are entitled to equal treatment. To the contrary, by their actions, individuals may forfeit certain goods that other citizens enjoy. But on the theory of liberalism I adopt here, forfeiture in this sense does not negate an individual’s moral status: he or she is still a subject of justice, entitled to consideration as such.

This means that any legitimate theory of punishment necessitates the prior deliberation ("behind the veil") of those who, someday, will flout the law. Why should we allow the possibility that a reasonable deliberator might err when in the "real world?" Three reasons, Dolovich argues. First, imperfect legal sanctions mean that sometimes innocents will be punished. Second, people are people, and people make mistakes. Third, the unequal distribution of resources means that certain worse-off members will be more prone to commit crimes simply due to circumstances. (It is important to recognize that even a just society in a Rawlsian sense is not perfectly equal.)

Dolovich spends pages analyzing some of the potential results of the behind-the-veil deliberations, and the principles of just punishment that would result.

1. There shall be no incarceration for non-serious offenses, unless doing so would appreciably deter the commission of serious offenses.
2. Punishments of incarceration, when imposed for serious offenses, may be only as severe as necessary to appreciably deter offenses causing harm of equal or greater severity (the parsimony principle).
3. Before any punishment may be imposed, its deterrent effect must be shown to be reasonably certain or imminent, on the basis of standards and modes of reasoning acceptable to all.
4. Consistent with these principles, the state must do all it can to reform the criminal justice system in order to reduce as much as possible the danger of convicting the innocent or retaining them in custody.

The parsimony principle is central to concerns of proportionality, and relies on both retributivism for its moral grounding and utilitarian considerations for its deliberative outcome; in other words, the original architects of a legitimate punitive system would know that crime deserves punishment, but would look to deterrence considerations for determining the proper proportion, because of the three qualifications on human conduct listed above. Ultimately, the needs of the law-abiding set the ceiling for punishment, as Dolovich argues:

If any punishment is to be legitimately imposed, those parties advocating its imposition must demonstrate convincingly, in terms that all could be expected to accept, that this imposition on the security and integrity of targets of punishment is immediately necessary or at least reasonably certain to result in greater protection for the law-abiding.

Though Dolovich doesn't list them specifically, hate crime enhancements, which often carry mandatory minimums, may run afoul of the parsimony principle.

If legislatures are to honor this principle, they must maintain the flexibility to rethink sentences in particular cases, or indeed to rethink the whole legislative approach to punishing certain offenses when the circumstances demand such reevaluation. Of particular concern in this regard are omnibus mandatory sentencing schemes which lump together a range of offenses and prescribe the same minimum sentence for each. Such schemes preclude the possibility for the focused consideration of the characteristics of each offense and the likely deterrent effect of the prescribed punishment which application of the principles demands.

Last, I should emphasize a few things. First, this summary of some of Dolovich's core arguments hardly begins to describe the complexities of her arguments, which is why I've linked to the original. Second, these arguments are Dolovich's, and not Rawls'. Finally, the advantage of a Rawlsian framework is its grounding in democratic principles. Theories such as utilitarianism and retributivism do not always clearly define the role of the state in providing punishment, especially in a state where laws are democratically created and changed. Whether hate crime enhancements meet Dolovitz's ideal is a matter for the affirmative--and negative--to consider.



*Sharp-eyed readers will note that, over at the other post, I originally thought that Rawls wouldn't "come near this resolution." I was partly right: not Rawls, but a Rawlsian, changed my mind.

defining justice in the plea bargaining resolution

The resolution states:

Resolved: In the United States, plea bargaining in exchange for testimony is unjust.

Thus, it's essential to define justice, which I've started elsewhere. Now, I'm going to start collecting professional, philosophically credible definitions. (Add your own, too, in the comments.)

Justice is equal legal liberty for all.
In "Retribution: The Central Aim of Punishment," in the Harvard Journal of Law and Public Policy Fall 2003, Gerard Bradley writes,

[J]ustice requires individuals to accept the pattern of liberty and restraint specified by political authorities. By accepting the established apparatus of political society and by observing its requirements, legal liberty for all is equalized.

Crime attacks justice for the entire community, Bradley writes:

The central wrong in crime, therefore, is not that a criminal causes harm to a specific individual, but that the criminal unfairly usurps liberty…. The criminal’s act of usurpation is equally unfair to everyone else, in that he has gained an undue advantage over those who remain inside the legally required pattern of restraint. Depriving the criminal of this ill-gotten advantage is therefore the central focus of punishment…. The goal of punishment, in short, is the undoing of the criminal’s bold and unjust assertion of his own will. Punishment assures society both that crime does not pay and that observing the law is important; by doing so, it restores fundamental fairness and equality.

When combined with Lippke's analysis, Bradley's definition of justice (as a value) and retribution (as a criterion) forms the framework for a powerful case.

plea bargaining sample case: retribution Aff

A sample affirmative shell for the current plea bargaining resolution.

Value Retributive Justice

As Dr. Tom O'Connor writes,

Retribution is a rationale for the existence and limits of law... [It] answers the question "why punish" by saying that the offender deserves punishment, and as simple as this statement sounds, its underlying meaning contains a couple of important points about morality and law. Retributivism as a theory of punishment requires retribution as a rationale for law. A retributionist assumes that the law exists for a reason -- a moral reason. All crime, even victimless crime, involves a social harm -- a moral harm. In other words, violating the law not only offends against the law of the land, but the moral code of the land.

Criteria: Retribution must provide proportional punishment and appropriate moral censure.

As Richard Lippke writes in "Retributivism and Plea Bargaining," Criminal Justice Ethics,, New York: Summer 2006,

[L]egal punishment is to be understood as an institutionalized form of censure for conduct that is morally blameworthy. Criminal offenders, on this account, have not simply acted in ways that are socially disapproved of or contrary to their own interests, but have acted in ways that are morally unjustified. Either they have invaded the moral rights of others or have threatened or attempted to do so, or they have violated legal rules the enforcement of which usefully coordinate complex interactions among citizens or allocate access to scarce resources in ways that are fair. Legal punishment censures offenders' conduct by imposing losses or deprivations on them proportional to the seriousness of their offenses.

Contention One: Plea bargaining conflicts with proportionality. Again, from Lippke:

[T]he sentence ranges that retributivism supports are premised on the notion that a given type of crime may produce a range of harms, some of which are considerably worse than others, or exhibit different degrees of offender culpability. Yet negotiated pleas seem unlikely to yield sentences that are related in any very systematic way to such factors. Rather, they are more likely to reflect such things as the defense attorney's skill or experience, whether defendants are free on bail or not, or prosecutors' perceptions of the strength of the case against defendants or the political importance of securing their conviction. However, none of these factors, should, if we are concerned with the harm and culpability of offenses, determine the sentences that convicted offenders receive.

Contention Two: Plea bargaining conflicts with moral censure.

a. Haggling over sentences diminishing the meaning of censure. Lippke:

If one can get a knowledgeable, experienced, or well-connected defense lawyer, one can probably get a better deal.... The legal consequences of crime become a complex game of threats, offers, counteroffers, bluffing, and one-upmanship. In such a process, defendants have an interest in admitting as little guilt as possible. Add to this the fact that many socially deprived defendants will already have an external perspective on the criminal law. They will balk at regarding it as providing legitimate norms for their conduct, viewing it instead as merely presenting obstacles or threats to the satisfaction of their desires.... When such defendants do finally plead guilty before a judge after a deal has been reached with prosecutors, it will seem that they are simply playing their parts in a complicated charade that is encouraged and abetted by the criminal justice system.

b. Defendants should cooperate and take full responsibility, rather than negotiating a lesser charge.

It is no use responding to the preceding concern by arguing that some defendants negotiate pleas because they feel remorse for their crimes and wish to get on with their punishments. First, this will probably be true for only a subset of them. And for those of whom it is true, the obvious thing for them to do is to confess to all of their crimes and throw themselves on the mercy of the court, not negotiate over which ones they will be charged with or what sentences they will receive. A willingness to negotiate, or worse, an insistence that the prosecution negotiate, belies genuine remorse and a desire to embrace one's punishment as deserved.

There's much more that could be said, but this gets the gist across. Proceed to tear it apart, y'all.