Abstract
Contemporary criminal justice systems are extraordinarily unfair. Focusing on Hyman Gross’s Crimes and Punishment: A Concise Moral Critique, however, I identify ways in which scholarly criticisms of these criminal justice systems tend to miss their target. In particular, I argue against the assumption that in order to criticize these criminal justice systems we need to cast doubt on the very practice of blaming people and on the notion of desert, or that we need to reject wholesale retributive rationales for punishment. Quite the contrary: an important reason why contemporary criminal justice systems are unfair is that they punish many people undeservedly.
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Notes
One would have thought that Gross would use “remedy” for retributivist justifications, and “improve” for utilitarian justifications. But he does not: sometimes he uses “remedial” for both (Gross 2012, 28 ff.).
Not an easy thing to do—but no matter.
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At times, Gross seems to weaken considerably his staunch defense of the innateness of human rights: “rights, after all, are what we make of them” (Gross 2012, 24).
See Quinton 1954.
See Zaibert 2012.
Three consecutive chapters “Criminal Conduct and its Culpability,” “More about Culpability,” and “Psychoculpability” contain the bulk of Gross’s attack on culpability—although the attack also appears in more piecemeal fashion elsewhere in the book.
For a discussion as to how simply we should describe these cases, see Zaibert 2011a.
For more on culpability, and on the normative importance of intentions, see Zaibert 2005.
In a sense, I object to it too—but only if by this locution we understand something akin to legal moralism. As a liberal, I am opposed to criminalizing all that is immoral and simply because it is immoral. See, for example, Zaibert 2011c. The discussion here, however, is not about moralism (it is not about the opposition between moralism and liberalism), but about whether the criminal law could operate under rules and principles which are themselves disconnected from morality. .
Of course, there are those who believe that it is always wrong to make people suffer (see Tadros 2011), or that the view that those who have done wrong should suffer is morally repugnant (Scanlon 2013), or even that no one could ever deserve to suffer (Parfit 2011). I won’t address this issue here. But I will note that, on pain of incoherence, these views better be predicated on the moral wrongfulness of suffering quite apart from political considerations.
See Ghali 2008. I will also ignore what strikes me as a major difference between punishment and slavery which Gross appears to overlook: as we saw above, Gross thinks that the total abolition of punishment is neither “a prospect to be feared nor a cause to be devoted to”. In contrast, surely Gross agrees with me that the total abolition of slavery is a prospect to be embraced and a cause worth devoting oneself to.
For current purposes, a “heavy heart” and a “clear conscience” are incompatible. For more on the dilemmatic nature of punishment (and on punishment’s connection to dirty hands problems), see Zaibert 2010.
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Zaibert, L. Of Normal Human Sympathies and Clear Consciences: Comments on Hyman Gross’s Crime and Punishment: A Concise Moral Critique . Criminal Law, Philosophy 10, 91–108 (2016). https://doi.org/10.1007/s11572-014-9302-9
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DOI: https://doi.org/10.1007/s11572-014-9302-9