Abstract
Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one’s conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent’s being blameworthy for an act and their deserving punishment (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to reasonable blaming practices, even if negligence is not culpable, hence not sufficient to ground negative desert. Turning from conceptual inquiry to substantive questions of political morality, it then argues that a faulty actor’s lack of culpability does not render them immune from just punishment, but does significantly limit the severity of punishment that may be inflicted, for punishment should not be disproportionately severe relative to an agent’s culpability in relation to wrongdoing.
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Notes
A random sample of statements that use these varied locutions includes: Herbert Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 109 (strict liability “is unjust because the actor is subjected to the stigma of criminal conviction without being morally blameworthy”); Douglas Husak, Strict Liability, Justice, and Proportionality, in A.P. Simester ed., Appraising Strict Liability 81, 84 (2005) (noting the view that “liability without culpability [i]s especially unjust”); A.P. Simester, Is Strict Liability Always Unjust, in Simester ed., supra, at 21 (“Convicting and punishing those who do not deserve it perpetrates a serious wrong”); Vera Bergelson, Does Fault Matter?, 12 Crim. L. Phil. 375, 384 (2018) (“punishment without fault” is “always unjust”).
R.A. Duff, Punishment, Communication, and Community 11–13 (2001).
Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law ch.3 (2009).
Larry Alexander & Kimberly Kessler Ferzan, Reflections on Crime and Culpability: Problems and Puzzles 3–4 (2018). Alexander and Ferzan cite Michael Moore and Heidi Hurd, Neil Levy, and Jerome Hall as other proponents of this position. Id. at 3 n.10.
Alexander and Ferzan recognize that this premise might require some form of epistemic qualifier—e.g., that it is unjust to punish somebody whom you do not genuinely believe to deserve punishment. See, e.g., Alexander & Ferzan, supra note 3, at 8, 12–13. To simplify discussion, I omit such qualifiers throughout.
Throughout, interpret “act” broadly to include, e.g., omissions or willings, as you wish.
I realize that this argument is not valid as formulated. That’s easily fixed with an unless clause and an additional premise, but I hope you’ll permit me this simplification to reduce clutter.
Mitchell N. Berman, “Blameworthiness, Desert, and Luck” (unpublished ms., dated December 30, 2020).
Alexander and Ferzan do not reject this claim if read strictly. As threshold deontologists, see Alexander & Ferzan, supra note 4, at 119 & n.40, they would allow that knowing punishment of the merely negligent—like, for that matter, knowing punishment of the not-even negligent—is morally permissible if the costs of not doing so are sufficiently great. Let’s put that aside. I’m discussing cases below the “threshold,” wherever that may lie.
H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 11 (1968).
Although they had previously described their view of culpability as a function of “risks and reasons,” Alexander and Ferzan caution that that is a potentially misleading formulation for what is a sharply belief-focused account. Alexander & Ferzan, supra note 4, at 2–3.
For ease of exposition, I will drop this qualifying parenthetical going forward, and speak of whether an agent deserves punishment. But that will be shorthand for “deserves to be punished, or to suffer, etc.” On the difference between these retributive desert objects, see Mitchell N. Berman, Two Kinds of Retributivism, in R.A. Duff & Stuart P. Green eds., Philosophical Foundations of Criminal Law 433 (2011).
My current view is that a wrongdoer deserves to experience their wrongdoing as personally costly to them or that, as Gideon Rosen puts it, a wrongdoer deserves to “suffer in recognizing what she has done.” Gideon Rosen, The Alethic Conception of Moral Responsibility, in Randolph Clarke, Michael McKenna & Angela M. Smith, The Nature of Moral Responsibility: New Essays 65, 86 (2015). Regardless of its precise formulation, the key insight is to conceptualize the retributive desert object as a downward departure from some existing or expected baseline of agential happiness or wellbeing, and not as some absolute or objective level of wellbeing. See Mitchell N. Berman, Rehabilitating Retributivism, 32 L. & Phil. 83, 87–88 (2013). A wrongdoer deserves to suffer in recognition, or deserves to experience their wrongdoing as personally costly, even if their level of wellbeing, prior to wrongdoing, were unjustly or unfairly low (which is not to prejudge whether the magnitude of deserved diminution in welfare is sensitive to pre-wrongdoing levels of wellbeing).
Michael McKenna, Directed Blame and Conversation, in Justin D. Coates & Neal A. Tognazzini, Blame: Its Nature and Norms 119, 119 (2013).
Some readers have objected on the supposed semantic basis that deservingness of being blamed is baked into the word “blameworthy.” But I think that reads the suffix “-worthy” for more than it need be worth. While sometimes defined as “deserving of,” it can also mean “suitable or safe for.” That a vessel is seaworthy does not entail that it deserves to be put to sea in any favoring sense—either that there is intrinsic value in its being put to sea or that someone ought, or has reason, to put it to sea. It entails only that, if you have reason to put the vessel to sea, you can do so without committing a certain type of misstep. Likewise, for A to be blameworthy can mean only that at least some among a variety of ways of treating A that belong to the constellation of blaming behaviors—modes of treatment that would otherwise be unsuitable or inappropriate—are rendered suitable or apt. There is no agent, B, of whom it is true, simply in virtue of the fact that A is blameworthy, that B has even a (pro tanto) reason to blame A, just as there is no agent, B, of whom it is true, simply in virtue of the fact that a craft is seaworthy, that B has a (pro tanto) reason to put the craft to sea. (This is not to prejudge whether B’s reasons to engage in blaming activity could be partially grounded in the facts that ground the fact of A’s blameworthiness.) In both cases, whether B should engage in the activity at issue (blaming A, putting the craft to sea) will depend upon reasons that are not grounded in the fact of A’s blameworthiness, or of the craft’s seaworthiness, as the case may be. This is not an argument that the semantics require the interpretation of blameworthiness that I offer. I’m observing only that semantics don’t militate against an interpretation of blameworthiness that has greater theoretical virtues—namely, enabling us to track two distinct normative functions that we should want and expect our normative concepts to serve.
Mark Greenberg, The Moral Impact Theory of Law, 123 Yale L.J. 1288, 1308 (2014).
Philosophers debate whether A’s φing grounds a new duty or activates the antecedent of an existing conditional duty to which A was already subject. For my limited purposes, I believe and hope that we needn’t choose between wide-scope and narrow-scope construals of the relevant duties.
Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (2011).
Youngjae Lee, Recidivism as Omission: A Relational Account, 87 Texas L. Rev. 571 (2009).
See, e.g., Christopher Heath Wellman, The Rights Forfeiture Theory of Punishment, 122 Ethics 371 (2012).
See, e.g., Leo Zaibert, Rethinking Punishment (2018).
I aim to be agnostic regarding which normative concept, good and reason, is passing the buck to the other.
This is not to say that the treatment at issue is rendered permissible all things considered; it’s to say that a certain type of especially salient and forceful barrier to the treatment is erased, canceled, or overridden.
See, e.g., Tadros, supra note 17. Anti-retributivism encompasses a broad array of attitudes about desert and conceptions of its workings. Not all anti-retributivists reject negative desert tout court.
See, e.g., Derk Pereboom, A Notion of Moral Responsibility Immune to the Threat from Causal Determinism, in Clarke, McKenna & Smith, supra note 12, at 281.
Alexander and Ferzan consistently treat desert as serving both favoring and liability functions. See, e.g., Alexander & Ferzan, supra note 3, at 6–7 (“In our view, it is the defendant’s decision to violate society’s norms regarding the proper concern due to the interests of others that establishes the negative desert that in turn can both justify and limit the imposition of punishment.”) That’s the assumption that lets them move from the claim that desert requires culpability to the conclusion that liability requires culpability.
It could be otherwise. Many thinkers hold that it is part of the nature of punishment that it express moral condemnation, in which case an act of punishment is fitting or successful only when the punishing authorities believe the agent condemnable, which requires culpability (or in any event something more than the mere fault that licenses non-condemnatory forms of blame). I agree that the standard case of punishment involves expression of condemnation. But it doesn’t follow that every sanction that an institution of criminal punishment inflicts must be condemnatory or must presuppose that the patient on whom the sanction be inflicted is condemnation-liable. And I deny those latter claims. But if you think that the infliction of disagreeable consequences with the intention that they be experienced as disagreeable does not count as punishment unless married to moral condemnation, call such non-condemnatory inflictions “shmunishment.” The question addressed in this section is whether shmunishment requires culpability.
John Gardner, The Gist of Excuses, 1 Buffalo Crim. L. Rev. 575, 578 (1998).
Id. at 594.
Alexander & Ferzan, supra note 3, at 3.
Alexander & Ferzan, supra note 4, at 107.
Id.
Id. at 106.
Id. at 107.
See Berman, supra note 8, at 13–16 (distinguishing between the severity of blame to which one is liable, and the extent to which one is liable to that blame).
I’m assuming that punishment severity is measured in (something like) “hardness of treatment.” I don’t deny that it might be irrational or pointlessly cruel (or misguided in some other profound way) to condemn somebody severely for nonculpable actions.
I introduce this distinction in Mitchell N. Berman, Proportionality, Constraint, and Culpability, __ Crim. L. Phil. __ (forthcoming). Alexander makes clear that he endorses a bracket principle of proportionality in Larry Alexander, Proportionality’s Function, __ Crim. L. Phil. __ (forthcoming).
On the crucial distinction in normative theory between decisive and contributory notions see Errol Lord & Barry Maguire, An Opinionated Guide to the Weight of Reasons, in Errol Lord & Barry Maguire eds., Weighing Reasons 3 (2016). For my argument that Ronald Dworkin’s famous but somewhat obscure rules/principles distinction (see Ronald Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967), reprinted and revised as The Model of Rules I, in Ronald Dworkin, Taking Rights Seriously ch. 2 (1977)) is best understood as anticipating the decisive/contributory distinction, see Mitchell N. Berman, “Toward Principled Positivism: Revisiting the Start of the Hart-Dworkin Debate” (ms., dated May 24, 2020).
I examine this nettlesome question in Berman, supra note 8.
Alexander & Ferzan, supra note 4, at 2.
Alexander & Ferzan, supra note 3, at 41.
In my judgment, Alexander and Ferzan’s contention that an agent who intends harm to others does not engage in a culpable action prior to the last act that (as the agent views it) unleashes a risk of harm to a legal protected interest, id. at ch.5, is unsound. Take an example I offered the authors previously: D is considering traveling from Philly to L.A. to kill D’s nemesis, V. E advises D not to kill V. E specifically urges D not to board the plane. E says “if you board that plane, you might or might not choose to (try to) kill V; if you don’t get on that plane, you won’t have the opportunity to kill V.” D replies: “You speak the truth.” D then boards the plane. Alexander & Ferzan, supra note 4, at 38 & n.58. To be sure, “actors can still change their minds, even after they have taken substantial steps.” But this truth is nowhere near the “decisive objection” that Alexander and Ferzan take it to be. Alexander & Ferzan, supra note 3, at 212. For while actors can change their minds, and can be aware of that fact, they can also be aware of the fact that they might not change their minds. That’s all that’s needed to establish that D is culpable when boarding the plane because their willed bodily movement subjectively increases the risk of harm to V.
Or does it? Alexander and Ferzan next object that “one cannot regard one’s own future conduct that will be fully under the control of one’s reason and will as a risk that one’s present conduct is imposing.” Id. at 214. But that is false. One can regard one’s future conduct as a risk, and we do it all the time. Somebody who believes that a little ice cream would be good but that a lot of ice cream would be bad sometimes doesn’t buy ice cream at the market because they foresee a risk that they’ll later eat a lot rather than a little. The bottom line is this. While I wouldn’t exclude the possibility that Alexander and Ferzan could marshal colorable arguments of political morality for the proposition that a liberal state should not punish persons for incomplete attempts, their contention that incomplete attempts are necessarily not culpable is incorrect on their own theory of culpability.
Having pointed toward a broader notion of culpability than Alexander and Ferzan’s beliefs-only account, let me acknowledge that even they depart from that account in perhaps two respects. First, they do allow, late in their exposition, that “culpability includes the quality of the actor’s decision making. We contend that when an actor’s decision making is degraded, the actor is less culpable. Conversely, in some instances, enhanced decision-making quality can aggravate culpability.” Id. at 256 (citing Kimberly Kessler Ferzan, Holistic Culpability, 28 Cardozo L. Rev. 2523, 2534 (2007)). Second, in a sole-authored article contemporaneous with Crime and Culpability, Ferzan acknowledges that “[a] second constitutive aspect of an actor’s culpability is her psychological feeling about the harm she is imposing,” and cautions that “while we can describe risks and reasons in mechanical terms, we should not ignore the affective aspects of practical reasoning.” Ferzan, Holistic Culpability, supra, at 2534. I am not entirely sure what to make of these passages. It’s not clear to me what counts in decision-making “quality” for Alexander and Ferzan and, just as importantly, what doesn’t. Furthermore, as far as I can tell, Alexander and Ferzan do ignore affective aspects of practical reasoning, and an actor’s “feeling” about the harms their action risks is actually no part of their official account of the constituents of culpability.
My possible misunderstandings aside, what is clear is that to the extent their theory of culpability really does allow culpability to be sensitive to the quality of an agent’s decision making or to their affective states, it is no longer the austere beliefs-only theory that Alexander and Ferzan advertise. Degraded or enhanced decision making are not themselves beliefs. If characteristics regarding the manner in which the beliefs that matter are produced are independent determinants of the agent’s culpability, then it is no longer the case that culpability is a product only of the agent’s beliefs.
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I am grateful to Massimo Renzo for inviting my contribution to this symposium on Larry Alexander and Kimberly Kessler Ferzan, Reflections on Crime and Culpability: Problems and Puzzles (2018), and to Larry and Kim, both for their challenging and entertaining book and for very helpful conversations and suggestions on this paper.
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Berman, M.N. Negligence and Culpability: Reflections on Alexander and Ferzan. Criminal Law, Philosophy 16, 455–468 (2022). https://doi.org/10.1007/s11572-021-09583-8
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DOI: https://doi.org/10.1007/s11572-021-09583-8