Abstract
David Brink’s book Fair Opportunity & Responsibility is a meticulously argued and ultimately convincing book that carefully articulates the requirements for criminal guilt and punishment. As the title suggests, Brink argues that only one who has a fair opportunity to be law-abiding ought to be held responsible when they commit a crime. It is unfair to hold a person responsible if they lack abilities necessary to legal agency at the time of a wrongful act, or if these abilities are severely compromised. In this essay I focus on Brink’s handling of structural injustice and the way it can impact our responsibility practices. Structural injustice is a serious and pervasive problem in the U.S., and it is closely related to crime rates. I argue that structural injustice can ground a partial excuse based on compromised normative competence. This is a possibility that Brink does not explore. Marginalization can compromise one’s ability to make and follow normative judgments in keeping with one’s larger society and the criminal law; and what makes some marginalized persons less culpable is that their ability to recognize and respond to moral and legal reasons is compromised compared to those that are not marginalized.
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Notes
Although it seems this might depend on who was stolen from. If a person stole food from an equally starving neighbor, the act may still seem morally wrongful despite the thief’s marginalization.
It may be that if conditions were severe enough – say, if the state were perpetuating genocide against a minority and the crime was committed by a member of that minority – then the state’s moral standing to apply criminal blame and punishment would be diminished.
This can seem a bit confusing, as often we think of an excuse as relevant to normative competence; but Brink indicates one might also have diminished culpability based upon a lack of situational control.
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Sifferd, K. How does Structural Injustice Impact Criminal Responsibility?. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09697-1
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DOI: https://doi.org/10.1007/s11572-023-09697-1