Abstract
This article addresses the theoretical difficulty of justifying the use of penal coercion in circumstances of marked, unjustified social inequality. The intuitive belief behind the text is that in such a context—that of an indecent State—justifying penal coercion becomes very problematic, particularly when directed against the most disfavored members of society.
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Notes
Herein, I assume that there is no more important discussion in current political philosophy than that of the legitimate use of the state’s coercive power. Such reflection is central to some of the primary works produced by the discipline over the past century (Rawls 1971).
Of course, there is no uncontroversial way to define what a situation of profound social injustice is. However, we could make some provisional progress in this discussion if we agreed (as I will propose that we should) to concentrate our attention on some paradigmatic cases, such as those that appear when large sections of the population live, and continue to live, in conditions of extreme poverty (here we can use, for instance, the international poverty line as a benchmark), or are permanently subject to open racial discrimination, by the State. Some useful approaches to issues of social justice are found in Dréze and Sen (1991), Nussbaum (2000), Pogge (2001), (2003).
Duff adopted this perspective in later years after having spent a long period resisting, according to his own account, taking such a step. See Duff (2001), ch 5.3.
According to Murphy: “[c]riminals typically are not members of a shared community of values with their gaolers; they suffer from what Marx calls alienation. And they certainly would be hard pressed to name the benefits for which they are supposed to owe obedience” (1973, 240).
In his opinion, “[w]e cannot say, at least of many criminals, that they have wilfully seized for themselves an unfair advantage by their crimes.” In many cases, punishments cannot be seen as a way to “restore a fair balance of benefits and burdens, if no such balance existed in the first place” (Duff 1986, 229).
According to Jeffrey Reiman, for example, “Our prisoners are not a cross-section of America. They are considerably poorer and considerably less likely to be employed than the rest of Americans. Moreover, they are also less educated, which is to say less in possession of the mans to improve their sorry situations. As of 1999, 41% of US prison inmates had no graduated from high school, compared to 20% of the US adult population. In 2002, 44% of jail inmates were not high school graduates compared with 16% of the general population” (Reiman 2007, 20). Also, for the sociologist Barbara Hudson “prisons are disproportionately filled by the economically deprived, by disadvantaged…groups, by the ill-educated, and by the mentally disordered” (Hudson 2000, 190). See, also, Carlen (1989), on inequality and sentencing; Cook and Hudson (1993), on racism and prisons; and Tonry (1994b and 1995), on racial disproportion in US prisons. A good review of the literature on the issue, in McCoy (1997).
On this occasion the “long chain of abuses” committed by the English authorities in violation of the basic rights of North Americans were listed together with the expression of the colonies’ fundamental right to self-government. The abuses, it was held, deprived the British government of its legal authority over the new territories.
In this paper my interest is shedding light on the principle that is at work, as I understand it, rather than attempting to put forward a categorical formula that would determine when a state can legitimately claim it is making the due effort necessary to dispense it from the justificatory burdens that we have just assigned to it. Whatever the case may be, I would still say that many of our countries are characterized by serious, widespread conditions of inequality that includes millions of people who live in abject poverty, a broad middle class, vast networks of concentrated wealth, and states that are far from bankrupt. In this context, the state is in a position to demonstrate its willingness to turn away from its complicit acceptance of situations of such grave injustice.
More radically, part of the most important penal theory of our time defends positions in close proximity to the so-called “penal minimalism,” which seeks to take greater account of the commitment to the spirit of ultima ratio (Ferrajoli 2008; Zaffaroni 2006). It is my understanding, however, that this interesting initiative is open to serious objections (we will explore some of them below).
For a meaningful critical reading of political obligation, see Simmons (1996).
When the most severe discrimination was exercised against African-Americans, and they were legally blocked from entering the same facilities that were constructed for whites. This differentiated regime was deemed constitutional by the US Supreme Court in 1896 in Plessy v. Ferguson, 163 US 537.
In the end, Ferrajoli sees his justificatory project as “historically and sociologically” relative. For him, “the severity and quantity of sentences must be adapted to the severity and quantity of violence expressed in society and in the measure it is socially intolerable” (ibid. 344). He concludes, “in this respect contempory society is undoubtedly less violent” than previous societies.
I want to underscore this aspect of the justification Ferrajoli gives for sentences, given that he himself admits—in the section of his book dedicated to justifying sentences—that “the competence of criminal law to effectively satisfy [its primary objective, that of deterring crime] is dubious… [given] the complex social, psychological, and cultural causes of crimes, which certainly cannot be deactivated by the mere fear of imprisonment” (ibid., 334).
In a similar way, the Argentinean Professor and Supreme Court Justice Raul Zaffaroni observes that, if judges are not willing to impose minimum doses of penal repression, “the remaining agencies and especially the formidable propaganda apparatus of the criminal system along with its capacity to distort reality… would take it upon themselves to anhilate the agency (of the accused in the case) and their legitimate attempts to limit such actions, taking aim at their delegitimized use of power and threatening the entire legal enterprise to limit violence” (Zaffaroni 2003; also Zaffaroni 2006).
Ferrajoli actually presents garantismo penal as the underside of “political democracy.” If the link Ferrajoli sees between neopunitivism and majority rule is real, he would have stronger grounds for his argument. The nexus alleged, however, has at least two serious problems. In the first place, Ferrajoli does not offer any empirical evidence for his argument. It could well be that the connection between majoritarianism and neopunitivism is more precarious, or more complex, or less unidirectional than he alleges. However, and secondly, there are solid empirical studies that undermine his claims and that demonstrate, for example, that major popular interventions into the domains of penal policy and democratic deliberation of the matter do not necessarily result in support for ever more punitive policies, but rather the opposite. In any case—and conceding assumptions that I do not hold, namely the problematic nature of those studies—what is clear is that Ferrajoli cannot maintain his defense of penal minimalism using only the arguments he has put forward; it fails in terms of empirical bases and theoretical foundation.
An enlightening discussion of the subject can be found in Hudson (1995), p. 68.
See Posner and Vermeule (2007).
In 1973, and through his famous dissenting opinion in United States v. Alexander (471 F. 2nd. 923, 957’65 (D.C. Cir. 1973, Bazelon, C.J., dissenting) Judge Bazelon, from the D.C. Circuit Court of Appeals, suggested the possibility that extreme poverty might give rise a defense for the accused. Notably, in that opinion Judge Bazelon took into consideration the defendant’s “rotten social background” and maintained that the trial judge failed in instructing the jury to disregard the testimony about defendant’s social and economic background. The case involved two black defendants who murdered two white victims, one of them had shouted to one of them “black bastard.” One of the accused reported, in his defense, that he had grown up in conditions of extreme poverty and that he was subjected to racist treatment, learning to fear and hate white people. The psychiatrist supported this view, saying that the offender suffered from an “emotional illness” (Delgado 1985). He also affirmed that the defendant “was denied any meaningful choice when the racial insult triggered the explosion in the restaurant.”
Among these, the objections presented by the well-known criminal theorist Michael Moore stand out. According to Moore, approaches such as the one proposed by Bazelon imply treating members of the disadvantaged sectors “as less than human” (Moore 1985). Moore maintains, furthermore, that this estimation of the worst-off members of society normally implies “elitism and condescension.” See, however, Tonry (1995, 145).
Regarding the difference between justification and excuses, see Fletcher (1978).
There is an important debate about whether these justifications or excuses only cover those who are directly offended by the state, or also applies to those who act on their behalf, (reasonably) considering themselves offended by the state’s disrespectful attitude.
Naturally, people whose intention is preserving the authority of an indecent state in order to continue employing violence will tend to adopt very light standards to determine when the state has begun to modify its behaviors towards more decent ones. To guard against this attitude, for the time being, I would only ask that the criteria for what qualifies the state as “no longer indecent” not be trivial.
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Gargarella, R. Penal Coercion in Contexts of Social Injustice. Criminal Law, Philosophy 5, 21–38 (2011). https://doi.org/10.1007/s11572-010-9107-4
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DOI: https://doi.org/10.1007/s11572-010-9107-4