Abstract
Through the criminal justice system so-called dangerous offenders are, besides the offence that they are being convicted of and sentenced to, also punished for acts that they have not done but that they are believe to be likely to commit in the future. The aim of this paper is to critically discuss whether some adherents of retributivism give a plausible rationale for punishing offenders more harshly if they, all else being equal, by means of predictions are believed to be more dangerous than other offenders. While consequentialism has no problem, at least in principle, with this use of predictions most retributivists have been opponents of punishing offenders on the basis of predictions. How can an offender deserve to be punished for something that he has not done? But some retributivists like Anthony Duff and Stephen Morse have argued in favor of punishing offenders who are considered to be dangerous in the future more harshly than non-dangerous offenders. After having reconstructed their arguments in detail, it will be argued that both Duff’s and Morse’s attempts to give a retributivistic justification have several shortcomings.
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Notes
With the term “violent behavior” I follow the standard use of the term to apply to acts like murder, rape, mayhem and other serious and life threatening attacks.
In 1974, for example, the American Psychological Association (APA) concluded that, when it comes to predictions of violent recidivism, ‘psychologists are not competent to make such judgments’. However, several researchers have argued that over recent decades important progress has been made in the field of violence risk assessments—see, e.g. Leistico et al. 2008). For optimism about creating and using new and more powerful neuro-scientific tools (like brain-imaging) for predicting violent behavior, see, e.g. Nadelhoffer et al. 2010).
For a mainly consequentialist rejection of incapacitating dangerous criminals pre-emptively (see Tonry 2006: 31–32).
See Dimock (2013) for a possible contractarian defense of punishing dangerous offenders more harshly than offenders who are believed to be non-dangerous.
See, for instance, Gottfredson and Gottfredson (1988: 248), who argue that it follows from retributivism that the use of prediction to punish people should be rejected.
The retributivist could of course argue that such offenders should be released from prison but that they should be subject to some kind of non-punitive confinement. For a critical discussion of this approach, see Lippke (2008: 406–413) who strongly doubts that non-punitive confinement is practically possible at all, as confinement against you will is difficult not to conceive of as kind of punishment.
An offender is dangerous, following Duff, if and only if he (1) “persistently cause, or risk causing serious harm to others” and (2) “persistently attacks others” (see Duff 1998: 142). The ‘if and only if’ clause is a little odd here as it does not make room for the rare case that a person can be violently dangerous even though he previously has not previously engaged in any kind of dangerous behavior.
Joel Feinberg was one of the first to develop such a theory in detail—(see Feinberg 1970: Chapter 5).
If you are entitled not to have your right violated, this is clearly different from getting what you deserve. I can be entitled to inherit my parents, but because I have treated them extremely badly one could argue that I do not deserve the inheritance. However, rights could also be taken to be something that you deserve or not independent of any language of entitlement.
As already said, the argument runs over several pages (Duff 1998: 156–162) but what seems to be the core of it is on the pages 160–161.
In order to reconcile the two moral factors that are mentioned before the reconstruction of Duff’s argument, Duff would claim that persistent, serious and violent offenders have deserved to lose their right to be presumed harmless.
Duff needs this premise in order to conclude “… my argument that SSD could be justified only for persistent … serious offenders …” (Duff 1998: 161). Furthermore, it is not clear what Duff means with ‘do display utter and continuing disregard for community values’. In what follow I take ‘display’ here to mean that you act contrary these values (and not only privately express your disagreement with these values for yourself). By ‘community values’ I will just take for granted that it is important values for a liberal society like e.g. self-ownership, property rights, freedom of speech, political and religious freedom, democracy, right to a fair trial and respect for the legal laws of the society in general.
It seems fair to here categorize Duff as a retributivist when he e.g. writes (Duff 1998: 145): “The argument flows from a retributivist conception of punishment as deserved for past crimes: but different versions of retributivism offer different accounts of why, and how, crime deserves or requires punishment. I will focus on the version that von Hirsch and I partly share, which justifies punishment as the communication of deserved censure for past wrongdoing.”
For a critical discussion of whether non-punitive confinement is a real possibility (see e.g. Lippke 2008: 406–413).
The fact that persistent offenders are usually older than non-persistent offenders, and that older offenders are usually less dangerous than younger offenders, can give some support to the claim that some persistent offenders (the old) are less dangerous than some non-persistent offenders (the young). See e.g. Tonry (2006).
Duff could of course argue that non-persistent offenders have a right to be presumed harmless, but, again, such a right might not always seem fair to ascribe to offenders in light of the possibility that some non-persistent offenders may also have displayed utter and continuing disregard for community values and be presumed to be just as dangerous or even more dangerous compared to other persistent offenders.
Cases of multiple offending, like the case with Anders Bering Breivik who on 22 July 2011 committed his first violent crime and killed 77 people in Norway, also speaks in favor of the claim that a non-persistent offender like Breivik (as defined by Duff) just as well might be said to deserve SSD after he has served his sentence of e.g.—as with the case of Breivik—21 years of prison. In his preparation of the attacks which endured several years one could say that he, at least in his mind, displayed utter and continuing disregard for central community values like the right to life even though his was not a persistent offender.
See e.g. “Retributivists who seek to justify any human system of punishment must of course accept that any such system will sometimes in fact mistakenly convict and punish an innocent person …”
However, although Morse argue that it can be theoretically justified to use predictions of dangerousness in order to punish offenders who are believe to be dangerous compared to non-dangerous offenders more harshly, he also believes that an increased use of these predictions with in the criminal law could not be justified as this would result in massive liberty deprivation. See Morse (1996: 115) for this observation.
Davis’ argument in favor of preventive detention in 1996 has a lot in common with Morse’s argument. Davis argues that insofar as persons are dangerous because of reckless endangerment to others the persons deserve preventive detention as they should have controlled their recklessness.
There has been an intense discussion concerning the possibility of a desert-based justification for pre-punishment. See e.g. New (1992) and Statman (1997) who roughly argue that punishing people for crimes that we know they will commit in the future is compatible with the idea that they therfore deserve to be punished. For a critique of this view see Lippke (2008: 388–391), who convincingly argues that we can never with certainty know the future.
References
APA—American Psychological Association. 1974. Report of the task force on the role of psychology in the criminal justice system. American Psychologist 33: 1099–1113.
Dimock, Susan. 2013. Criminalizing dangerousness: How to preventively detain dangerous offenders. Criminal Law and Philosophy. doi:10.1007/s11572-013-9270-5.
Duff, Antony R. 1998. Dangerousness and citizenship. In Fundamentals of sentencing theory, eds. Adrian Ashworth, and M. Wasik, 141–163. Oxford: Oxford University Press.
Duff, Antony R. 2013. Legal punishment. In Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta. US, California: Stanford University, Published by Metaphysics Research Lab, Center for the Study of Language and Information.
Feinberg, Joel. 1970. Doing and deserving. Princeton: Princeton University Press.
Glannon, Walter. 2007. Bioethics and the brain. Oxford: Oxford University Press.
Gottfredson, Don M., and Stephen D. Gottfredson. 1988. Stakes and risks in the prediction of violent criminal behavior. Violence and Victims 3(4): 247–262.
Leistico, A.M.R., et al. 2008. A large-scale meta-analysis relating the Hare measures of psychopathy to antisocial conduct. Law and Human Behavior 32(1): 28–45.
Lippke, Richard. 2008. No easy way out: Dangerous offenders and preventive detention. Law and Philosophy 27: 383–414.
Morris, Noval, and Marc Miller. 1985. Predictions of dangerousness. Crime and Justice 6: 1–50.
Morse, Stephen J. 1996. Blame and danger: An essay on preventive detention. Boston University Law Review 76: 113–155.
Nadelhoffer, T., et al. 2010. Neuroprediction, violence, and the law: Setting the stage. Neuroethics 5: 67–99.
New, Christopher. 1992. Time and punishment. Analysis 52: 35–40.
Statman, Daniel. 1997. The time to punish and the problem of moral luck. Journal of Applied Ethics 14: 129–135.
Tonry, Michael. 2006. Purposes and functions of sentencing. Crime and Justice 34(1): 1–53.
Von Hirsch, A. 1987. Past or future crimes: Deservedness and dangerousness in the sentencing of criminals. New Brunswick: Rutgers University Press.
Acknowledgments
I would especially like to thank Jesper Ryberg, Frey Klem Thomsen, Kasper Lippert-Rasmussen and Rune Klingenberg for valuable comments to earlier versions of this paper. Thanks also to all the participants at the Oxford/Roskilde Neuroethics and Criminal Justice Ethics workshop 10–11 October 2013 for inspiring discussions. Thanks also to the Danish Research Council for financial support.
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Petersen, T.S. (Neuro)predictions, Dangerousness, and Retributivism. J Ethics 18, 137–151 (2014). https://doi.org/10.1007/s10892-014-9167-0
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DOI: https://doi.org/10.1007/s10892-014-9167-0