Several writers have argued that the state lacks the moral standing to hold socially deprived offenders responsible for their crimes because the state would be hypocritical in doing so. Yet the state is not disposed to make an unfair exception of itself for committing the same sorts of crimes as socially deprived offenders, so it is unclear that the state is truly hypocritical. Nevertheless, the state is disposed to inconsistently hold its citizens responsible, blaming or punishing socially deprived offenders more often or more harshly than other offenders, even when the crimes are the same. The state’s stable disposition to inconsistently hold offenders responsible undermines its standing to hold offenders responsible for the same reasons that hypocrisy undermines standing; instead of making an unfair exception of itself, the state makes an unfair exception of others. Strikingly, this means that the state lacks the standing to hold anyone responsible for a crime for which it is unfairly disposed to hold citizens responsible inconsistently, not just socially deprived offenders. Thus, it is even more urgent that the state regain its moral standing by working toward a justice system that holds offenders responsible consistently.
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Dylan Scott and Alvin Chang, “The Republican Tax Bill Will Exacerbate Income Inequality in America.” Vox, December 4, 2017, https://www.vox.com/policy-and-politics/2017/12/2/16720952/senate-tax-bill-inequality.
Duff thinks that the state might lack the standing even to call SDOs to court (see Duff 2010). It is unclear to me, however, whether calling individuals to court is blaming them rather than an attempt to determine if they are blameworthy. Notably, one can punish individuals without blaming them (and vice versa), though the two might often coincide (see McKenna 2012: 134–146). I return to the nature of this connection between holding responsible and punishing below in Sect. 4.
Tadros (2009) and Watson (2015) also think that the state is complicit in the crimes of SDOs—at least the crimes of impoverished offenders in the US, given the state’s economic and social policies that perpetuate a wealth gap. In fact, they hold that complicity is the stronger standing-undermining reason. I set aside the argument about complicity here to focus on hypocrisy, but return to this point in Sect. 4.
Although some (like Lippke 2003) argue that SDOs bear mitigated responsibility due to diminished capacities, I will not explore that possibility here.
Alternatively, one could think that responsibility comes in degrees, and the degree of responsibility determines the degree of blameworthiness. Supposing that responsibility is binary, however, the only way to diminish the blameworthiness of such offenders is to claim that their offenses are less wrong than the offenses of others. See Fritz (2014) for an argument that responsibility for wrongdoing entails blameworthiness in this way.
Duff argues for three preconditions of punishment that must be met before we can even engage in the practice of punishment itself. Standing is only one such precondition. The first precondition is that the individual be morally bound by the laws of the state. Duff argues that in cases of “serious, persisting, and systematic injustice,” certain individuals are “excluded from participation in the political life of the community” (2001: 183). Some, like Watson, seem to conflate this first precondition with the second precondition on standing. Perhaps race and class relations in the US are so problematic that “the contemporary urban poor in the US are denied equality of citizenship in a way that undercuts the grounds for their proper allegiance to the authority of the criminal law” (Watson 2015: 171). However, I will suppose that in the US we have not yet crossed this threshold in violation of Duff’s first precondition. If we have, then the state cannot hold SDOs accountable because such offenders are not even obligated to follow the law. In this paper, however, I assume that SDOs are obligated to the follow the law and yet the state lacks the standing to hold them responsible for certain offenses. I will also suppose that Duff’s third precondition is satisfied; this precondition requires that the individual be “capable of understanding and responding to the charge brought against her” (Duff 2001: 188).
Given what Holroyd says, it is somewhat puzzling that she writes that, even if the state loses its standing to hold someone responsible for theft, “we should surely not accept the general claim that the state loses its standing” (2010: 87). Individuals (and states) cannot lose their standing simpliciter—especially if standing is a right—but only one’s standing to do X. Holroyd might mean instead that the state loses its right to hold anyone responsible, but, as far as I am aware, no one advocates such an extreme position.
It is not clear whether Duff is willing to accept that the state lacks the standing to blame SDOs for all offenses. He recognizes the intuition that, even if the state lacks the standing to blame an offender for stealing, one might still think that it has the standing to blame an offender for murder or rape, “since his life and sexual integrity have not been attacked by the community” (2001: 188). Yet he suggests that the state may have failed to respect these values in their dealings with socially disadvantaged citizens: “If, for instance, the police or the courts have not taken criminal attacks on members of this disadvantaged group seriously, this failure undermines their standing to call members of this group to answer for attacks that they commit, since it shows that the community does not treat the members of the group as fully sharing in those values” (2001: 188). Even if Duff accepts that the state lacks the standing to hold SDOs responsible for all crimes, I take it that Duff’s reasoning is not that some very general value has been violated, but that the state has also violated other values of bodily and sexual integrity.
For the full original argument and defense, see Fritz and Miller (2018: 125–127).
Notice that Tadros stops his explanation around the premise that the hypocrite rejects the impartiality of morality or the equality of persons (2009: 397). Duff offers a related explanation for why individual hypocrisy might undermine one’s standing to blame: the hypocritical blamer “denies the fellowship on which her criticism depends for its legitimacy” (2010: 128). The theme of denying, in one’s blame, that which grounds the legitimacy of that blame, is similar to the argument Miller and I offer. I prefer our explanation because standing is a matter of rights, not fellowship, and because, as I explain below, this explanation is more powerful and can avoid the objections Matravers raises to Duff’s argument.
The way that I use “policy” is perhaps broader than is standard; I am concerned not only with laws passed by Congress, but with statutes, legal precedent, and departmental policies and procedures.
Joe Palazzalo, “Racial Gap in Men’s Sentencing,” Wall Street Journal, February 14, 2013, https://www.wsj.com/articles/SB10001424127887324432004578304463789858002.
See Josh Salman, Emily Le Coz, and Elizabeth Johnson, “Bias on the Bench: Florida’s Broken Sentencing System,” Sarasota Herald Tribune, 2016, http://projects.heraldtribune.com/bias/sentencing for an interesting case study of Florida’s inconsistency in holding black and white offenders responsible for the same crime. There is also a significant inconsistency regarding how black and white offenders are treated with respect to drug crimes such as cannabis possession (Bunting et al. 2013; Motivans 2017). Because I am interested in crimes for which the state has the authority to hold its citizens responsible, however, and because it is unclear that the state does have the authority to hold citizens responsible for such drug crimes, I set them aside.
Andrew Kahn and Chris Kirk, “What It’s Like to Be Black in the Criminal Justice System,” Slate, August 9, 2015, http://www.slate.com/articles/news_and_politics/crime/2015/08/racial_disparities_in_the_criminal_justice_system_eight_charts_illustrating.html. See Alexander (2012) for details of many more inconsistencies and injustices—especially Chapter 3—as well as Poe-Yamagata and Jones (2000).
Of course, the state has additional rights and responsibilities in virtue of its role as the state, just as individual persons have additional rights and responsibilities in virtue of their roles (e.g., parent, employee, etc.). While the moral equality of persons grants everyone the right to hold others responsible by blaming them, it does not grant everyone the right to punish, incarcerate, or fine others. These are rights the state alone has. Thus, my conclusion here is restricted to the state’s right to hold responsible in the sense dictated above, as blaming. As I explain below in Sect. 4, however, in punishing, the state typically holds responsible in this sense. Thanks to an anonymous referee for encouraging me to clarify this point.
It is worth pointing out that Matravers might gain some intuitive pull by focusing on the ability of the individuals to judge: “Being late yourself does not bar you from being a good and impartial judge of others’ pleas of mitigation or excuse for lateness” (2006: 324). While this is true, it is beside the point. The question is not whether these individuals are good judges or their judgments are accurate; the question is whether they have a right to make (or at least express) those judgments.
To be more precise, Duff’s argument seems to be that the courts lack the standing to hold certain offenders responsible for their offenses given the moral record of the citizens of the polity, as the courts act on behalf of these citizens. Chau (2012) has argued that one may avoid Duff’s conclusion by seeing the courts as acting only on behalf the just citizens of the polity rather than the whole polity. Yet Howard (2013) argues compellingly that this approach cannot work, as a democratic society can only be understood as acting on behalf of some subset of its citizens when democracy itself has broken down in that society. In such a situation, the state would lack the legitimate authority to issue laws, and so Duff’s first precondition, that the individuals be bound by the laws of the state, would fail to be met (see n. 6 above).
Tadros worries that the state’s hypocrisy and complicity might undermine its standing to blame wealthy offenders as well (2009: 409).
Josh Dawsey and Andrea Peterson, “Hundreds of White House Emails Sent to Third Kushner Family Account,” Politico, October 2, 2017, https://www.politico.com/story/2017/10/02/jared-kushner-email-account-white-house-243389.
Geoff Earle, “Trump’s Top Aides Having Private Emails is the ‘Height of Hypocrisy’ Says Hillary Clinton,” Daily Mail, September 26, 2017, http://www.dailymail.co.uk/news/article-4922038/Clinton-Trump-aides-private-email-use-hypocritical.html.
The Daily Show, “Kathryn Miles,” directed by Paul Pennolino, written by Zhubin Parang et al., Comedy Central Broadcasting, September 26, 2017.
I assume here that hypocrisy involves making an exception of oneself. If that is incorrect and hypocrisy is broader than this, then the state is hypocritical even though it does not make an exception of itself, because it unfairly holds groups of citizens responsible differentially. The state’s standing is still compromised for the same reason.
I am grateful to an anonymous referee for suggesting this possibility and encouraging me to clarify this point.
Model Penal Code §2.12(2) (1985), emphasis mine.
Though it is theoretically possible for the state to dissociate itself from moral condemnation in criminal law, this would also seem to significantly blur the distinction between criminal and civil law and would “undercut the criminal law’s moral credibility” (Robinson 1993: 698). Robinson also provides powerful practical reasons against such dissociation: “Moral condemnation is an inexpensive yet powerful form of deterrent threat. It demands none of the costs associated with imprisonment or even supervised probation; yet, for many persons, it is a sanction to be very much avoided. This marvelously cost-efficient sanction is available, however, only if the system retains its moral credibility” (1993: 707). Thus, this theoretical possibility of the state punishing offenders without holding them responsible seems problematic in practice.
Another relevant consideration is mercy. Tadros suggests that mercy is a consideration on standing rather than overall appropriateness (2009: 395). But, on my view, this is incorrect. Mercy does not take away one’s right to hold responsible, which is the domain of standing. Instead, one may have the right to hold responsible and yet mercy would dictate that it is nevertheless inappropriate to do so in this instance.
“Complicity” is an unfortunate term with a stronger connotation than is probably warranted, given that the responsibility of the state is less direct than would normally be read from the term. Watson makes this point and credits Duff with it originally (Watson 2015: 179).
Alternatively, as I mention above, the state might attempt to dissociate punishment from blame altogether, though this route faces significant problems.
Again, some of these suggestions seem to concern Duff’s first precondition on punishment rather than his second precondition dealing with moral standing, but they are nevertheless important if state punishment is to be justified overall.
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I am grateful to Dan Miller, Steve McFarlane, and Simone Gubler for invaluable conversations and comments on previous drafts of this paper. Thanks also to an anonymous referee for helpful suggestions.
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Fritz, K.G. Hypocrisy, Inconsistency, and the Moral Standing of the State. Criminal Law, Philosophy 13, 309–327 (2019). https://doi.org/10.1007/s11572-018-9472-y
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