Punishing Wrongs from the Distant Past

Law and Philosophy https://doi.org/10.1007/s10982-019-09352-8 Ó The Author(s) 2019 THOMAS DOUGLAS PUNISHING WRONGS FROM THE DISTANT PAST (Accepted 4 March 2019) ABSTRACT. On a Parfit-inspired account of culpability, as the psychological connections between a person’s younger self and older self weaken, the older self’s culpability for a wrong committed by the younger self diminishes. Suppose we accept this account and also accept a culpability-based upper limit on punishment severity. On this combination of views, we seem forced to conclude that perpetrators of distant past wrongs should either receive discounted punishments or be exempted from punishment entirely. This article develops a strategy for resisting this conclusion. I propose that, even if the perpetrators of distant past wrongs cannot permissibly be punished for the original wrongs, in typical cases they can permissibly be punished for their ongoing and iterated failures to rectify earlier wrongs. Having set out this proposal, I defend it against three objections, before exploring how much punishment it can justify. Oskar Gröning worked as an SS administrator in the Auschwitz extermination camp during the Second World War. He was responsible for, among other things, guarding, sorting and logging the belongings of those who had been sent to the gas chambers or admitted to the camp.1 Gröning escaped punishment in the after- 1 Matthias Geyer, ‘An SS Officer Remembers: The Bookkeeper from Auschwitz’, Spiegel Online (09/ 05/2005), <http://web.archive.org/web/20070302085046/http://www.spiegel.de/international/ spiegel/0,1518,355188,00.html>. THOMAS DOUGLAS math of the war by concealing the nature of his wartime work, but in the 1980s he made his role at Auschwitz public. In 2015, following a change in German law that allowed for him to be prosecuted, he was tried as an accessory to the murder of at least 300,000 people. He was found guilty and sentenced to four years’ imprisonment,2 a decision that was upheld on appeal.3 Gröning’s sentence was not universally endorsed, even by those who testified against him.4 Commentators raised a number of questions. Was Gröning a victim of bad moral luck?5 Ought he to have been offered mercy given his frail condition, his (rather heavily qualified) expressions of remorse,6 and the fact that he had to an extent sought to undermine holocaust denial by speaking publicly about his experiences?7 And finally: did his wrongs simply lie too far in the past for a normal punishment to be warranted? In this article, I address this last question, though in a more general form: should serious moral wrongs from the distant past be punished, and if so, should they be punished as severely as if they had been punished promptly? Or, as I will henceforth sometimes 2 See ‘Oskar Gröning’, Trial International (08/05/2016), <https://trialinternational.org/latest-post/ oskar-groning/>. There have been two trials of Auschwitz personnel since Gröning’s conviction. In 2016, Reinhold Hanning, who had been an SS guard at Auschwitz, was convicted of aiding and abetting the murder of at least 170,000 people, though he passed away before an appeal could be heard, so never began the five-year prison term to which he was sentenced. A third Auschwitz trial, of former SS medic Hubert Zafke, was terminated due to Zafke’s illness. On Hanning, see ‘Reinhold Hanning’, Trial International (09/08/2016), <https://trialinternational.org/latest-post/reinhold-hanning/> and ‘Reinhold Hanning: Convicted Nazi Guard Dies Before Going to Prison’, BBC News (01/06/2017), <http://www.bbc.co.uk/ news/world-europe-40122610>. On Zafke, see ‘Hubert Zafke’, Trial International (29/11/2016), <https://trialinternational.org/latest-post/hubert-zafke/> and ‘German court stops trial of paramedic who worked at Auschwitz’, Reuters (12/09/2017), <https://www.reuters.com/article/us-germany-nazitrial/german-court-stops-trial-of-paramedic-who-worked-at-auschwitz-idUSKCN1BN1E6>. 3 ‘Bundesgerichtshof: Halfstrafe Gegen Oskar Gröning Ist Rechtskräftig’, Zeit Online (28/11/2016), <http://www.zeit.de/gesellschaft/zeitgeschehen/2016-11/bundesgerichtshof-oskar-groening-urteilns-massenmord>. 4 Melanie Hall, ‘‘Holocaust Survivor Criticises German Court for Decision to Jail ‘Bookkeeper of Auschwitz’,’’ The Telegraph (15/07/2015), <http://www.telegraph.co.uk/news/worldnews/europe/ germany/11742517/ Holocaust-suvivor-criticises-German-court-for-decision-to-jail-bookkeeper-of-Ausc hwitz.html> and Kashmira Gander, ‘Auschwitz Survivor Criticised for Saying SS Guard Oskar Groening Should Not Be Prosecuted’, The Independent (28/04/2015), <http://www.independent.co. uk/news/world/europe/oskar-groening-trial-auschwitz-survivor-eva-mozes-kor-criticised-by-coplaintiffs-for-saying-ex-ss-10208797. html>. 5 See, Roger Crisp, ‘The Luck of Oskar Groening’, Practical Ethics Blog (23/04/2015), <http://blog. practicalethics.ox.ac.uk/2015/04/the-luck-of-oskar-groening/>. 6 Gröning has admitted to feeling guilt for his role at Auschwitz and to having requested forgiveness from God but he has also denied that he was an active perpetrator in the killings, expressed reluctance to accept the label of ‘accomplice’, and claimed that his participation was involuntary. See Geyer, ‘An SS Officer Remembers: The Bookkeeper from Auschwitz’, supra note 1. 7 Geyer, ‘An SS Officer Remembers’, supra note 1. PUNISHING WRONGS FROM THE DISTANT PAST paraphrase this question, should distant past wrongs attract normal punishments? My answer will be given in five stages. In §I, I present a previously noted, though as-yet-unexamined, argument for the view that distant past wrongs should not attract normal punishments – an argument for the view that perpetrators of distant past wrongs should be exempted from punishment or given less severe punishments than would have been warranted had they been punished promptly. In §II, I survey two possible replies to this argument, arguing that neither succeeds. In §III, I offer my own reply, which, I hold, at least partially undermines the case for punishment exemptions or discounts. In §IV, I respond to three objections to my reply. Finally, in §V, I consider how far my reply undermines the case for exemptions or discounts. Before proceeding to these tasks, however, I need to make three preliminary remarks. First, I am interested in the moral, not legal, justifiability of punishments for distant past wrongs. Moreover, I am interested not in whether such punishments can be morally justified under prevailing legal arrangements, but in whether they could be morally justified were the law to permit them, or were it possible, without cost, to reform the law in order to permit them. Many jurisdictions currently operate statutes of limitations that legally bar the punishment of at least some distant past crimes. If there is a moral obligation on states to comply with the law, and if those states cannot without cost reform the laws in question, they may ha (...truncated)