Innocence Lost: A Problem for Punishment as Duty

Law and Philosophy  The Author(s). This article is published with open access at Springerlink.com 2017 DOI 10.1007/s10982-017-9288-2 PATRICK TOMLIN INNOCENCE LOST: A PROBLEM FOR PUNISHMENT AS DUTY (Accepted 4 January 2017) ABSTRACT. Constrained instrumentalist theories of punishment – those that seek to justify punishment by its good effects, but limit its scope – are an attractive alternative to pure retributivism or utilitarianism. One way in which we may be able to limit the scope of instrumental punishment is by justifying punishment through the concept of duty. This strategy is most clearly pursued in Victor Tadros’ influential ‘Duty View’ of punishment. In this paper, I show that the Duty View as it stands cannot find any moral distinction between the permissible punishment of the guilty and the permissible punishment of the innocent in extreme circumstances, therefore undermining one the key pillars of its intuitive appeal. I canvass several ways to respond to this problem, arguing that a rights (or claims) forfeiture theory which employs the distinction between rights forfeiture and rights infringement (or claims forfeiture and infringement) is the best solution. I. INTRODUCTION Our traditional theories of punishment – those based on utilitarianism and retribution – have implications which are counter-intuitive for many. Retributivism (in its purest forms) requires us to see an offender’s suffering as good, appropriate, or warranted in and of itself. Utilitarian theories avoid this entailment – punishment is, in Jeremy Bentham’s words, ‘an evil, though necessary to prevent greater evils’1 – but they have a hard time explaining what is wrong with punishing the innocent. If punishment is at best a necessary evil, then provided punishing the innocent does enough good, there are no resources within utilitarianism to object to that, or to distinguish between the punishment of the innocent and the guilty. 1 Jeremy Bentham, Theory of Legislation, Second Edition (London: Trübner & Co., 1871), p. 360. PATRICK TOMLIN For those who find both entailments problematic, one way to try to get around them is to combine the most attractive features of these two traditional theories – namely, utilitarianism’s view of punishment as a regrettable necessity, and retributivism’s link between guilt and punishment. This produces a group of theories which I call ‘constrained instrumentalist’ theories. These theories side with Bentham in seeing punishment as justified instrumentally, by its extrinsic good effects, whilst agreeing with retributivism that punishment is (ordinarily) only justified when applied to the guilty. In order to avoid retributivist conclusions about the value or appropriateness of suffering in and of itself, constrained instrumentalists must provide us with a concept other than desert which will explain why we may only (ordinarily) use guilty persons’ punishment in order to produce the extrinsic benefits that punishment is thought to produce. One variant of constrained instrumentalism limits instrumental punishment by justifying it through the concept of duty. Instrumentalism requires us to use offenders’ suffering as a means to achieving good effects. Many philosophers believe that using others as a means in this way is ordinarily wrong. Duty-based views say that we can permissibly use people’s suffering in this way when the suffering we cause through punishment is suffering that the person has an enforceable duty to experience. This is an attractive route for two reasons. First, punishment is hard to justify. It involves doing things to persons that it would ordinarily be impermissible to inflict upon them. If people have an enforceable duty to do, or to experience, something, that would explain why these things may be done to them. This is a general point about moral theory – we can justifiably harm people in the pursuit of some end when they have an enforceable duty to take on that level of harm in the name of that end. Think of cases where a culpable wrongdoer has created a threat – we may harm him to avert that threat if, as seems plausible, he has an enforceable duty to take on that level of harm in order to avert the threat. Second, a more particular point about punishment itself: It is an intuitive thought that offenders owe a ‘debt’ to their victims or to society. Although the language of ‘debt’ is often employed by retributivists, they owe an explanation of how punishment alone INNOCENCE LOST pays a ‘debt’.2 Instrumentalists, however, can show how the extrinsic benefits of punishments that they demand as part of the justification of punishment can make the repayment of debt through punishment something real, rather than a mere metaphor. It seems plausible that offenders have debts and thus duties to their victims and, perhaps, to wider society, and punishment may be a way for them to discharge those duties, for example by reducing crime through deterrence. We can back up the idea that offenders have such duties with this thought: If criminals who avoid punishment, for example by escaping from prison (without harming anyone), do something wrong, that must be not only because the community has a right to punish them, but also because the offenders have a duty to submit to punishment. In this essay, I will argue that despite its attractiveness, this variant of constrained instrumentalism has a serious problem. This problem comes to light not when we think about the central case of punishing offenders, but when we think about some ways in which punishments – or harms very like punishments – may be inflicted on the innocent. I will argue for the following claims. First, justifying punishment through duty will sometimes, in extreme circumstances, allow the punishment of the innocent. I take this to be a clarificatory and sympathetic claim. Second, and more importantly, justifying punishment through duty fails to differentiate between the permissible punishment of the guilty and some permissible punishment of the innocent, which is counter-intuitive. Third, another constraining concept – namely, rights forfeiture (or claims forfeiture) – can do a better job, when coupled with the notion of rights infringement (or claims infringement). Finally, I examine whether rights forfeiture and duty theories may be combined. That is, while I am sympathetic to using duty to justify punishment, I think that rights forfeiture (or claims forfeiture) must play a central role in the theory, if we are to properly distinguish between the punishment of the innocent and the punishment of the guilty. Endorsing this combination requires us to accept some controversial positions on the relationship between rights (or claims) and duties. 2 As Warren Quinn observes: ‘In punishment . . . there is a ‘‘taking away’’ from the criminal without any obvious transfer of what is taken away to anyone else.’ Warren Quinn, ‘The Right to Threaten and the Right to Punish’ in Philosophy & (...truncated)