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Social Injustice, Disadvantaged Offenders, and the State’s Authority to Punish*

2020; Wiley; Volume: 29; Issue: 1 Linguagem: Inglês

10.1111/jopp.12218

1467-9760

Andrei Poamă,

Criminal Justice and Corrections Analysis

On August 16, 2015, Louisa Sewell, a 32-year old woman living in Kidderminster, England, faced the magistrates' criminal court and admitted to stealing a pack of chocolate bars. In mitigation of her guilty plea, Sewell's defense lawyer argued that her client had been hungry for days and, with her welfare benefits suspended and unable to turn to friends or family for help, had decided to stay her hunger by shoplifting one of the cheapest food items in the store. The criminal court's ruling dismissed the excuse and imposed a £328.75 fine: £73 as a criminal sanction, £150 in court administrative charges, £85 in prosecution costs, £20 as a victim surcharge, and 75 pence in compensation to the store. Upon sentencing, the chairman of the magistrates' bench justified the decision by saying that "we do not readily accept you go into a shop to steal just for being hungry".11 For a narrative of the case, see . Sewell's case is not unique. Many contemporary liberal democracies that are expected to treat their citizens fairly allow for levels of inequality that push some people—most notably, those who find themselves subject to burdensome forms of social and economic disadvantage—to the brink of criminal acts. Some object that, when faced with Sewell-like cases, magistrates are wrong not to admit hunger or other similar necessity defenses. Others worry that, whether hunger should count as an excuse or not, stealing chocolate once is not a blameworthy action or that responding to such petty theft represents a prudentially undue burden on the criminal justice system.22 For a review, see B. Ewing, "Recent work on punishment and criminogenic disadvantage," Law and Philosophy, 37 (2018), 29–68. A more radical objection is that punishing offenders like Sewell is wrong because people who commit crimes in a context where they are subject to serious injustice can sensibly argue that the state is no longer in a position to punish and condemn them. It is this latter objection that I will assess in this article. The objection holds that (at least some of) the crimes committed by socially disadvantaged offenders fall outside the scope of the state's legitimate authority and that, consequently, they should not be punished. The thesis underlying this objection is that a state that fails to tackle serious injustice thereby forfeits its authority to punish those who are the victims of such injustice. Call this the authority thesis. The authority thesis has many supporters, notably Antony Duff and Tommie Shelby.33 R. A. Duff, Punishment, Communication and Community (Oxford: Oxford University Press, 2001); R. A. Duff, "'I might be guilty, but you can't try me': estoppel and other bars to trial," Ohio State Journal of Criminal Law, 3 (2003), 245–59; R. A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart, 2007), ch. 8; R. A. Duff, "Authority and responsibility in criminal law," S. Besson and J. Tasioulas (eds), Philosophy of International Law (Oxford: Oxford University Press, 2010), pp. 589–604; T. Shelby, Dark Ghettos: Injustice, Dissent, and Reform (Cambridge, MA: Harvard University Press, 2016). Duff and Shelby disagree on its specific formulation, but they agree that a seriously unjust state lacks the authority to punish at least some of the offenses committed by disadvantaged offenders. The core contention of the authority thesis is that the state's failure to ensure minimal social justice constitutes a flaw that the state needs to address and correct.44 My argument does not depend on a fully fledged conception of serious social injustice. All that matters here is that there is a level of social injustice that counts as serious under a plurality of plausible theories of social justice. It is precisely because it is the state's job to prevent or eliminate serious social injustice that, when the state performs this job badly, it deserves criticism and has to suffer the consequences. One of the consequences is that the state loses its legitimate authority to punish the crimes committed by those who find themselves deprived as a result of the state's poor justice record.55 I use the terms authority, legitimacy, and legitimate authority interchangeably, unless specified otherwise. I also use the expressions meeting minimal social justice and preventing/eliminating serious social injustice interchangeably. The underlying presumption of the authority thesis is that the state, or a state-like agency, is ultimately supposed to prevent serious social injustice and punish people for the crimes they commit. If that were not the case—that is, if it weren't the state's job to bring about social justice and if the state did not claim authority over penal matters—one could not explain why a seriously unjust state lacks penal authority. It would be odd to criticize an agent for asserting its authority if its authority depended on meeting a requirement the agent ought not to meet. I shall argue, however, that for all of its apparent appeal, the authority thesis is ultimately untenable. My rejection of it relies on two moves. The first move argues that a state that has lost its authority to punish people who are socially deprived also lost its authority to punish those who are not socially deprived. If the state's penal authority depends on its meeting certain social justice requirements, states that fail to satisfy these requirements lose their penal authority altogether. I will call this the non-selectivity objection. The second move is that, once one has accepted the non-selectivity objection, the demand that the state should eliminate serious injustice can no longer be coherently sustained. For the social-justice-promoting demand to properly address the state, the latter has to be in a position to legitimately enforce justice-oriented reforms. Since carrying out these reforms requires some authority for the state to punish those who would prevent them from doing so, a state without penal authority cannot enact justice-oriented reforms. We cannot coherently demand that the state do something that it has no legitimate authority to do. I'll call this the incoherence objection. The article proceeds as follows. In Section II, I provide a characterization of the authority thesis, as formulated by Duff and Shelby. In Sections III and IV, I develop the non-selectivity and the incoherence objections and explore some of the ways in which supporters of the authority thesis might reply. I conclude in Section V by briefly arguing that, although the authority thesis is incoherent in its own terms, formulating its underlying intuition in terms of a different account should inform the state's treatment of socially disadvantaged offenders. I contend that punishing disadvantaged offenders is not wrong per se. Rather, the wrong consists in punishing some disadvantaged offenders through penal methods—for instance, excessive imprisonment or unreasonably high fines—whose imposition is foreseeably iatrogenic. This is to say that some forms of punishment will compound their disadvantage and thereby increase their risk of reoffending. The wrong, on this view, is that punishment contributes to increasing rather than reducing crime. The crux of the authority thesis is that a state that fails to prevent serious social injustice loses its authority to punish those individuals who are affected by it. On this reading, the distinctive wrong of punishing socially deprived individuals consists in the wrong of punishing without the authority to do so. It is therefore consistent with the authority thesis that Louisa Sewell's action—stealing from a store—is wrong. The thesis only holds that some of the wrongs committed by deprived individuals should not be considered crimes that can be legitimately punished by socially unjust states. In this section, I will consider two formulations of the authority thesis, the first by R. A. Duff and the second by Tommie Shelby. In both of their formulations, the authority thesis has five main characteristics. First, Duff and Shelby agree that, for a state to lose its authority to punish disadvantaged offenders, its institutions must be seriously unjust. Duff refers to "serious, persistent and systematic injustice" that spans the state's institutions in a way that excludes certain people from being justly treated by those institutions.66 Duff, Punishment, Communication and Community, pp. 182 ff. Shelby talks about structural and, sometimes, "systemic injustice."77 Shelby, Dark Ghettos, p. 3. For both, then, the authority thesis applies only to circumstances where injustice is sufficiently severe. Second, the authority thesis relies on a thick conception of legitimate authority. Authority is construed as the state's right—or, more precisely, its moral power—to impose obligations on its citizens to obey the state's laws. For Duff, one of the paradigmatic ways in which a state exerts this power is by making some moral wrongs public: that is, by imposing on wrongdoers "a duty to answer for their alleged commissions of such wrongs through the criminal process."88 Duff, Punishment, Communication and Community, p. 64. For Shelby, legitimate authority consists in the "right to be obeyed," and, in particular, in the state's "right to impose obligations outside the domain of natural duties (for example, duties to respect various property claims, to follow state regulations, and to pay taxes)."99 Shelby, Dark Ghettos, p. 235. The third characteristic of the authority thesis is that it only applies to a specific kind of state, namely, a state that can still vindicate its general claim to authority. The penal authority thesis does not concern the state's authority simpliciter. If that were the case, the authority thesis would be trivial. It would make little sense to ask whether a state that lacks all authority can still maintain it in relation to socially disadvantaged offenders in a particular domain like the penal one. I will assume that the authority thesis does not just trivially assert that a state without authority lacks penal authority. Fourth, the authority thesis is not meant as an evaluation of the legitimate authority of the criminal justice system considered in isolation from the state's other basic institutions. Rather, the authority thesis contends that even if the criminal justice system is independently legitimate when it comes to its rules, procedures, and practices, it might still lack legitimate authority to punish those offenders who are socio-economically deprived as a result of the state's structural injustices.1010 Duff, "Authority and responsibility in criminal law," p. 596; Shelby, Dark Ghettos, p. 228. Fifth, the authority thesis includes a range of claims about the extent to which penal authority is lost. The content of these claims depends on how one construes the connection between considerations of authority and considerations of justice. Duff argues that an unjust state loses its penal authority because, in failing to ensure minimal social justice, it shows moral indifference toward certain values—for example, equality or respect for persons—that it then invokes when it judges and punishes offenders who have flouted those same values. By sustaining a seriously unjust institutional scheme, the state displays disregard for the values that are either constitutive of or deeply tied to the moral standards that we use to determine and denounce those injustices. Duff expresses this in terms of the state's loss of moral standing to punish disadvantaged offenders. Standing is a complex concept. For the purposes of this article, I will construe it as the moral right on the basis of which an agent is justified in calling another agent to account. For an agent to have standing to call other agents to account, it has to meet certain normative requirements. Duff suggests that an employer who treats employees "unjustly and oppressively might thereby lose whatever claim he had to their obedience to the rules he lays down for their working lives."1111 Duff, Punishment, Communication and Community, p. 184. Similarly, he argues that a state loses its standing toward socially deprived individuals when it flouts the values on which the state's authoritative relation with those individuals depends. Shelby formulates loss of penal authority in a narrower way, by focusing on the value of reciprocity. Drawing on a Rawlsian conception of justice, Shelby argues that a state that violates the value of reciprocity disproportionately imposes the burdens of its unjust institutional structure on disadvantaged offenders, while allowing socially well-off individuals to reap the benefits. For serious injustice to ensue, it is enough for a state to fail to satisfy the principle of fair equality of opportunity in relation to a relevant subsection of its citizenry.1212 Shelby, Dark Ghettos, pp. 214, 217–18. This means that the "standard for tolerable injustice should include an adequate opportunity to avoid demeaning forms of labor."1313 Ibid., p. 216. If this standard is not met, Shelby claims, people who are subject to serious injustice "cannot be said to be in violation of their civic obligations when they commit crimes and thus cannot be justifiably punished for their failures to respect the law."1414 Ibid., p. 259. Seriously unjust states are no longer in a position to authoritatively impose punishment on victims of serious injustice. These two accounts of the connection between social injustice and penal authority matter for how the state's authority to punish is forfeited. For Duff, "if the law lacks the standing to call the unjustly excluded to account, it lacks the standing in relation to all crimes, including the most serious mala in se."1515 Duff, Punishment, Communication and Community, p. 184. Loss of standing thus forecloses any relationship whereby a state can authoritatively call its socially disadvantaged citizens to account, and thus bars the state from putting socially disadvantaged offenders on trial, even when they commit serious criminal wrongs like murder or rape. For Shelby, the state loses only its authority to punish the crimes that violate the obligations underlying the state's social and economic laws and regulations. The thought here runs as follows. Violations of specific property claims (for example, some forms of theft), state regulations (for example, squatting), or state financial requirements (for example, tax evasion) constitute crimes only insofar as they run against those of the state's social and economic institutions that even disadvantaged offenders would have an obligation to obey under conditions of minimal adequate social justice. Were it not for the existence of an authoritative state—that is, on Shelby's account, of a state that is in a position to impose civic obligations—these actions would not count as crimes. Because a state that fails to prevent serious injustices loses its power to impose obligations on deprived individuals, there is no valid obligation that these individuals are violating when they are committing what would otherwise be a crime. However, when it comes to serious moral wrongs, the state's obligation-generating power is not required for counting them as crimes. We do not wait for an authoritative state to be around to punish rape or murder. In what follows, I formulate two objections that apply to both versions of the authority thesis. Together, these objections offer sufficient reasons for contesting the authority thesis qua formulation of the wrong-making feature of punishing socially disadvantaged offenders. Following this, I go on to suggest in Section V that (at least) for some disadvantaged offenders, certain forms of punishment have iatrogenic effects which render their imposition unwarranted. The first objection is that authority cannot, as articulated by supporters of the authority thesis, diagnose only the wrong at play in punishing socially disadvantaged offenders. Upon closer scrutiny, any conception of penal authority that—similar to the conceptions articulated by Duff and Shelby—holds that the state's penal authority necessarily depends on ensuring minimal social justice conditions is ultimately committed to the proposition that, insofar as the state loses its penal authority on socially disadvantaged offenders, it also loses it on non-deprived ones. Call this the non-selectivity objection. The objection is that the authority thesis does not diagnose the unique wrong at play in punishing socially disadvantaged offenders. Both Duff and Shelby contend that the state's penal authority is lost selectively: that is, only in relation to those who are seriously deprived of their social due.1616 See Duff, Punishment, Communication and Community, pp. 188, 197; and Shelby, Dark Ghettos, p. 319: "an unjust state has authority over some (e.g., the affluent members of society) but not others (e.g., those most directly burdened by the injustices of the basic structure). We might even say that a state wields legitimate authority generally speaking, but that it lacks the authority to punish particular crimes or particular classes of people who commit them." Because disadvantaged individuals have been treated either indifferently (on Duff's account) or unfairly (on Shelby's account), the state can no longer legitimately impose obligations on them. Thus stated, the argument is incomplete. Following the authority thesis, the state's willingness and ability to forestall social injustice are necessary conditions for its penal authority. When the state fails to ensure minimally adequate social justice, it forfeits its claim to authority in the thick sense. But once authority has been forfeited, it is not clear how, on either of the two versions of the authority thesis, one can argue that it has been forfeited only in relation to some individuals and not to all. Jules Holroyd raises this problem in her critique of Duff's version of the authority thesis.1717 Jules Holroyd, "Punishment and justice," Social Theory and Practice, 36 (2010), 78–111. She points out that "whether or not the state has the standing to impose an obligation upon its citizens, and call them to account for subsequent violation of this obligation, is an all-or-nothing matter."1818 Ibid., p. 86. Following Holroyd's colorful formulation, "an oil baron and the impoverished parent can both claim not to be answerable to the state for thefts or frauds."1919 Ibid., p. 89. A similar argument is outlined in M. Matravers, "Who's still standing? A comment on Antony Duff's preconditions of criminal liability," Journal of Moral Philosophy, 3 (2006), 320–30. Unauthoritative punishment thus seems to offer an over-inclusive view of the wrong involved in punishing disadvantaged offenders. In his rendition of the authority thesis, Shelby draws an analogy between state authority and parental authority. Just as a child's obligation to obey his parent hinges on the parent's adequately nurturing behavior, so too a citizen's "civic obligation to comply with legal demands is contingent on the existence of a reasonably just order."2020 Shelby, Dark Ghettos, p. 232. Shelby's analogy is compelling because there are ways in which, for any given relation between two agents that is grounded in special obligations—be they child and parent, friends, spouses, or state and citizen—there are certain actions whereby one of the two agents can be discharged of her obligations toward the other one in virtue of the latter's relevantly wrongful action. When I find out that my friend has been plotting against me or that my spouse has betrayed me with my best friend, my special obligations toward them—for instance, to fetch their groceries if they have a migraine—are no longer valid. More to the point, my friend's or my spouse's authority to claim that I discharge my obligations toward them is voided. Note, however, that Shelby's formulation of the analogy tells only half the story. Typically, when a parent loses authority—say, because of violent, careless, or otherwise unacceptable behavior—they do so in relation to all of their children. This seems to be a compelling intuition. For example, a parent who sexually abuses one of his two children has thereby lost authority in relation to both his sexually abused and his non-abused children. Neither of the two versions of the authority thesis has the resources for a selective instantiation of authority relations between the state and its members. Both versions of the authority thesis posit that the state's penal authority depends on the state meeting certain social justice requirements. But a state that fails to meet this task has failed to meet one of the necessary conditions for penal authority tout court: if being effective in preventing serious injustice is required for the state to claim authority in penal matters and the state does not satisfy this requirement, one can no longer argue that penal authority can still be preserved in relation to those who do not suffer as a result of the state's injustice. This would be like saying that a father who abuses one of his two daughters keeps his authority over the other daughter until he abuses her. One might argue that the degree or kind of injustice matters for whether the state loses its penal authority. To put it in terms of the parental analogy, if the parent engages only in limited acts of injustice—for instance, by paying for an expensive education for one child while neglecting the other children's education—it seems that the parent has only forfeited authority over the children who are deprived of educational opportunities, but has kept it over the expensively educated child. All that this example shows, however, is that the degree of injustice needs to be serious enough—for instance, the parent would need to systematically deprive some children of all educational possibilities for their entire childhood—for authority to be lost across the board.2121 On this point, see also G. Duus-Otterström and E. I. Kelly, "Injustice and the right to punish," Philosophy Compass, 14 (2019), e12565. The objection, then, is that on both formulations of the authority thesis, loss of legitimate authority is wholesale, not retail. To this, supporters of the authority thesis might reply that preventing serious injustice is not a necessary precondition for penal authority. For example, one might hold that in order for the state to have authority over a person in the thick, obligation-generating sense, what is ultimately required is a person's valid consent to the state's authority claim. This second rejoinder could be formulated either conjunctively, by asserting that consent is an additional condition for the state's authority alongside social justice requirements, or disjunctively, by asserting that consent is an alternative and, as such, sufficient condition for the state's securing its penal authority claim. Both formulations have limited force. On the conjunctive formulation, preventing social injustice remains a necessary condition for authority, which means that failure to satisfy it will lead to authority loss. On the disjunctive formulation, the authority thesis is hollowed out, since its distinctive tenet is that penal authority is necessarily grounded in preventing serious injustice, and not only on consent. But suppose that, on a revised account of the authority thesis, invalid consent could work as a normative defeater, such that, absent citizens' valid consent, the state selectively loses its penal authority over them. One could then argue that, since a person's fair opportunity to avoid committing crime is required for valid consent to be punished, and since being subject to serious disadvantage entails that such an opportunity is missing, the state's penal authority is selectively defeated for disadvantaged citizens. is attached to a justifiable obligation, if the authorities are legitimate, if the punishment deprives the individual of goods he can alienate, and if it is a necessary and effective means of protecting the community against greater harms.2323 Ibid., p. 299. Consent, on this account, is a principle for the legitimate distribution of penal sanctions, not one for deriving obligations whose violation constitutes crimes. Since the justifiability of imposing obligations through social and economic laws and regulations—and, therefore, the possibility of valid consent—is precisely under question when the state is seriously unjust, the non-selectivity objection is not averted. Absent adequate background conditions, consent has nothing left to defeat. Let us, however, drop justifiable obligations from the relevant set of background validity conditions, and retain seemingly less demanding ones, namely voluntariness, knowledge, and agential control.2424 For a general discussion of valid consent, see F. Miller and A. Wertheimer, (eds), The Ethics of Consent: Theory and Practice (Oxford: Oxford University Press, 2010). Let us additionally, if implausibly, grant that, unlike all (or most) disadvantaged offenders, all (or most) non-disadvantaged offenders satisfy these less demanding conditions. This scenario avoids the non-selectivity objection, but does so at a considerable cost. As Larry Alexander notes, such consent-centered views of penal legitimacy cannot diagnose the wrong underlying blatantly disproportionate or otherwise seriously unjust penal sanctions.2525 L. Alexander, "Consent, punishment, and proportionality," Philosophy and Public Affairs, 15 (1986), 178–82. To use Alexander's extreme example, offenders who know that overstaying parking limits is sanctioned with capital punishment, who can avoid overstaying, but voluntarily do so anyway, cannot legitimately object to being executed for it.2626 Ibid., p. 179. Moreover, offenders who violate reasonably unjust laws—for instance, laws that prohibit acts of social solidarity2727 One example here is délit de solidarité offenses declared unconstitutional by the French Conseil Constitutionnel in 2018; see . Those who think this example is irrelevant or otherwise unpersuasive can plug in their favorite socially unjust law example. The unjust law problem is a standard objection to consent-based accounts of legitimate punishment; A. H. Goldman, "The paradox of punishment," Philosophy and Public Affairs, 9 (1979), 42–58; Dudley Knowles, ''Punishment and rights," M. Matravers (ed.), Punishment and Political Theory (Oxford: Hart, 1999), 28–47, at p. 41. —would be legitimately punished under the revised consent view of penal legitimacy. This implication doesn't sit well with a view that is simultaneously committed to the state pursuing justice reforms. Given its insensitivity to social injustice, the revised consent account of penal legitimacy would be hard to endorse by supporters of the authority thesis. Summing up, a theory that posits the satisfaction of minimal social justice requirements as a necessary condition for authority commits itself to accepting non-selectivity as an in-built feature of authority. On such a theory, the state's authority qua power to impose obligations on its citizens depends on the state's ability to perform a specific task, namely, to prevent serious injustice. Insofar as the state fails to carry out this task, its failure is a general one that goes beyond its negative effects on those who stand to lose the most from it.2828 The fact that some people stand to benefit from this failure is not a good reason for believing that the state did not fail at its injustice-prevention task toward them. Experiencing an injustice gladly is not the same as experiencing no injustice. This is also highlighted by Holroyd, "Punishment and justice," p. 89. Finally, consent-centered accounts of penal authority escape the non-selectivity objection, but invite additional objections to which the authority thesis is otherwise immune. If my reply to these two rejoinders is convincing, Duff and Shelby ought to either accept the non-selectivity objection or offer another rejoinder that averts it. With such a rejoinder missing, acknowledging the objection seems to be the reasonable reply. But accepting the non-selectivity objection exposes the authority thesis to a more exacting problem, which is that it can no longer make sense of there being a cogent expectation that the state prevent serious social injustice. I turn to this problem in the following section. The starting point of this second objection is that, if the state's penal authority depends on its satisfying minimal social justice conditions, we are committed to the proposition that citizens have a claim that the unjust state take effective steps toward meeting this goal. Thus, if the state wants to regain its penal authority, it needs to initiate and pursue the reforms needed to achieve minimal social justice. However, a cogent demand that the state pursue justice-conducive reforms supposes that the state has the authority to enforce and secure compliance with these reforms. The demand thus concedes that the state retains a rightful claim to impose at least some punishment on citizens who do not comply with the state's laws and regulations that are constitutive of its reforms. Since, as argued, a state that fails to prevent serious injustice has lost its penal authority, and given that this authority is needed for compliance with the relevant reforms, the state would ultimately be unable to vindicate its rightful claim to eliminate serious injustice. The incoherence objection relies on two modus tollens moves, whereby the cogency of the demand to pursue justice-conducive reforms is denied, because the authority to pursue these reforms is denied by denying the a