Abstract
In the recent literature a number of free will skeptics, skeptics who believe (as I do) that punishment is justified only if deserved, have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level of certainty - perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence - that any person to be punished acted freely in breaking the law; and, second, that that level of evidence is simply not there. In this paper I make two parallel points against a quarantine theory of criminal justice. First, the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely. Second, there is not sufficient evidence for that conclusion either. I believe that the quandary that this creates for criminal justice can be resolved by distinguishing the methods associated with a particular approach from the approach itself: if our choice is between the methods of punishment and the methods of quarantine, the methods that constitute punishment are, I would argue, morally preferable to those that constitute quarantine.
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Notes
In support of this claim, consider the conflicting burden of proof arguments that compatibilists and libertarians aim at each other. For example, see Laura Ekstron against the compatibilist (Ekstrom 2000, at p. 57), Bill Lycan against the libertarian (Lycan 2003, at p. 112). When philosophical arguments reduce to competing burden-of-proof claims, there is reason to doubt whether either side has very persuasive evidence for its own position (Corrado 2018).
The best statement of this argument is in Sehon (2016) at pages 202, 207. Sehon believes that his own teleological account of freedom is immune from this objection.
The defense of lack-of-freedom is different from the affirmative defenses – insanity, self-defense, duress – for which it might be fair to place the burden of “coming forward” on the defendant. In those cases the evidence that bears on the defense is likely to be more available to the defendant than to the prosecution, so that both fairness and efficiency support making the defendant come forward to at least raise the issue. Where the claim is a universal lack of freedom, the evidence is no more available to the defendant than to the prosecution. See Corrado 2018.
To my mind, the word “retributive” is redundant when we are talking about punishment: punishment just is retribution, retribution just is punishment, so that punishment is justified if and only if retribution is justified. More about this below.
As I say, Pereboom and Caruso think it preferable to restrict detention to those who have already committed a crime. They admit, however, that the theory calls precisely for the state to take control the dangerous person who has not yet committed a crime when lesser measures are not effective to prevent him from committing a crime, and they offer a defense of this anticipatory restriction.
“Would our account endorse someone’s preventative detention even if he has not yet manifested such violence, on the supposition that the violence would be serious and highly likely in his normal environment, and that less invasive measures such as effective monitoring or drug therapy are unavailable? Perhaps it would. But this should not count as a strong objection to our view, because virtually everyone would agree that preventative detention of non-offenders is legitimate under certain possible conditions.” (Pereboom and Caruso 2018).
The defense may or may not work; my point here is simply that the theory has this consequence. One caution, though. Even supposing that lesser measures were always sufficient and that preventive detention was never required for the competent person who has not yet committed a crime, lesser restrictive measures are still restrictive measures. In a system of criminal justice that employed punishment, those lesser restrictive measures would count as punitive. So it would be a bit odd to say something like this: “Our proposal is not open to the objection that it would take away the autonomy of some individuals who have not yet committed crimes. They would simply have to wear ankle bracelets so they could be monitored.”
The claim here is not that retribution or desert provide safeguards, but rather that the methods of punishment – determinate sentences, more or less proportional sentences, sentences only after conviction for violation of a previously existing law – incorporate limits that enable the individual to control his own life (Hart 1968). As I say above, it is important to distinguish between retributive punishment and the methods that are associated in our tradition with retributive punishment. I have argued elsewhere neither retribution nor the requirement of “desert” to justify punishment are currently any safeguard against the use of the methods of quarantine. The most brazen statement of this legal fact can be found in Justice Rehnquist’s majority opinion in the Salerno case discussed in the next section:
“Respondents ... argue that the Act violates substantive due process because the pretrial detention it authorizes constitutes impermissible punishment before trial. The Government, however, has never argued that pretrial detention could be upheld if it were “punishment.” The Court of Appeals assumed that pretrial detention under the Bail Reform Act is regulatory, not penal, and we agree that it is. ... We conclude that the detention imposed by the Act falls on the regulatory side of the dichotomy. The legislative history of the Bail Reform Act clearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal.” 107 S.Ct. 2095, 2101 (1987).
Hart has argued that the desirable limits that I associate here with the methods of punishment can be justified independently of retribution; assuming a retributive aim is not necessary to justify the limits (Hart 1968). Justice Rehnquist’s remark makes perfectly clear that assuming a retributive aim for punishment is not sufficient to preserve the limits. Though retributive punishment would have those limits, he says, there’s no reason why the state is limited to using punishment. It is free to use regulatory detention. Hart’s point is clear: regulatory detention is not in fact punishment, but there may be good reason not to abandon the limits associated with punishment when we abandon retribution. Things have changed since 1987; logic and tradition have come apart. Rehnquist’s justification of preventive detention is, in a way, the “entering wedge” for pure preventive detention in American law. See Corrado 2002, 2013.
The legislation in question – federal legislation – added dangerousness to the list of justifications for pre-trial detention. The other grounds for such detention, mostly having to do with safeguarding the legal process, are not in question here. I thank an anonymous reviewer for pointing out the need to underline this.
His description of the decision is perhaps worth repeating:
This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution. (Salerno at 755)
What’s wrong with it, I would say, is that it infringes on the freedom of a number of people who might well choose, in spite of the pressures on them, not to commit a crime. What is wrong with it is that it denies the individual actor the right to make the sorts of choices that will define her character, choices that make her life meaningful. What’s wrong with it is that it does not require the community – which is just as responsible as the actor is for the plight she is in – to share in the risk that that plight gives rise to. The community will have little incentive to correct the unemployment problem in the area in question, for example, so long as the curfew is less expensive than doing something about unemployment.
The use of preventive, quarantine-like measures has increasingly been approved by our courts; the Salerno case, as I said above, was a kind of entering wedge for preventive detention into our jurisprudence. Nevertheless the last barriers to quarantine have not fallen. As for example in the “double track” sex predator cases, the courts still find that something more than dangerousness is required, namely an inability to control predatory inclinations.
In what follows I will refer to the ability to respond to reasons as control or as practical control, but it should be clear that I am not talking about the sort of control that requires free will and that would ground moral responsibility. That is, I am not talking about a sort of control that would “count as free will by the standards of the historical debate,” but rather the sort of control that is required to escape a finding of mental illness sufficient to justify commitment in our current law.
An Act for the Custody of Insane Persons charged with Offences. In The Statutes, Revised: 11 George III to 41 George III, pages 598–599. London: 1872.
The authors found that “public health officials insisted on distinguishing between behaviorally transmitted infections and those that were airborne (p. 1471),” which pretty much captures the difference between contagion that is within the actor’s control and contagion that is not. In fact a Georgia lawmaker recently apologized for even raising the issue of quarantine in these cases and explained that she was merely being provocative
“Georgia lawmaker, wife of ex-HHS secretary, says her remarks about quarantining HIV patients were misunderstood,” Washington Post, October 22 2017. Whether or not her apology was sincere, and whether or not it was justified, what brought the apology was the strong public reaction, a reaction that says a great deal about our intuitions on the question.
There is one other question I would like to raise about a system of quarantine. Would there have to be well-defined crimes, as in a system characterized by the principle of legality? If dangerousness is the key, I would think that the effort would not go into determining by legislative process what sorts of things should be outlawed, but rather into learning by expert investigation what sorts of characteristic are dangerous – just as in the case of public health quarantine the investigator should be open to detecting new forms of dangerous disease, not having them dictated to her by representatives of the people. But we have seen systems in which the aim of criminal justice was to pick out dangerous behavior on a case by case basis: systems in which the principle of analogy displaced the principle of legality. So in the German National Socialist Criminal Code, up until 1945, we find that dangerous behavior could be punished even in the absence of a law criminalizing it: “If no determinate penal law is directly applicable to the act, it shall be punished according to that law, the basic idea of which fits best.” So too in China up until 1997; in the Soviet Union up until 1958.
That is, a finding that the actor in question committed the act, and did so in the absence of the usual defenses.
Indeed Ferdinand Schoeman, who may be considered the godfather of the current philosophical movement toward quarantine, said this: “[I]t is true in this case, as in the case of [medical] quarantine, that given a determination of future dangerousness to others there is little a person can then do to get himself reclassified.” In particular the person quarantined could not argue that he had broken no law or caused no harm or that he had no intention of breaking any law or causing any harm or that he believed that he would not break any law or cause any harm. He might appeal the finding, but once the finding of dangerousness has been affirmed there is no further defense to be had. Schoeman 1979, at pages 31–33.
It’s also true that the grading of types of dangerousness would be subject to the standards of the community in ways that are hardly predictable. In Jones v. United States, 463 U.S. 354, 364–365 (1983), the plaintiff, Michael Jones, had been in commitment resulting from an insanity plea for eight years. He had stolen a leather jacket from a clothing store; the penalty for that crime had he been convicted would have been less. The Court deferred to the legislature on the question whether that crime demonstrated dangerousness sufficient to keep Jones locked up after eight years.
We do not agree with petitioner’s suggestion that the requisite dangerousness is not established by proof that a person committed a nonviolent crime against property. This Court never has held that ‘violence,’ however that term might be defined, is a prerequisite for a constitutional commitment.
The Court held that detention of Jones could continue “until such time as he has regained his sanity or is no longer a danger to himself or society.”
The spelling “Charta” is the translator’s. Frazer, the translator of the piece, added the following notes: “[von Liszt’s] theory of criminal law was based on positivism. He insisted that the purpose of criminal punishment was not to impose retribution [Vergeltung], as claimed instead by the leading criminal lawyer and stricter positivist, Karl Binding (1841–1920), but to bring about ‘special prevention’ by deterrence, with the consequence that the goal of society was both to improve social conditions and try as much as possible to re-socialize those who had engaged in criminal offences. In particular, in his view juvenile criminality should not be seen as a sub-category of general delinquency, but as a specific social problem to be dealt with primarily using social and educational measures.”
An anonymous reviewer has brought to my attention the need to say more about the intent with which restrictions are imposed. In punishment restrictions are imposed with the intent to punish, and in quarantine restrictions are imposed with the intent to protect the community. The intent to punish entails the intent to make suffer, you might say, while the intent to protect the community does not. To paraphrase the reviewer, quarantine may have suffering merely as a “secondary, but unintended” consequence. The question, then, is whether an imposition that has an unintended negative consequence should have to satisfy the same burden of proof as an imposition that is intended to bring about the negative consequence. This is an interesting question, to which I believe the answer must be affirmative. In Corrado 2018, I argued that the existence and weight of the burden of proof depends entirely upon what the costs of the proposed behavior are and who it is that incurs those costs. Nevertheless, I concede that my answer may be controversial and deserves more study.
This is not an argument for non-retributive punishment. I believe that retribution and punishment are inseparable. I admire the work done by those who argue for a form of non-retributive punishment (Vilhauer 2011), but I think that the distinction I’m making is important here. Those who argue for non-retributive punishment are better understood, I would suggest, as arguing for retaining the methods of punishment but not punishment itself. If the methods are not used in the service of retribution, then they do not constitute punishment at all.
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Corrado, M.L. Criminal Quarantine and the Burden of Proof. Philosophia 47, 1095–1110 (2019). https://doi.org/10.1007/s11406-018-0026-2
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DOI: https://doi.org/10.1007/s11406-018-0026-2