In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state's relationship to its citizens. Central to my account is Rawls's “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to criminals qua citizens. I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment.
Joel Feinberg,“The Classic Debate,” in Philosophy of Law, 5th ed., ed. Joel Feinberg and Hyman Gross (Belmont, CA: Wadsworth, 1995).
2.
For a democratic approach to this question from a jurisprudential and cultural perspective, see Austin Sarat, When the State Kills (Princeton, NJ: Princeton University Press, 2001).
3.
John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 137.
4.
For a discussion of Hobbesian “contractarian” theories of the social contract versus contractualist accounts, see Cynthia Stark, “Hypothetical Consent and Justification,” Journal of Philosophy97, no. 6 (June 2000 ): 313-34.
5.
An important recent contribution to this literature is Christian List, “The Discursive Dilemma and Public Reason,”Ethics116 (January 2006): 362-402. List observes that the demands of integrity (consistency), pluralism (the inclusion of all possible individual judgments), and responsiveness to the majority cannot simultaneously be satisfied in certain decision processes. It could be argued that this difficulty is potentially damaging to contractualism because of contractualism's emphasis on ensuring pluralism. List nevertheless reveals possible “escape routes” that might be useful for contractualist theorists, each weakening one leg of the triad of constraints. In particular, his remarks about “relaxing” the pluralism demand are potentially helpful. In line with his suggestion, I argue that contractualism is not a theory of pluralism generally but rather of “reasonable pluralism,” which does not honor justifications hostile to or incompatible with reasonable interpretations of the values of freedom and equality. Another challenge to contractualism is Sophia Reibetanz's “ Contractualism and Aggregation,” Ethics108, no. 2 (January 1998): 296-311. Reibetanz suggests that contractualism is particularly weak at distinguishing among small degrees of harm. In this essay, however, I am not concerned to use contractualism to distinguish “degrees” of punishment—such as whether a punishment of three as opposed to four years in prison is justifiable—but rather to carve out a set of general rights of the guilty that constrain legitimate state punishment. In the next section, I clarify that my ambition is to rule out certain unreasonable punishments, not to deny that contractualism will face some hard cases in which there is reasonable disagreement about what constitutes legitimate punishment.
6.
Rawls has written on punishment, but that work preceded both A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) and Political Liberalism, the texts currently associated most closely with contractualist thought.
7.
Thomas Scanlon, What We Owe to Each Other (Cambridge, MA: Belknap Press of Harvard University Press, 1998). A debate exists over whether there is a distinction between reasonable rejection and reasonable acceptance by agents. For a good discussion of Scanlonian justification in the context of democratic theory, see chapter 6 of Simone Chambers, Reasonable Democracy (Ithaca, NY: Cornell University Press, 1996). For a good discussion of contractualism in a political context, see Donald Moon, Constructing Community (Princeton, NJ: Princeton University Press, 1993).
8.
8. Rawls, Political Liberalism, xliv.
9.
Ibid., 29-35.
10.
Corey Brettschneider, Democratic Rights: The Substance of Self-Government (Princeton, NJ: Princeton University Press, 2007).
11.
For a discussion of reasonable disagreements , see Amy Gutmann and DennisThompson , Democracy and Disagreement (Cambridge, MA: Belknap Press of Harvard University Press, 1996). Also see my discussion of Reibetanz in note 5.
12.
“There be some Rights, which no man can be understood by any words, or other signes, to have abandoned, or transferred. As first a man cannot lay down the right of resisting them, that assault him by force, to take away his life; because he cannot be understood to ayme thereby, at any Good to himselfe.” Thomas Hobbes, The Leviathan (Amherst, NY: Prometheus Books, 1988), 68.
13.
“Tis one thing to say, Kill me, or my fellow, if you please; another thing to say, I will kill my selfe, or my fellow.”Hobbes, The Leviathan, 114.
14.
Among others who commit capital crimes, the traitor “suffers as an enemy” when he or she is executed . Moreover, such persons are to be regarded as outside the law, so their treatment is not considered “punishment.” Hobbes, The Leviathan, 166. It is hard to see references to enemies without thinking of the Bush administration's position that those prisoners accused of terrorism held at Guantanamo Bay are “enemy combatants” not subject to limits of law. For an argument against this categorization, see David Cole , Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New York: New Press , 2003), especially “The Bill of Rights as Human Rights,” 211-27. Although part of his argument rests on an account of inherent dignity, mine rests on a specifically moral conception of citizenship, a position he does not address.
15.
Thomas Nagel argues that Hobbes does not give an account of moral obligation but of self-interested motivation. See “Hobbes' Concept of Obligation,” Philosophical Review68, no. 1 (January 1959): 68-83. In contrast, Steve Beackon and Andrew Reeve argue that Hobbes does offer a theory of obligation but concede that Hobbesian obligation is contingent on rationality— obligation exists if and only if it tends to self-preservation. See “The Benefits of Reasonable Conduct: The Leviathan Theory of Obligation,” Political Theory4, no. 4 (November 1976): 423-38.
16.
See A.J. Simmons , Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press , 1979); Christopher Wellman, “ Toward a Liberal Theory of Political Obligation,” Ethics111, no. 4 (Jul 2001): 735-59; and William Edmunson, “Legitimate Authority without Political Obligation,” Law and Philosophy17 (1998): 43-60.
17.
17. This is what some say distinguishes contractualism from contractarianism, namely, that it focuses on hypothetical rather than actual consent. Stark, in “Hypothetical Consent,” argues that hypothetical consent is not a proxy for the consent of actual citizens but shows that political principles are justified according to the standard of free and equal citizenship. I need not contest this thesis here given my ambition to use contractualism to develop an account of the limits of legitimate punishment, not an account of obligation.
18.
George Kateb , The Inner Ocean: Individualism and DemocraticCulture (Ithaca, NY: Cornell University Press, 1992 ), 4-5, 201; Kateb (2000), “What Do Citizens Owe Their Constitutional Democracy?” (delivered at the Center for Human Values 20th Anniversary Celebration, unpublished). For a criticism of the idea of inherent dignity, see Hugo Adam Bedau, “Abolishing the Death Penalty Even for the Worst Murderers,” in The Killing State: Capital Punishment in Law, Politics, and Culture, ed. Austin Sarat (New York: Oxford University Press, 1999).
19.
Jean-Jacques Rousseau, “ On the Social Contract,” in Basic Political Writings: Discourse on the Sciences and the Arts, Discourse on the Origin of Inequality, Discourse on Political Economy, on the Social Contract, trans. and ed. Donald A. Cress (Indianapolis , IN: Hackett, 1987), 141.
20.
See John Rawls, TheLaw of Peoples with “The Idea of Public Reason Revisited” (Cambridge, MA: Harvard University Press, 1999), 152-56.
21.
One argument for the compatibility of natural law and contractualist justification is found in David Carlson, “ Jurisprudence and Personality in the Work of John Rawls” Columbia Law Review94, no. 6 (October 1994). Carlson contends that the ideal of free and equal citizenship can be justified by reference to both natural law and contractualist accounts. Samuel Freeman usefully suggests how natural law views, such as those of John Finnis and Robert George, are distinct from but still reinforce contractualist accounts to the extent that they affirm public reason. See “Deliberative Democracy: A Sympathetic Comment,” Philosophy and Public Affairs29, no. 4 (Autumn 2000): 371-418.
22.
Feinberg, “The Classic Debate,” 614; Herbert Morris, “Persons and Punishment” The Monist52, no. 4 (October 1968): 475-501. For an attempt to formulate retributivist responses to death penalty cases , see Jeffrey H. Reiman, “Justice, Civilization, and the Death Penalty: Answering van denHaag,” Philosophy and Public Affairs14, no. 2 (Spring 1985): 115-48. For an elaboration on the relationship between desert and retributivist theory, see Corey Brettschneider, Punishment, Property and Justice: Philosophical Foundations of the Death Penalty and Welfare Controversies (Burlington, VT: Ashgate, 2001).
23.
This stipulation aside, my view, developed at the end of this article, is that there is no legitimate justification of capital punishment.
24.
Retributivists might draw on Locke, who suggests pragmatic reasons for the state, rather than individuals, to punish. This argument refers to the coordination problems (including the inability of the weak to punish the strong) that come from allowing private individuals a right of punishment. But while these arguments suggest part of the reason why the state exists in the first place, they do not fully capture the moral distinction between punishment by private individuals and legitimate state punishment as a collective enterprise with distinct limits. See John Locke, Two Treatises of Government, edited by Peter Laslett (Cambridge: Cambridge University Press, 1988), 351.
25.
In “Beyond Retribution” (unpublished, 6), Erin Kelly points to another key problem for punishment based on desert: that of “scaling” or “proportionality.” She argues that because of a distinction between culpability and blameworthiness, retributivists would determine the punishment that a person deserves on the basis of her moral worth instead of the moral worth of the action committed.
26.
“Transcript: Democratic Presidential Debate in Iowa,” The Washington Post on the Web, January 4, 2004. http://www.washingtonpost.com/ac2/wp-dyn/A54363-2004Jan4?language=printer .
27.
27. Some might believe that bin Laden merits the Hobbesian “enemy” label, especially since he is not a U.S. citizen. For the purposes of the argument here, however, I follow contractualists such as Rawls in referring to a moral ideal of citizenship that suggests a way of treating all persons subject to state control. Another project could offer a defense of this use in relation to noncitizens.
28.
28. My aim is to use this hypothetical to make an argument about legitimate punishment. A separate procedural question concerns whether judges should ask for such arguments in actual courtrooms. A further complication arises when judges are not given discretion in sentencing. These topics are outside the scope of the present discussion.
29.
It might seem that this reasoning regresses into a utilitarian account of punishment.According to such an account, all that is needed to justify punishment is a demonstration that society as a whole benefits. Such accounts of punishment are commonly attacked on the grounds that they cannot explain why the innocent should not be punished if doing so would deter future crime. My account is distinct in that I do not regard the need to deter as the sole justification for punishment. Rather , I have suggested that deterrence is a legitimate reason that is not reasonably rejected in the context of a criminal's punishment for a particular offense. This reason, however, is not a sufficient condition for punishment.
30.
Thomas Scanlon, “A Theory of Freedom of Expression,” Philosophy & Public Policy1 (Winter 1972): 204-26. Rawls, Political Liberalism, 348.
31.
By allowing prisoners to reflect on their punishment, such forums would treat them as reasonable moral agents capable of seriously assessing the legitimacy of their punishments. For justifications of punishment that stress the importance of moral reasoning by the criminals themselves, see HamptonJean, “ The Moral Education Theory of Punishment,” Philosophy and Public Affairs13, no. 3 (Summer 1984): 208-38, and R.A. Duff, “Penal Communications: Recent Work in thePhilosophy of Punishment,” Crime and Justice20 (1996): 1-97.
32.
Similar reasoning could justify the idea that prisoners should retain rights to free exercise of religion.Joshua Cohen, for instance, has argued that given reasonable religious disagreements, no state can claim the right to coerce citizens concerning their religious beliefs “Procedure and Substance in Deliberative Democracy ,” in Democracy and Difference: Changing Boundaries of the Political, ed. Seyla Benhabib (Princeton, NJ: Princeton University Press, 1996), 103. Such coercion would betray the ideal that coercion originates in a respect for citizens' common status. Restrictions on religion within the prison walls can be reasonably rejected because they fail to respect this status.
33.
33. One possible consequence of such disenfranchisement is that, without this basic right of citizenship, former prisoners might feel no reciprocal obligation to respect the basic requirements of law.
34.
See note 22.
35.
I thank Gilbert Harman for discussion on this point.
36.
For a detailed examination of the relationship between my argument and the older tradition of opposing capital punishment, see Corey Brettschneider, “Dignity, Citizenship, and Capital Punishment: The Right of Life Reformulated,” Studies in Law, Politics, and Society25 (2002): 119-32.
37.
For instance, the American Civil Liberties Union claims that from1976 to April 2005, 119prisoners convicted of capital crimes were found innocent and released from death row. American Civil Liberties Union, “National Death Penalty Fact Sheet,” 2005. http://www.aclu.org/capital/facts/10593res20050216.html (June23, 2006).
38.
In Herrera v. Collins, 506 U.S. 390 (1993), the Court found (roughly) that the possibility of actual innocence does not constitute grounds for an appeal if procedural rules have been followed.
39.
In United States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002), District Court Judge Jed S. Rakoff invoked a version of the fallibility argument when he suggested that the danger of executing innocent people made the death penalty unconstitutional. In Rakoff's words: “Given what DNA testing has exposed about the unreliability of the primary techniques developed by our system for the ascertainment of guilt, it is quite something else to arbitrarily eliminate, through execution, any possibility of exoneration after a certain point in time. The result can only be the fully foreseeable execution of numerous innocent persons.” The decision was reversed on appeal.
40.
356 U.S. 86 (1958).
41.
408 U.S. 238 (1972).
42.
42. Rousseau, “On The Social Contract,” 159.
43.
Ibid.
44.
I thank Austin Sarat for discussion of this point.
45.
John Austin, The Province of Jurisprudence Determined, ed. W. Rumble (Cambridge: Cambridge University Press, 1995).
