The Problem of Punishment by David Boonin

OVERVIEW Legal punishment involves treating those who break the law in ways that it would be wrong to treat those who do not. Even if we assume that those who break the law are responsible for their actions and that the laws they break are just and reasonable, this practice raises a moral problem. How can the fact that a person has broken a just and reasonable law render it morally permissible for the state to treat him in ways that would otherwise be impermissible? How can the line between those who break such laws and those who do not be morally relevant in the way that the practice of punishment requires it to be? This is the problem of punishment. The problem of punishment has generated a large and increasingly sophisticated literature with a wide variety of attempted solutions. This book contributes to that literature in two ways. First, it offers a comprehensive, up-to-date introduction to the contemporary literature by providing a detailed account of the nature of punishment and of the problem it poses, followed by a survey of the many solutions to the problem in the current literature. Second, it provides a critical evaluation of these solutions both as a means of introducing the reader to the various debates that these solutions have generated and as a way of defending a particular thesis about the problem that stands in stark contrast to the position taken in the vast majority of the literature on the subject.

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The problem of punishment

Church and state

Scholars highlight an "innocence problem" as one of plea bargaining's chief failures. Their concerns, however, are misguided. In fact, most innocent defendants are far better off in a world with plea bargaining than without. Plea bargaining is not the cause of wrongful punishment. Rather, inaccurate guilty pleas are merely symptomatic of errors at the points of arrest, charge, and/or trial. Much of the worry over an innocence problem proceeds from misperceptions over (i) the characteristics of typical innocent defendants, (ii) the types of cases they generally face, and (iii) the level of due process they ordinarily desire. In reality, most innocent defendants are recidivists, because institutional biases select for the arrest and charge of these repeat players. And most cases are petty. In these low-stakes cases, recidivist innocent defendants face high pretrial process costs (particularly if they are detained). But innocent defendants also enjoy low plea prices, because prosecutors ultimately prioritize work avoidance over sentence maximization. Moreover, defendants possess certain underappreciated bargaining advantages in these lowstakes cases. In the end, the costs of proceeding to trial often swamp the costs of pleading to lenient bargains. Put differently, many recidivist innocent defendants are punished by process and released by plea. Thus, plea bargaining is no source of wrongful punishment; rather, it is a normative good that may cut punishment short, and (for the innocent at least) less punishment is a positive. Accordingly, the system must provide the innocent access to plea bargaining. Current vehicles for rational choice pleas - like no-contest pleas and equivocal pleas - are not up to the task. Instead, the system should re-conceive of false pleas as legal fictions and require defense lawyers to advise and assist innocent defendants who wish to enter into plea bargains and mouth dishonest on-the-record words of guilt.

Punishing the Innocent

Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America

In an article marked by the intelligence and fairmindedness for which his work is widely-and rightly-admired, Stephen Macedo has argued against our view that sodomy, including homosexual sodomy, is intrinsically nonmarital and immoral. His goal is to show that "new natural law" theorists, such as Germain Grisez, John Finnis, and the two of us, have no sound argument for drawing moral distinctions-which would, in turn, provide a basis for legal distinctions (particularly in the area of marriage)­ between the sodomitical acts of "devoted, loving, committed homosexual partners" and the acts of genital union of men and women in marriage. We propose in this response to defend our view against Macedo's criticisms. 
We heartily commend Macedo's efforts to understand and accurately represent the view we defend. Nevertheless, we are not entirely happy with. his formulations of it. Neither Grisez, nor Finnis, nor either of us perceives the central moral wrongness of sodomitical and other nonmarital sex acts as consisting in their being "distractions from" genuine human goods. A more adequate, though unavoidably more complex, formulation of our position is the following: (1) Marriage, considered not as a mere legal convention, but, rather, as a two-in-one-flesh communion of persons that is consummated and actualized by sexual acts of the reproductive type, is an intrinsic (or, in our parlance, "basic") human good; as such, marriage provides a noninstrumental reason for spouses, whether or not they are capable of conceiving children in their acts of genital union, to perform such acts. (2) In choosing to perform nonmarital orgasmic acts, including sodomitical acts-irrespective of whether the persons performing such acts are of the same or opposite sexes (and even if those persons are validly married to each other)-persons necessarily treat their bodies and those of their sexual partners (if any) as means or instruments in ways that damage their personal (and interpersonal) integrity; thus, regard for the basic human good of integrity provides a conclusive moral reason not to engage in sodomitical and other nonmarital sex acts. 
Macedo attacks the claims we have formulated in (1) above by offering to show that whatever values can possibly be realized in the acts of genital union of sterile spouses can equally be realized by those spouses-or similarly committed couples, whether of the same sex or opposite sexes-in oral or anal sex acts. His challenge to proponents of the natural law position is to identify a valid reason for sterile married couples to engage in acts of genital union that is not, at the same time, a valid reason for such couples (or others, married to each other or not, fertile or infertile, "gay" or "straight") to engage in oral or anal sex if they prefer or desire it. 
In effect, Macedo denies that what we refer to as the "reproductive-type acts" of spouses can have the special value and moral significance we ascribe to them. He attempts to show that we hold a "double standard" in maintaining (a) that sodomitical acts cannot be marital; and (b) that penile-vaginal acts, even of spouses who know (or at least believe) themselves to be temporarily or permanently sterile, can be marital. 
Macedo also rejects the claims we have formulated in (2) above about the damage to personal (and interpersonal) integrity, and hence, the intrinsic immorality, of choosing to perform nonmarital orgasmic acts. He affirms, and claims that many people will find it "deeply unreasonable'' of us to deny, that pleasure (including sexual pleasure) is a good in itself and, as such, provides a basic reason for acting. Relatedly, he argues that there is something implausible about our claim that it is necessarily wrong for persons sometimes to use their bodies as mere instruments in the pursuit of pleasure and other extrinsic goals. He attempts to show, by way of a reductio ad absurdum, that the principle that we believe excludes sodomitical and other nonmarital sex acts as immoral would, on our argument, also exclude as immoral such obviously innocent pleasures as chewing sugarless gum, "which gives pleasure but has no nutritional value."

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Marriage and the Liberal Imagination

When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten" sentences, only career felons and those convicted of the most serious crimes were candidates for the sentences they justly deserved. The problem was not all theoretical; the chief difficulty was the simple lack of custodial space. With the city jail at Riker's Island bulging at the seams and prison space upstate scarce, the situation could best be described as get-out-of-jail-free for all but the most dangerous offenders. Most people, however, were furious about crime and seemed to have collectively decided that they would do whatever was required to retake the streets, the parks, and the subways, almost all of which were hazardous after dark and some of which continued to be dangerous even during the day. This "get-tough" attitude towards crime matured shortly after Charles Bronson, as Paul Kersey in Death Wish, attempted to single-handedly eliminate crime from New York's streets. (1) Hamstrung by apparently silly rules of constitutional etiquette and bureaucratic sclerosis, the police were eclipsed in the mind of the public by the cold-blooded Everyman, bound only by the law of the jungle and some elusive sense of justice. (2) Ultimately, popular demand required greater sentences for career criminals, a corresponding increase in prison capacities, and more police officers patrolling the streets. I do not mean to criticize the results of the aggressive policies adopted during that period. But I do mean to argue that deterrence and incapacitation are not adequate bases for sentencing those convicted of crimes. Neither, ultimately, is rehabilitation. These goals may contribute to a sound account of punishment--they may be secondary aims of punishment--but none can, on its own, morally justify punishment. (3) Only retribution, a concept consistently misunderstood or entirely forgotten during the time I practiced criminal law, justifies punishing criminals. My aim in this paper is to present retribution as the morally justifying aim of punishment. The need to do so is well demonstrated by a dreary episode from my experience before a certain judge in the New York City Criminal Court. Also a professor at a local law school, this judge was known as a notoriously soft sentencer; indeed, he seemed to have missed his calling to either social work or psychoanalysis. Near the close of one particularly frustrating day in his courtroom, I recalled a principle of successful debate whereby one embraces the stated goals of the opposition and then explains that his proffered means are the best means to achieve those goals. Consequently, during sentencing, I argued that the best way to "help" this particular defendant was the distinctive way that criminal justice, insofar as it meant to "help" defendants at all, characteristically helped them: not by sending them to some bogus program, but by punishing them. The accused had incurred a debt to society which he had to repay. By punishing the defendant, the judge would set things right between him and the community. The judge said nothing, instead seemingly coming unstuck in time. His blank, uncomprehending stare struck me much as the empty look of a lobotomized bovine: vacant, confused, and unknowing. I had clearly gone beyond his experience, and beyond that of most sitting judges at that time. I suspect that many people fail to understand the concept of retribution even today. I. COMMON MISCONCEPTIONS ABOUT RESTITUTION First, retribution is not lex talionis, the law of retaliation, or "an eye for an eye." (4) A few societies may have tried to apply such a norm literally, but I doubt that any has actually done so consistently. Rather, societies typically deprive criminals of human resources--time, limb, life, or money--which have no relation to the particular criminal harm. …

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Retribution: The Central Aim of Punishment

The theory of practical reasoning and morality proposed by Germain Grisez, and developed by him in frequent collaboration with John Finnis and Joseph Boyle, is the most formidable presentation of natural law theory in this century. Although work by Finnis and others has brought this "new natural law theory" (NNLT) to the attention of secular philosophers, the theory is of particular interest to Catholic moralists. This is because NNLT provides resources for a fresh defense of traditional moral norms, including those forbidding abortion, euthanasia, and other forms of "direct" killing, as well as sexual immoralities such as fornication, sodomy, and masturbation. In part, no doubt, because it provides such resources, Catholics who dissent from the Church's teaching of these norms have criticized NNLT. Catholic moralists of unassailable orthodoxy (such as the Thomist philosopher Ralph McInerny) have also challenged the NNLT. Their disagreements are essentially interpretative. Grisez and his collaborators locate themselves within the broad framework of the Thomistic tradition, and have advanced interpretations of Thomistic texts in support of key claims. Redoubtable Thomists have challenged those interpretations and, more globally, NNLT's Thomistic credentials. 
Other philosophers, including some non-Catholic natural law theorists, question NNLT's status as a theory of natural law. Because NNLT's proponents hold that moral norms cannot be deduced or inferred purely from antecedent facts about human nature, these critics say it cannot be a theory of natural law. Because its proponents eschew a voluntaristic account of moral obligation (and so speak not of a "lawgiver" but of the claims of reason), and because they (particularly Finnis) are critical of much natural law theorizing about the positive law, NNLT is not, critics say, a theory of natural law. Professor Jean Porter's recent appraisal of NNLT avoids all these familiar grounds of criticism. She challenges "proportionalism" by the same arguments she advances against Grisez and Finnis. She sketches an alternate position, which she considers broadly Thomistic, but engages no interpretative issue. Porter apparently rejects the claim that practical principles (such as moral norms) cannot be deduced or inferred from purely factual premises, but her disagreement with Grisez and his collaborators on this point is a minor feature of her critique. Although there is evidence that she rejects at least some of the tradition's moral norms, we must assume that this follows from her criticisms of NNLT, and is not a basis for them.

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The New Natural Law Theory: A Reply to Jean Porter

The article VI ban on religious tests for federal offices is the sole provision on the topic of religion in the original Constitution. Since the seminal Everson decision in 1947 the courts and commentators have labored mightily to craft a thoroughgoing constitutional philosophy of church and state, in recognition of the profoundly problematic relationship between religion and law in our society. Yet none has looked carefully at the test clause for guidance. This Article does just that. 
Professor Bradley argues that notwithstanding the complete absence of attention to article VI, its story tells us all we need to know about the appropriate constitutional philosophy of religion: there is none. Instead, the test ban provides the design for a machine of religious liberty that has gone of itself for two hundred years. 
Among the ever-multiplying curiosities of the Supreme Court's church-state decisions is the near ubiquity of the evidentiary rule of "Inverse Proportion." That maxim provides that the intellectual breadth, societal importance, and case-resolving prowess of a constitutional principle be directly, but contrarily, related to the evidence supporting judicial election of it for constitutional enshrinement. Imagine a triangle perched on one of its points—or Jackie Gleason standing on his head. You are now able to intuitively apprehend the rule's substance. A first concrete illustration: No ordering principle is more widely cited than the "wall of separation" between the realms of religion and government. First deployed in 1878 by the Supreme Court to seal the fate of a convicted Mormon polygamist, the "wall" metaphor lay dormant until 1947's seminal Everson v. Board of Education opinion, where it capped the Court's Olympian pronouncements on the meaning of nonestablishment. It has been a mainstay of the law ever since. Some people may therefore have been surprised by the Justices' 1985 admission that the phrase derives neither from the constitutional text, nor from its structure, nor from the contemporaneous understanding of those who created it. Rather, it stems from a single letter by Thomas Jefferson to a community of Connecticut Baptists, which was written more than a decade after the first amendment's birth. Another illustration of the Inverse Proportion rule is found in Everson. There is no more important principle in church-state law than Everson's proscription of governmental encouragement of religion, even where the state aid does not discriminate among faiths. Arguably, the entire nonestablishment opus is little more than an excruciatingly belabored footnote to this part of Everson. Yet like the "wall" metaphor, the no-aid principle is not traced to text or structure, or to the history of the first amendment. Instead, the Everson opinion championed the views of two men—Madison and Jefferson—concerning a Virginia imbroglio over forcing Christians to pay their ministers' salaries. Not to put too fine a point on it, the recent inclination of some Justices—especially Chief Justice Rehnquist—to gauge the constitutionality of church-state activities like nativity scenes, legislative chaplains, and public school prayer by appeals to "tradition" (that is, whether the "Framers" countenanced a similar endeavor) observes the law of Inverse Proportion. To be sure, no ambitious "norm" is derived from scant evidence, but this decisionmaking methodology does not even purport to inquire into the meaning of the constitutional text or structure. Furthermore, a volatile contemporary issue like school prayer is evidently to be validated by the fact that George Washington preached a sermon on Thanksgiving Day, 1789. 
No doubt there is at least the usual ration of judicial willfulness at work here. So it is easy to observe, as Justice Brennan has, that the appeal to "tradition" probably covers for a favored political agenda. So it might. But, one must still insist that there is no necessary correlation between slender justification and doctrinal indeterminacy. Put differently, principles which are crisp and clear enough to constrain political predispositions may well be derived from the flimsiest evidence. And however controversial, relying upon ancient missives for the resolution of vexing modern problems is hardly a pipe dream. Fundamentalists do it with Paul's Epistles all the time. 
Neither is the indeterminacy of the justificatory process itself the real culprit here. True, flaccid standards of historical proof can­ not effectively ground even an intellectually honest and politically neutral search for constitutional principles for the simple reason that almost any principle may be justified. Therefore, almost none can be excluded, so long as a letter by one "Framer" suffices. Madison opposed "state aid to religion," as the popular and judicial conceptions have it. Is it not enough to stymie analysis to observe that Washington favored it?

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The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself

From all the talk about our religious pluralism-how extensive, indelible, inarbitrable it is-one would expect that establishing one definition of religious liberty would be the mother of all civic disturbances. 
Wrong. We have a common definition of religious liberty. I can demonstrate our agreement with one exhibit: the immensely broadbased denunciation of the 1990 Supreme Court decision, Employment Division v. Smith. Two counsellors at a drug rehabilitation center (Alfred Smith and Galen Black) appealed Oregon’s denial of unemployment benefits. Oregon cited the “misconduct” that led to their discharges. Their “misconduct” consisted of using the hallucinogenic drug peyote. Peyote was on Oregon’s list of controlled substances; using it was criminal. By ingesting it, Smith and Black also violated the specific terms of their employment. Each was a recovering substance abuser. Each had previously agreed to remain absolutely drug free.

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Gerard V. Bradley

Papers

Marriage and the Liberal Imagination

Retribution: The Central Aim of Punishment

The New Natural Law Theory: A Reply to Jean Porter

The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself

Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism