The American penal system is racist, degrading, and inefficient. Nonetheless, we cannot give up on punishment entirely, for social peace and cooperation depend on the deterrent threat of the criminal sanction. The question—central to determining the degree to which punishment is justified—is why society’s need for general deterrence is an offender’s problem. Why is it his responsibility to scare off would-be future offenders? His past offense does not magically render him accountable for the actions of total strangers. Existing theories of criminal justice are unable to answer this question.
This Article fills the lacuna—justifying state punishment, but, more importantly, establishing its moral limits—with the help of tort law principles. It argues that deterrent punishment can be justified as a means of rectifying an offender’s contribution to “criminality”—not merely the perceived but the objective threat of crime in society. Criminality chills the exercise of our rights, forces us to take expensive precautions, and exposes us to unreasonable risks of harm. By having increased the level of criminality in the past, an offender owes a duty of repair to society as a whole, a duty of “corrective justice” in the language of tort theorists. He can fulfill this duty by decreasing the threat of crime in the future. In this way, deterrent punishment does not merely sacrifice him to limit the problem of future crime, for which he has no personal responsibility. Rather, it forces him to fulfill his own duty of repair.
This novel theory—the corrective justice theory of punishment—entails three sentencing principles. First, punishment must in fact deter crime and must be the most efficient means of doing so. Second, however efficient it may be, punishment must not harm an offender more than is required to repair his criminality contribution. Third, even if it is both efficient and reparative, punishment must not harm an offender to a degree that is entirely out of proportion to the harm prevented by doing so. The Article demonstrates how these three principles, in combination, demand a radical reduction in American sentencing scales. The Article thus concludes that the corrective justice view presents stable moral ground for the de-carceral movement in America.
Introduction
The American penal system is racist,1 1.See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (10th Anniversary ed. 2020); Desmond S. King & Rogers M. Smith, Racial Orders in American Political Development, 99 Am. Pol. Sci. Rev. 75 (2005); Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271 (2004).Show More degrading,2 2.See Jacob Bronsther, Long-Term Incarceration and the Moral Limits of Punishment, 41 Cardozo L. Rev. 2369 (2020); Jonathan Simon, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America 10 (2014).Show More and inefficient.3 3.See Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration (2019); David M. Kennedy, Deterrence and Crime Prevention (2009); Mark A. R. Kleiman, When Brute Force Fails: How to Have Less Crime and Less Punishment (2009); Oliver Roeder, Lauren-Brooke Eisen & Julia Bowling, What Caused the Crime Decline? (2015); Franklin E. Zimring, Gordon Hawkins & Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (2001).Show More We punish too many people too harshly. Nonetheless, we cannot give up on punishment entirely, for Hobbes is still right: social peace and cooperation in the modern world require state punishment for those who break the law.4 4.See Thomas Hobbes, Leviathan 86–129, 183–221 (Richard Tuck ed., Cambridge Univ. Press rev. student ed. 1996) (1651).Show More Not a lot of punishment.5 5.There is considerable evidence that the certainty of receiving some level of punishment is more important for the purpose of deterrence than the severity of the punishment applied. See Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Just. 199, 201 (2013); Andrew von Hirsch, Anthony E. Bottoms, Elizabeth Burney & Per-Olof Wikström, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research 25–27, 47–48 (1999); Steven N. Durlauf & Daniel S. Nagin, Imprisonment and Crime: Can Both Be Reduced?, 10 Criminology & Pub. Pol’y 13, 13–14 (2011).Show More Much less than we currently dole out—but some. Whether as an expression of human rationality or selfishness, people behave badly without the threat of the criminal sanction.6 6.See Hobbes, supra note 4, at 86–100 (discussing the limited circumstances in which cooperation is rational); Robert Axelrod, The Evolution of Cooperation 3–24 (Penguin Books 1990) (1984) (same); Robert Sugden, The Economics of Rights, Co-operation and Welfare 36–57 (2d ed. 2004) (same).Show More Indeed, recent examples of societies operating without criminal justice systems—such as Denmark after German soldiers arrested its police force in 1944,7 7.Johannes Andenaes, The General Preventive Effects of Punishment, 114 U. Pa. L. Rev. 949, 962 (1966) (reporting that during the German occupation of Denmark, when an unarmed watch corps served as a makeshift police force, the frequency of street crimes like robbery rose very sharply).Show More Iraq after U.S. and coalition forces overthrew the Baathist regime in 2003,8 8.Naomi Klein, Baghdad Year Zero: Pillaging Iraq in Pursuit of a Neocon Utopia, Harper’s Mag., Sept. 2004, at 43, 46–53 (reporting widespread lawlessness after the fall of the Baathist regime); John F. Burns, Pillagers Strip Iraqi Museum of Its Treasure, N.Y. Times (Apr. 12, 2003), http://www.nytimes.com/2003/04/12/international/worldspecial/pillagers-strip-iraqi-museum-of-its-treasure.html [https://perma.cc/FN2R-H4U2] (reporting looting).Show More and the Brazilian state of Espírito Santo after its police force went on strike in 20179 9.Paulo Whitaker & Pablo Garcia, Over 100 Dead in Brazil as Police Strike Spurs Anarchy, Reuters (Feb. 9, 2017, 10:21 AM), http://www.reuters.com/article/us-brazil-violence-espirito-santo-idUSKBN15O1ZT [https://perma.cc/993E-JTMS] (reporting widespread violence in the wake of the police strike); Lola Mosanya, ‘Crazy Violence’ in Brazilian State During Police Strike, BBC Newsbeat (Feb. 11, 2017), http://www.bbc.co.uk/newsbeat/article/–38942911/crazy-violence-in-brazilian-state-during-police-strike [https://perma.cc/J7LC-GLZN] (same); Paulo Whitaker, Some Brazil Police Break Strike Following Wave of Homicides, Reuters (Feb. 12, 2017, 11:36 AM), http://www.reuters.com/article/us-brazil-violence-idUSKBN15R0SU [https://perma.cc/W84S-TLFL] (same).Show More—loudly support the thesis that we need some level of general deterrence to maintain civil order.
The question—central to determining the degree to which punishment is justified—is why society’s need for general deterrence is an offender’s problem. How could it be that breaking the law means that the state is entitled to harm you to scare off would-be future offenders?10 10.“Specific” deterrence, whereby an individual’s punishment is meant to discourage his own future offending, does not raise this concern.Show More There is something positively sinister in Reverend Sydney Smith’s statement of the deterrence theory from 1824: “When a man has been proved to have committed a crime, it is expedient that society should make use of that man for the diminution of crime: he belongs to them for that purpose.”11 11.Sydney Smith, The Treatment of Untried Prisoners (1824), reprinted in Essays: Social and Political 236, 249 n.* (London, Ward, Lock & Bowden, Ltd. n.d.) (emphasis added).Show More Consider, by comparison, that if punishing an entirely innocent person happened to deter crime, we still would not do it. It is not that person’s responsibility to scare off would-be future offenders. But why is it the responsibility of an actual offender? His past offense does not magically render him accountable for the actions of total strangers. His punishment would thus seem to merely sacrifice him for the greater good,12 12.See Immanuel Kant, Groundwork of the Metaphysics of Morals (1785), reprinted in Practical Philosophy 37, 80 (Mary J. Gregor ed. & trans., 1996) (1785) (“So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.”).Show More in the specific sense that it would intentionally harm him as a means of mitigating a social problem for which he lacks responsibility.13 13.See Jacob Bronsther, Vague Comparisons and Proportional Sentencing, 25 Legal Theory 26, 48 (2019).Show More In different guises, this question has been raised many times before.14 14.See, e.g., Ted Honderich, Punishment: The Supposed Justifications 53 (1969); Johannes Andenaes, The Morality of Deterrence, 37 U. Chi. L. Rev. 649, 649 (1970); Nigel Walker, The Efficacy and Morality of Deterrents, 1979 Crim. L. Rev. 129, 139; Kent Greenawalt, Punishment, 74 J. Crim. L. & Criminology 343, 353 (1983); Warren Quinn, The Right to Threaten and the Right to Punish, 14 Phil. & Pub. Affs. 327, 330–31 (1985); Wojciech Sadurski, Giving Desert Its Due: Social Justice and Legal Theory 253 (1985); Igor Primoratz, Justifying Legal Punishment 35 (1989); Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law 113–14 (2011).Show More But thus far scholars have ignored or awkwardly side-stepped the issue,15 15.See infra Part I.Show More leaving a justificatory hole at the center of the criminal law.
This Article presents a solution—justifying state punishment, but, more importantly, establishing its moral limits—through a new conception of criminal justice: the corrective justice theory of punishment. On this view, deterrent punishment can be justified, but only to a limited degree, as a means of rectifying an offender’s contribution to the threat of crime in society. Not just an abstract justification of state punishment, but also a set of strict sentencing principles, the corrective justice theory presents stable moral ground for the de-carceral movement in America.
In developing this view, the Article conceives of the criminal law as a system of protections—against murder, rape, theft, drunk driving, and so forth—upon which all citizens rely for their assured liberty and safety, and that depends for its effectiveness on the deterrent threat of punishment. This, I argue, is the function of the criminal law. We punish not to give wrongdoers a deserved allotment of suffering or condemnation, as on the retributivist view,16 16.See infra notes 35–49 and accompanying text.Show More nor simply to increase the “cost” of offending, as on the utilitarian theory of deterrence,17 17.See infra notes 29–30 and accompanying text.Show More but to help maintain a civil order in which strangers can live together peacefully and productively.
Put differently, the traditional theories understand the criminal law to have only two subjects: offenders and victims. The criminal law either (a) delivers retribution to an offender for creating a victim or (b) prevents the creation of future victims. What these theories have left out, somehow, is everybody else. When it is working, the criminal law is an indispensable source of security for all people, bathing them in protection as they, say, ride a busy subway in the morning and as they sleep in their beds at night. Beyond its protections against violence, the criminal law also helps to regulate cooperative enterprises like the traffic system and the stock market.18 18.See Lindsay Farmer, Making the Modern Criminal Law: Criminalization and Civil Order 37–60 (2016); Vincent Chiao, Criminal Law in the Age of the Administrative State 35–70 (2019).Show More Of course, other forms of law, like contract law, and non-legal social norms,19 19.See Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (1991) (arguing that informal norms can enable social cooperation); Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. Chi. L. Rev. 133, 135 (1996) (examining the interactions between the legal and non-legal normative orders).Show More like the norm against cutting a line, also facilitate civil society. But I maintain, following Hobbes, that these more refined means of civilization depend on the underlying threat of the criminal law.
The Article then explains that the criminal law, as a system of protections, rests ultimately not on police intervention, but rather on people self-applying criminal legal norms. This, I argue, is the method of the criminal law. When I walk down a street, I am not relying upon the police to protect me like personal guards, but rather upon other people within the jurisdiction to self-apply the rules that prohibit assaulting me, stealing my wallet, and so forth.
This conception of the criminal law clarifies the nature of the criminal wrong. When an individual offender fails to self-apply the criminal law, then, in combination with other offenders, he contributes to a wider social threat. This is “criminality”—not merely the perceived but the objective threat of crime. The social costs of criminality are reflected in both the completed offenses themselves and the actions taken to prevent or avoid the completed offenses. That is, in addition to subjecting us to unreasonable risks of harm, criminality also chills the exercise of our rights and forces us to take expensive precautions. Thus, the more criminality there is in society, the less worth the criminal law has as a guide to the possible incursions of other people, and the less assured is our liberty. Deterrent punishment, as a means of holding an offender responsible for his criminality contributions, is thereby permissible; that is, it does not merely sacrifice him to mitigate a problem for which he lacks responsibility.
In accordance with the corrective justice theory, we can use an offender via general deterrence as a means of repairing the damage to our assured liberty caused by his past criminality contributions. He increased the level of criminality in the past to some degree, contributing to a threat that makes life in society more difficult, perilous, and expensive; and the way to repair that—as a means of securing what tort law theorists call “corrective justice”20 20.See generally Jules L. Coleman, Risks and Wrongs 324 (1992) (“Corrective justice imposes on wrongdoers the duty to repair their wrongs and the wrongful losses their wrongdoing occasions. . . . losses for which they are responsible.”); Ernest J. Weinrib, Corrective Justice 17 (2012) (“Because the defendant, if liable, has committed the same injustice that the plaintiff has suffered, the reason the plaintiff wins ought to be the same as the reason the defendant loses.”); Jules Coleman, Corrective Justice and Wrongful Gain, 11 J. Legal Stud. 421, 421–22 (1982) (arguing that corrective justice is the foundation of tort law and responding to efficiency-based theories of tort law); Scott Hershovitz, Corrective Justice for Civil Recourse Theorists, 39 Fla. St. U. L. Rev. 107, 109 (2011) (suggesting a conception of corrective justice that is compatible with the civil recourse theory of tort law); Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992) (surveying and critiquing theories of corrective justice).Show More—is to use him to decrease the level of criminality in the future. The state is not merely sacrificing him to limit the problem of future crime. Rather, it is forcing him to fulfill his own duty, owed to society as a whole, to repair his criminality contributions and restore the reliability of the criminal law system. Over time, ideally—with would-be future offenders appropriately deterred—it would be as if he had never contributed to criminality at all, in terms of the average threat of crime faced by society. In this way, the Article justifies general deterrence with the help of tort law principles. It explains that we ought to conceive of the criminal wrong as a tort against society, in the form of a criminality contribution, and then of deterrent punishment as an equitable remedy for that wrong.
Does it matter whether we get this theory (or any such theory of punishment) right? Emphatically yes. As John Gardner writes, “criminalization and criminal punishment are prima facie such abhorrent practices,”21 21.John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law 204 (2007).Show More and so the burden of justifying these practices rests squarely and heavily upon the state. The stakes for offenders are high, even in mild systems of punishment; and the state needs an honest and convincing answer when someone asks, “Why am I being punished?” The corrective justice theory aims to provide that answer.
Further, a society’s theory of punishment is ultimately its theory of criminal sentencing. The reasons that explain why the state can permissibly punish at all will also prescribe how much and what type of punishment is handed down. This Article examines the sentencing implications of the corrective justice theory at length. The basic sentencing principle is as follows: by increasing past criminality by X units, an offender owes a duty to society to decrease future criminality by X units. The Article then develops three subsidiary principles.
First, the infliction of penal harm must be parsimonious, meaning that it must generate deterrence and must be the most efficient means of doing so. Given that the budget for crime prevention is limited, the state should ask, for each dollar spent, whether investments in the community, such as early childhood development programs, would represent a more efficient means of reducing future criminality.
Second, punishment must be reparative, repairing only the offender’s wrongdoing, rather than merely being “useful.” The offender does not simply “belong to society,” as on Rev. Smith’s view.22 22.Smith, supra note 11, at 249.Show More When punishing an offender is in fact the most efficient means of crime prevention, the state is entitled to harm him to the degree required to erase his criminality contribution, but no more. Utilitarian deterrence theories, by comparison, lack internal sentencing limits tied to the severity of offenses and would indeed license the punishment of innocent people if it happened to maximize social welfare.
Third, sentences must be equitable. What if the infliction of deterrent harm were parsimonious and reparative, but nonetheless draconian? Imagine that only thirty-year prison sentences could erase the criminality contributions of car thieves. This Article draws insight from the law of equity, examining when courts will grant an injunction in response to a tort or specific performance in response to a breach of contract. The Article concludes that it is impermissible to harm an offender to a degree that is entirely out of proportion to the harm prevented by doing so. A thirty-year sentence for a car thief, even if it were the singular means of generating the requisite amount of deterrence, would be entirely out of proportion to the reparative benefit gained by society.23 23.Cf. Blackfield v. Thomas Allec Corp., 17 P.2d 165, 165 (Cal. Dist. Ct. App. 1932) (holding that removing an overhang at a cost of $6,875 was entirely out of proportion to the $200 in damages suffered by the plaintiff).Show More
Finally, the Article explains how jurisdictions can apply these principles in the real world and demonstrates how they would radically reduce American sentencing scales.
This Article proceeds in four parts. Part I demonstrates that the two dominant schools of criminal law theory—utilitarianism and retributivism—are unable to explain how general deterrence might be consistent with a principled refusal to sacrifice people to limit harms or threats for which they lack responsibility. Part II introduces the conception of the criminal law as a system of protections. It shows how this system depends on people self-applying criminal legal norms and how offenders create the threat of criminality as a byproduct of their unreliability with regard to upholding the criminal law. The analogy is to factories contributing to smog and global warming as a byproduct of their pollution. Part II also defends the empirical premise that this system of protections requires a certain amount of deterrent punishment to function effectively. Part III introduces the “corrective justice” principle that provides an exception to the general prohibition on using people as a means to the greater good. This principle explains that an individual has a duty to rectify the losses or damage caused by his wrongful conduct and that he can permissibly be forced to fulfill this duty. Part III then applies this principle to the conception of the criminal law and criminality detailed above to generate the corrective justice theory of punishment. Part IV develops the corrective justice theory of sentencing.