Economics and Ethics

Sitting at the Literary Table

Mark D. White

Accepting a gracious invitation from Warren Emerson, I am now guest-blogging at The Literary Table, a general interest blog with a special focus on law and the humanities (especially literature). Until such time as they kick me out, I plan on doing most of my law-related blogging there, including discussing my forthcoming edited book Retributivism: Essays on Theory and Policy, as well as my long-promised blog posts on Ethan Leib's book Friend v. Friend: The Transformation of Friendship--and What the Law Has to Do with It (which be split between the Table and my Psychology Today blog).

UPDATE: My first Table post (greetings and introductuon) is here.

Retributivism: Essays on Theory and Policy (new edited volume)

Mark D. White

Coming in April from Oxford University Press is my latest edited volume, Retributivism: Essays on Theory and Policy, featuring a dozen prominent legal scholars and philosophers presenting new interpretatations, extensions, and applications of retributivism, "broadly defined as the view that punishment is justified and motivated by considerations of justice, rights, and desert, rather than by personal or societal consequences" (from my introduction, p. xi).

UPDATE: The introduction is now posted at SSRN, courtesy of OUP.

From the description:

In Retributivism: Essays on Theory and Policy, Professor Mark D. White and his contributors offer analysis and explanations of new developments in retributivism, the philosophical account of punishment that holds that wrongdoers must be punished as a matter of right, duty, or justice, rather than to serve some general social purpose. The contemporary debate over retributivist punishment has become particularly vibrant in recent years, focusing increasingly on its political and economic as well as its philosophical aspects, and also on its practical ramifications in addition to theoretical implications. The twelve chapters in this book, written by leading legal scholars and philosophers, cover the various justifications and conceptions of retributivism, its philosophical foundations (often questioning conventional understandings), and how retributivism informs actual criminal justice procedures and practices.

The table of contents is as follows (my chapter was previewed here):

Part I: Conceptualizing Retributivism

1. Retrieving Retributivism (R.A. Duff)

2. Punishment Pluralism (Michael T. Cahill)

3. What Might Retributive Justice Be? An Argument for the Confrontational Conception of Retributivism  (Dan Markel)

4. Retributive Justice and Social Cooperation (Gerald Gaus)

Part II: Philosophical Perspectives on Retributivism

5. Some Second Thoughts on Retributivism (Jeffrie G. Murphy)

6. Kant, Retributivism, and Civic Respect (Sarah Holtman)

7. Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice (Mark D. White)

8. Hegel on Punishment: A More Sophisticated Retributivism (Jane Johnson)

Part III: Retributivism and Policy

9. Entrapment and Retributive Theory (Mark Tunick)

10. The Choice of Evils and the Collisions of Theory (Marc O. DeGirolami)

11. Retributive Sentencing, Multiple Offenders, and Bulk Discounts (Richard L. Lippke)

12. Retribution and Capital Punishment (Thom Brooks)

The End of Cost-Benefit Analysis?

Mark D. White

Today, the editors of The Wall Street Journal commented on the fine print of President Obama's recent executive order requiring all regulatory agencies to submit their rules to cost-benefit analysis in an effort to streamline government and reduce regulatory burden on business. They note that the order requires that agencies include in their cost-benfit calculations "values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts," which robs cost-benefit analysis of any epistemic value it might have had. They conclude by saying, "this sounds more like the end of cost-benefit analysis than the beginning."

We can only hope. As heterodox economists of every stripe, from social economists to public choice/political economists, have long noted, cost-benefit analysis is fraught with vagueness and ripe for political manipulation. More specifically, by its nature it cannot incorporate values and principles that cannot be quantified, as the language in the executive order states. The administration is to be lauded to some extent for realizing that policy and regulation design must take into account their ethical impacts, but proposing to do this within the context of cost-benefit analysis is self-defeating at best, and a cynical facade at worst.

I do not deny that cost-benefit analysis has its place, even within a system of allocation which is based primarily on principles like dignity and justice. (See my chapter from my fothcoming edited volume, Retributivism: Essays on Theory and Policy, for an example in the context of criminal justice.) But it should never be presumed to work with any precision nor provide any conclusive results, and rather should provide merely one piece of information--the rough balance of quantifiable benefits and costs--which should always be included alongside other factors, such as impact on dignity, equality, and so forth.

Debating the Insanity Defense

Mark D. White

In the most recent "Room for Debate" feature in The New York Times, five scholars involved in law, psychiatry, and criminal justice discuss the current state of the insanity defense in light of the Tucson shootings. A nice range of viewpoints is presented, from Alan Dershowitz's argument that the insanity defense has been marginalized, politicized, and abused, to James Q. Whitman's lament that, compared to the Europeans, the American legal system is much less sympathetic towards claims of insanity due to a stronger emphasis of individual responsibility and (therefore) retribution, to David I. Bruck's plea for keeping the insanity defense based on individual responsibility and culpability.

Perhaps my favorite two contributions to this debate were from William T. Carpenter, Jr. and Kent Scheidegger, who both question the role of medical and psychological science in informing juries decisions regarding insanity and its relationship to guilt. This brought to mind my favorite piece of scholarship on the insanity defense, on which I focus in my senior seminar on crime and punishment: Christopher Slobogin's "An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases" (Virginia Law Review, 86/6, Sept. 2000, 1199-1247). Slobogin, one of the leading experts on mental disability and the law (see his books here), argues that the insanity defense as a specific defense should be eliminated, and instead evidence of mental defect or impairment should be used to support general defenses such as mistaken belief or absence of mens rea. Since it is not insanity per se, but only how a defendant's mental state influenced his or her actions, that impacts on responsibility, it more properly enters the determination of responsibility through one of the other standard defenses, not as an independent defense detached from more traditional ones (and therefore inviting more controversy).

For example, lets's say Bob mistakenly believed, because of mental illness, that the police officer he shot was his romantic rival trying to kill him. Here, Bob's mental illness is relevant to his act because it influenced the mistaken belief that led to the act, not simply because he suffers from mental illness. It is in this sense that Slobogin argues that the insanity defense is "overbroad" (1202); insanity is not always relevant to a defendant's actions, so it should be invoked only when it contributes to one of the standard excuses that bar culpability, not as a sort of blanket excuse which invites the type of abuse Dershowitz discusses.

Furthermore, along the lines of Bruck's comment, Slobogin's argument for eliminating the insanity defense (but not the impact of mental illness in criminal trials) is based on culpability and retributivism, because he wants to ensure that people are convicted of a crime if and only if they are truly responsible for it. And rather than weakening consideration of mental illness in criminal cases, his proposal would likely make it more likely to be considered because the "spectre" of the insanity defense and its purported unfairness would no longer loom over the criminal justice system and obscure its true purpose.

New book: Kant's Metaphysics of Morals: A Critical Guide, edited by Lara Denis

Mark D. White

Just as the semester ended I recieved a fantastic book in the mail from Cambridge, Kant's Metaphysics of Morals: A Critical Guide, edited by Lara Denis (Agnes Scott College), which features a who's who of modern Kant scholarship commenting on Kant's richer treatment of his moral system:

Immanuel Kant's Metaphysics of Morals (1797), containing the Doctrine of Right and Doctrine of Virtue, is his final major work of practical philosophy. Its focus is not rational beings in general but human beings in particular, and it presupposes and deepens Kant's earlier accounts of morality, freedom, and moral psychology. In this volume of newly-commissioned essays, a distinguished team of contributors explores the Metaphysics of Morals in relation to Kant's earlier works, as well as examining themes which emerge from the text itself. Topics include the relation between right and virtue, property, punishment, and moral feeling. Their diversity of questions, perspectives and approaches will provide new insights into the work for scholars in Kant's moral and political theory.

The chapters are as follows:

1. Kant's Metaphysics of Morals: the history and significance of its deferral (Manfred Kuehn)
2. Reason, desire, and the will (Stephen Engstrom)
3. Justice without virtue (Katrin Flikschuh)
4. Kant's innate right as a rational criterion for human rights (Otfried Höffe)
5. Intelligible possession of objects of choice (B. Sharon Byrd)
6. Punishment, retribution, and the coercive enforcement of right (Allen W. Wood)
7. Moral feelings in the Metaphysics of Morals (Paul Guyer)
8. What is the enemy of virtue? (Jeanine Grenberg)
9. Freedom, primacy, and perfect duties to oneself (Lara Denis)
10. Duties to and regarding others (Robert N. Johnson)
11. Duties regarding animals (Patrick Kain)
12. Kant's Tugendlehre as normative ethics (Thomas E. Hill, Jr)

The bright side of lex talionis

Mark D. White

Maybe retributivists have been too quick to abandon lex talionis ("an eye for an eye"):

 

The Implications of Human Fallibility for the Future of Capital Punishment

Mark D. White

In a recent op-ed piece in The Wall Street Journal, Barry C. Sheck of the Innocence Project detailed the wrongful execution in Texas of convicted murderer Claude Jones after then-Governor George W. Bush was not informed of Jones' request for a last-minute DNA test on the one piece of physical evidence tying him to his alleged murder. Only recently, after six yeatrs of litigation and a decade after the execution, the DNA test was performed, and the physical evidence--a single hair--was discovered to belong to the victim, not Mr. Jones.

Mr. Scheck uses this harrowing story to argue in support of a bipartisan, federal bill now in the House, established a National Criminal Justice Reform Commission which would mandate improved practices to lessen the incidence of such travesties. But I do not feel that would go far enough, and neither does Thom Brooks of Newcastle University, who argues in his "Retribution and Capital Punishment," a chapter in my forthcoming edited volume Retributivism: Essays on Theory and Policy (Oxford, 2011), that the irreversibility and impossibility of post-reversal compensation provides a retributivist argument against capital punishment.

Unlike other scholars who argue (explicitly or implicitly) that all punishment should be eliminated because of the chance of wrongful conviction, Brooks argues that it is the unique nature--the finality--of capital punishment that should trouble us. If convictions with lesser punishments are reversed, then the penalties can be wholly or partially "refunded": fines can be paid back, and time in prison could be compensated for (imperfectly, of course, but to some extent). Stigma and harm to reputation are more difficult to repair, but steps can be taken along those lines as well. But once a person is executed, obviously he or she--nor the surviving family members--can never be "made whole." This, in Brooks' opinion (and mine), should make even a hardened retributivist question the balance of justice inherent in capital punishment given even the slightest possibility of human error in the criminal justice system. Given that possibility of error, retributivists (all of whom are steadfastly against punishing the innocent, regardless of their views on punishing the guilty) should not support a punishment that cannot be even partially reversed if the conviction is later found to be faulty.

Speaking for myself, one of those hardened retributivists, I firmly believe a murderer, absent any extenuating circumstances, deserves to be executed, but only if we know with 100% certainty that he or she is guilty. But since we can never know any person's guilt with absolute certainty, we should not impose an absolute sentence like death. (Furthermore, my libertarian nature makes me very wary to grant the state the power to execute its own citizens, but that's a different argument for a different day.)

Justice Does (Unfortunately) Have a Price in a World of Scarcity

Mark D. White

Recently, it was reported that the state of Missouri started providing cost estimates of various punishments to judges during the sentencing phase of criminal trials. Of course, this set off a firestorm of controversy regarding the appropriate role (if any) that the financial cost of punishment—particularly imprisonment—does or should play in a judge’s decision-making. Those who follow the economic approach to law would see nothing untoward in this; to that way of thinking, monetary costs are just one element of the cost-benefit analysis that informs every legal decision, including optimal sentencing. If prison costs rise, then judges should impose imprisonment less often (or to a lesser degree), even though that may reduce deterrence and increase costs (by a lesser amount) elsewhere, as long as total welfare in society is maximized.

But those who hold to a more traditional view of justice may recoil at this reduction of legal decision-making to dollars and cents, especially in an area such as criminal law which relies on concepts like wrong, guilt, and desert, claiming instead that “justice has no price.” And I would agree that justice has no price—in an ideal world. In such a world, every criminal offender would be apprehended, all defendants would be tried in court before a jury, and every convicted criminal would receive his deserved punishment. What that person “deserves” is subject to debate, of course, but it would not be determined by “mere” monetary costs, but rather some version of retributive justice that demands punishment in proportion to one’s crime.

Alas, we do not live in an ideal world. Ours is a world of scarce resources, and has long been so; resource constraints did not emerge fresh with the current economic malaise. If society were to apprehend, prosecute, and punish every criminal offender according to the severity of his crime, we would have no resources remaining for education, national defense, or any other goals that people may feel government should pursue. As every introductory economic student learns on the first day of class, scarcity makes hard choices necessary, and the hardest ones occur when principles—such as justice—must be compromised.

Because of scarcity of resources, we must balance the principle of just punishment with the other principles and goals that society regard as important (and that we elect our representatives to promote). We can certainly prioritize these principles and goals, but we have to pursue them simultaneously, and somehow allocate our limited resources among them. Of course, people responsible for budgeting, from the smallest municipality to the entire country, face that problem every day. But even once such allocations are made, the problem does not end; rather, it is shifted to the next level of decision-making down the line, including to those responsible for making decisions in the criminal justice system. And among these decision-makers are judges, who must balance legal principles in their courtrooms every day, from seemingly minor evidentiary rulings to sentencing decisions of potentially life-shattering proportion.

But are costs—or consequences in general—an appropriate factor in balancing principles of justice? Consider the lone police officer who witnesses two persons in the process of a home invasion. Once they notice her, each suspect runs in a different direction. The officer knows both should be apprehended, since both are equally suspect of wrongdoing, but she can only catch one. Which one? Perhaps she recognizes one suspect from previous warrants, or she thinks he may be key to a larger ongoing investigation. Maybe the state would have a better case against one, or he may simply be slower and therefore easier to catch. Any way she chooses, a choice must be made, and if the two suspects are equally deserving of apprehension, then a focus on justice is not going to help make the decision—but consequences might. A prosecutor may make a similar decision with respect to two cases of equal merit in terms of justice, but one of which will be much more costly in terms of time, money, and resources. If considerations of justice do not make the choice clear, costs might.

Judges are no less immune to these tragic compromises than police officers and prosecutors. It does no good to ignore the fact that justice does have a price—in a world of scarcity, it must. Apprehension, prosecution, and punishment of criminals all take resources from other important needs and goals, so their costs do need to be considered, both externally (in comparison to other societal goals) as well as internally (within the criminal justice system itself). But ideally, costs will be a secondary consideration only, a way to help make tough decisions when balancing principles of justice, and not the primary concern.

(For more on balancing principles within criminal justice, see the earlier post here.)

Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice

Mark D. White

I recently posted a new paper to SSRN, "Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice," forthcoming in my edited volume Retributivism: Essays on Theory and Policy (Oxford University Press):

In this chapter, I suggest a way that deontological retributivists can accommodate the compromises to the ideal of just punishment made necessary in the real world by scarce resources and competing societal needs and goals (a context also emphasized by Cahill and Markel in their chapters in this book). I consider recent work supporting consequentialist retributivism, in which trade-offs are allowed in order to maximize some measure of punishment or justice, but find the quantification of just punishment problematic due to the ideal or principled nature of justice inherent in the concept. Instead, I propose a practical, deontological retributivism in which the principle of just punishment is balanced with other principles and goals according to a concept of judgment drawn from the moral philosophy of Immanuel Kant and the jurisprudence of Ronald Dworkin. After outlining the resulting “pro tanto retributivism,” I compare it to other suggestions regarding how to balance competing interests within punishment, including Michael S. Moore’s “threshold retributivism,” and argue that my conception is both more flexible while adhering to a more deontological understanding of retributivism.

This is a philosophical companion of sorts to my chapter in Theoretical Foundations of Law and Economics, "Retributivism in a World of Scarcity" (pre-print draft available at SSRN here), which laid out the economic problems with a deontological retributivism that mandates just punishment of all criminals. The new paper suggests a way that deontologists can be comfortable with the compromises in just punishment that scarcity demands, drawing on a conception of balancing principles drawn from the thought of both Immanual Kant and Ronald Dworkin, an ongoing project of mine which is previewed here (as well as in my forthcoming Kantian Ethics and Economics: Autonomy, Dignity, and Character from Stanford).