By Mark D. White

The October 2021 issue of Criminal Law and Philosophy (15/3) focuses on proportionality, a  principle of just punishment that is often neglected by economic models of criminal punishment that focus instead of cost-effective methods of deterrence, especially in light of costly enforcement measures. As special issue editors Douglas Husak and John Hasnas write in their introduction:

The following papers reveal the diversity of scholarly opinion about the principle of proportionality. Several are skeptical that the principle can be defended at all; others are reluctant to abandon the principle but point out many well-known and not-so-well-known difficulties in punishing according to proportionality; and a few make significant efforts to try to resolve some of these problems. We hope and believe that this set of papers represents major progress in understanding the role, if any, that judgments of proportionality should play in a just system of penal sentencing.

This is a fascinating set of papers by an astounding group of scholars, and will surely reward close reading—proportionate to effort, of course!

Douglas Husak, "Proportionality in Personal Life"

Larry Alexander, "Proportionality’s Function"

Mitchell N. Berman, "Proportionality, Constraint, and Culpability"

James Manwaring, "Proportionality’s Lower Bound" (OPEN ACCESS)

Adam J. Kolber, "The End of Liberty"

Youngjae Lee, "Mala Prohibita and Proportionality"

Jesper Ryberg, "Retributivism and the (Lack of) Justification of Proportionality"

Göran Duus-Otterström, "Do Offenders Deserve Proportionate Punishments?" (OPEN ACCESS)

Kimberly Kessler Ferzan, "Punishment, Proportionality, and Aggregation"

Heidi M. Hurd and Michael S. Moore, "The Ethical Implications of Proportioning Punishment to Deontological Desert"

Mark D. White

Over at the Association for Social Economics Blog, I talk about my latest edited book, Law and Social Economics: Essays in Ethical Values for Theory, Practice, and Policy, drawn from papers presented at the Allied Social Science Associations (ASSA) and Law and Society Association (LSA) meetings. Below is the table of contents:

Part I: Foundations

Chapter 1: "Towards a Contractarian Theory of Law," Claire Finkelstein

Chapter 2: "Environmental Ethics, Economics, and Property Law," Steven McMullen and Daniel Molling

Chapter 3: "Individual Rights, Economic Transactions and Recognition: A Legal Approach to Social Economics," Stefano Solari

Chapter 4: "Institutionalist Method and Forensic Proof," Robert M. LaJeunesse

Chapter 5: "Retributivist Justice and Dignity: Finding a Role for Economics in Criminal Justice," Mark D. White

Part II: Applications

Chapter 6: "Female Genital Mutilation and the Law: A Qualitative Case Study," Regina Gemignani and Quentin Wodon

Chapter 7: "An Unexamined Oxymoron: Trust but Verify," David George

Chapter 8: "On the Question of Court Activism and Economic Interests in 19th Century Married Women’s Property Law," Daniel MacDonald

Chapter 9: "Divergent Outcomes of Land Rights Claims of Indigenous Peoples in the United States," Wayne Edwards

Chapter 10: "Punitive (and) Pain-and-Suffering Damages in Brazil," Osny da Silva Filho

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.

Jonathan B. Wight

Via David Brooks comes this interesting report on incentive pay and motivation:

If you want a person to work harder, you should offer to pay on the basis of individual performance, right? Not usually. A large body of research suggests it’s best to motivate groups, not individuals. Organize your people into a group; reward everybody when the group achieves its goals. Susan Helper, Morris Kleiner and Yingchun Wang confirm this insight in a working paper for the National Bureau of Economic Research. They compared compensation schemes in different manufacturing settings and found that group incentive pay and hourly pay motivate workers more effectively than individual incentive pay.

One simple explanation for this comes from Adam Smith, who noticed that people have passionate feelings about justice and injustice.  Smith also also noted that people are behaviorally irrational in terms of generally over-estimating their own contributions (self aggrandizement).  Put these two together and you have rampant resentment against others who get higher individual rewards for group activities.

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)

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.

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.

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:

Mark D. White

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

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.)