Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, January 27, 2011

Pristine and Polluted Retributivism

On Tuesday I was lucky to participate in a gathering of criminal law theory nuts at Brooklyn law school to discuss a couple of interesting papers in punishment theory.  At one point in the discussion, the issue arose as to what retributivism might require of the punisher if there was evidence that something terrible had happened to the offender after committing the crime that was somehow responsive to the crime.  Doug Husak offered something like this example: suppose that X rapes Y.  When Z, Y's brother, comes to find out about the rape, he is so enraged that he finds X and keeps him locked in a closet for 3 years (keeping him alive, but in a horrible state).  After the three years, the police come to find out about the rape and arrest X.  Suppose further that the sentence for rape in this circumstance is 3-8 years.  Should the judge consider the fact that X had suffered the horrible ordeal of being closeted for 3 years in deciding how long to punish X?  Would a possible sentence here be no prison time at all? 

Some time back Doug Berman asked a related, but different, question about whether the suicide of Bernard Madoff's son, had it happened before Madoff's sentence, ought to have somehow mitigated or diminished the sentence imposed.  The issues are different because (a) we can be quite sure that X suffered a great deal; whereas (absent some hard evidence), we cannot be sure that Madoff suffered as a result of his son's suicide; and (b) somehow there seems to be a more direct responsive tie between the rape and the closeting than there does in the Madoff situation (admittedly, I am not certain about how to describe the difference).  But the question in both kinds of case is -- for the retributivist, what ought to be the significance of the defendant's suffering (Adam Kolber's work is one kind of answer).

Now comes the sentencing of Ahmed Khalfan Ghailani.  Ghailani was convicted of a count of conspiracy to destroy the U.S. embassies in Kenya and Tanzania, acts which resulted in the deaths of 224 people.  HIs defense lawyer argued at sentencing that Ghailani's punishment should be mitigated to something less than life in prison because he had been tortured by the CIA after his capture.  The judge noted that the issue of Ghailani's treatment was not before him, but he also said this: "Whatever Mr. Ghailani suffered at the hands of the CIA and others in our government, and however unpleasant the conditions of his confinement, the impact on him pales by comparison to the suffering and the horror that he and his confederates caused[.]"

Suppose that it is, in fact, true that Ghailani was tortured by the CIA.  What makes this an interesting variation on the cases above is that, unlike in those cases, here it is actually the state which has inflicted the extra-punitive suffering.  By putting it this way, I'm not suggesting that the torture constitutes part of Ghailani's "punishment."  But that still leaves open the question whether a retributivist could consider the fact that Ghailani was tortured by the state (assuming, again, that this is true) in imposing a punishment less severe than he otherwise would.

Here it may be helpful to divide retributivists into two camps -- pristine and polluted.  The pristine retributivist -- he who likes his theoretical accounts clean, pure as the driven snow -- might say that while Ghailani would be entitled to seek some other civil remedy, the question of his punishment ought to be unaffected.  It would be, for the pristine retributivist, a category mistake to permit the issue of torture to muck up the purity of the core retributivist aim -- to calibrate punishment in proportion to desert for the crime committed.  Retributivism here has a limited domain -- one might even call it a political retributivism, in that it involves solely the narrow issue of what the state "owes" the D in light of his offense.  

By contrast, the polluted retributivist would be open to considering the issue of state torture in the question of mitigation.  Like the pristine retributivist, the polluted retributivist would not deem the torture "punishment."  But that would not stop him from taking stock of the circumstances that attend the punishment of this person, in the light of what had happened to him specifically, pre- and post-offense.  We could call this a moral retributivism, one which amplifies the scope of the state's inquiry when it comes to the justification of retributive punishment.

For what it's worth, and because I generally favor self-consciously, willfully impure legal theories of all kinds (and not just in criminal law), I tend to be more attracted to polluted retribution.  I recognize that such an approach expands the range of considerations that a state may ask after, and that's a little disquieting.  But I think polluted retributivism may be a more accurate description of what real retributivist punishment practices look like, and that is, in my view, to its credit.      


DeGirolami, Marc | Permalink

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I'm about as familiar with the scholarship on retributivism as I am with the Oscar nominees (i.e., not familiar at all aside from Toy Story 3). That said, it seems that the only politically legitimate expression of retribution is through legitimate state channels, through the positive law. I'm skeptical of a judge's competence to translate a non-state actor's retributive conduct toward the offender into any sort of equivalent degree of retribution under the sentencing laws.

Posted by: rob vischer | Jan 27, 2011 10:03:44 AM

Thanks, Rob. You are making a nice case for political (or pristine) retributivism, and this was something like the view that Dan Markel voiced in response to Husak's hypothetical (Husak took what I've described as the moral retributivist view).

Three little additional questions/thoughts:

1. Would it make a difference to you if it *was* a state actor who was responsible for the additional retributive conduct (as in the Ghailani situation)? Maybe now we have something in between pristine and polluted retribution?

2. One problem that polluted retributivism might point to is not only mitigating punishment for those who already have suffered greatly, but aggravating it for those whom one thinks have not suffered enough.

3. Are you also skeptical of the capacity of judges to use other sorts of external factors (other, that is, than the fact that somebody was locked in a closet for three years) in calibrating sentence on retributivist grounds? For example, are you skeptical of a judge's capacity to use criminal history, family history, character evidence, evidence of the D's remorse, etc.? What if, after the rape, X had, in the ensuing car chase, crashed into a tree, and as a result he had become a quadriplegic? Would it be improper for a judge to consider the D's quadriplegia in reducing his sentence -- thinking only about retributivist reasons?


Posted by: Marc DeGirolami | Jan 27, 2011 10:24:13 AM

1. I think torture is a bad example to the extent that the state actor is acting outside the politically legitimate channels of retribution. If a state actor has "punished" the actor in some politically legitimate way, then I assume the translation has occurred via the means that made the punishment legitimate in the first place.

2. Yes, so if Madoff was continuing to live in a penthouse on the upper east side, should he get a tougher sentence than the offender who lost everything due to civil actions against him, even before the criminal sentence was imposed?

3. Not sure. I'm leery of judges translating extralegal suffering into "punishment" for purposes of criminal law. My initial reaction is that the fact the offender became paralyzed does not mean he deserves a lesser sentence b/c the accident is itself a punishment, but rather that he may deserve a lesser sentence b/c imprisonment itself would be a harsher punishment for someone in his condition. Just a thought . . .

Posted by: rob vischer | Jan 27, 2011 10:30:45 AM

He helped murder 224 people. He should never ever get out of prison under any circumstances. That is justice, his due.

Posted by: Fr. J | Jan 27, 2011 10:40:04 AM

Thanks, Rob -- as to 3, I very much agree that I would not call the quadriplegia "punishment" but that still leaves open the question whether a retributivist could countenance it in modifying the punishment. Maybe the reason for doing so would be that the D would experience the same punishment more severely, would suffer more. In some ways that becomes an empirical question, though it seems right intuitively. And if we start thinking about how people experience punishment, how much they suffer, then we're often and running with all kinds of problems for proportionality.

But maybe the reason to mitigate for the quadriplegic is (also) the reason of pollution -- that it isn't possible in some circumstances to keep our ideas of retribuvitism conceptually pure.

Thanks again for the thoughtful response.

Posted by: Marc DeGirolami | Jan 27, 2011 10:41:23 AM

One way to get at the question is this: If the quadriplegic's accident had occurred before the crime, would a reduced sentence be less appropriate than if it had occurred after the crime or as part of the crime? I don't think it would be, which to me means that we're not talking about retribution.

Posted by: rob vischer | Jan 27, 2011 11:36:52 AM

As a practical matter, don't you believe judges engage in this "calculate everything" weighing a lot in determining the official sentence? It seems they do. The drunk driver has suffered embarrassment in the local community, or lost a job, or the defendant shows that he has suffered psychologically and feels remorse for his actions .... so the 'official' sentence is lesser than what it otherwise would be. Think of some sentences where the parent forgets about the kid in the car seat and the kid dies in the heat: parent has suffered more than the state ever could punish, so no state punishment (or relatively light compared to some other negligent act causing another's death).

Posted by: DFoley | Jan 27, 2011 12:03:26 PM

That's a good thought, but I'm not sure I agree that we're not necessarily talking about retribution in either of those cases. There are many kinds of retribution, but let's assume that a retributivist theory is one in which desert is a relevant factor in deciding how much punishment someone ought to get.

Why isn't it the case that someone who is quadriplegic is less deserving of punishment than someone who is not? You might say, because whatever the D did to deserve punishment does not depend on his being a quadriplegic -- that it's the same act done with the same mens rea. But we often impose harsher sentences and milder sentences based on factors which have nothing to do with the particular act/mens rea that gave rise to the charge. You might then say, sure, but we think about those reasons in non-retributivist terms (we talk in terms of deterrence reasons, or reasons of dangerousness). But I think we think about those other reasons not only on the grounds of e.g., dangerousness. For example, when we take a D's record into account for purposes of sentencing, it isn't only, or even often, because we think that a past record evinces greater dangerousness. It's because we are allowing the background circumstances of a D's life to "pollute" what we think he actually deserves. Likewise for the quadriplegic, only here it works in mitigation, not aggravation. Perhaps we shouldn't do this, but I think it's often the case that we do, and we always have.

Posted by: Marc DeGirolami | Jan 27, 2011 12:06:08 PM

DFoley, your comment made me think of a recent case where the D was convicted of sexual abuse of animals -- several dogs. Whatever the guidelines say that one ought to receive for that kind of crime (I think the sentence was something like 90 days), would it be appropriate to factor in the horrible shame that someone would likely feel just in virtue of the conviction in fashioning a just (deserved) punishment? And what if someone did not feel that shame? Would it then be proper to give the top end of the sentencing range? I seem to be asking lots of questions in this post/comments that I don't mean to be rhetorical -- I really don't know.

Posted by: Marc DeGirolami | Jan 27, 2011 12:30:08 PM

This is an interesting idea. I suppose my further questions are:

1. If we look at retributivism as involving desert, and a punishment given on behalf of the community, CAN we thereby reduce a sentence where some sort of punishment is given by someone who has been injured by the original crime as in your scenario? No punishment has been meted out by the community, and the state is allowing another person's injustice to serve in place of justice.

2. In regards to upward mitigation, suppose the girl's mother, witnessing the emotional trauma, thereby kills herself, which would not have happened otherwise. Unless I remember my tort and criminal law too far off, the defendant would bear responsibility not only for the rape, but for the suicide as well. However, if it is the defendant's responsibility, why would he not similarly be responsible for the kidnapping and imprisonment, under a foreseeable cause idea?

3. Suppose a certain penalty is death, such as for aiding and abetting an enemy (treason). An American citizen is convicted of aiding the Taliban, and during time in prison, is water-boarded for information. Should the penalty be mitigated? To what? Less deadly death?

4. Finally, suppose someone is convicted to a long prison term, say life in prison or 50 years+. During their time in prison, they are brutally raped by another inmate, similarly a ward of the state, and therefore state-controlled. Does the polluted sentencing idea require a lesser punishment for the raped prisoner? It would seem to me that it would, and would this not encourage staging of such violence, similar to collusive spouses under the fault system of divorce?

Posted by: Jonathan | Jan 27, 2011 1:06:47 PM

"What if, after the rape, X had, in the ensuing car chase, crashed into a tree, and as a result he had become a quadriplegic? Would it be improper for a judge to consider the D's quadriplegia in reducing his sentence -- thinking only about retributivist reasons?"

Also, I do not think it would be proper for a judge to consider this. It comes as a result of X's actions and is a result of attempting to avoid responsibility for them. I am not sure "deus ex machina" punishment is something to take into account. (Unless of course, death is the outcome of the tree impact - sentencing a corpse is difficult. Maybe the Ancient Greek way of exposing the corpse to the vultures?)

Posted by: Jonathan | Jan 27, 2011 1:10:04 PM

This discussion reminds me of William Gaddis's line ('"you get justice in the next world; in this world you have the law"). [see: http://www.williamgaddis.org ] I actually don't like it when judges try to do too much 'justice' and I'd prefer they stick to the law, so count me in the clean driven snow camp. Why I'd favor narrow-ranged sentencing guidelines. Let the "justice" thoughts come from the people/legislature in setting the guidelines generally.

Posted by: DFoley | Jan 27, 2011 3:46:31 PM