Accountability in criminal justice

Abstract

Despite philosophical efforts to model criminal justice as a practice of moral accountability, justice and moral accountability are odd bedfellows. Justice is a virtue of political society, while holding individuals morally to account for their wrongs is personal. As a virtue of political society, justice is a collective achievement. Yet the state is drawn into the realm of individual moral accountability when it comes to criminal justice. This is not going well. The United States is currently experiencing an era of extreme punitiveness, as indicated by the high number of incarcerated people and the severity of many criminal sentences.1 I will not attempt fully to diagnose or discuss the causes of this predicament, but I will address a difficulty surrounding the notion of moral accountability in criminal justice, which I believe to be an aggravating factor. The difficulty stems from the political sensitivity of standards of accountability in criminal law to the rights of victims and potential victims. This victim-responsiveness desensitizes the law to ethical considerations that mitigate the accountability of many criminal lawbreakers. Ethically mitigating factors include background injustice—which represents a collective failure.2 Background injustice mitigates individual accountability for criminal wrongdoing because it is plausibly understood as a cause of crime. The law does not acknowledge this. It is not surprising that a robust individual responsibility paradigm is fundamental to criminal law, even under unjust conditions. A practice of individual liability for criminal wrongdoing supports the rights and interests—of victims and potential victims—which criminal law aims to protect. But it also leads to confusion about the aims of punishment. Philosophers of punishment have equated the state's role in upholding rights-protecting rules, using criminal law, with a retributive practice of individual accountability. This is a mistake. The permissibility of applying criminal justice sanctions, when allowed by justice, should not be confused with giving criminal wrongdoers morally deserved punishment.3 The political function of law—to uphold the rights of equal citizens to be free from criminal violation—should not be equated with a moral practice of retributive justice. Failing to appreciate the gap between the political function of criminal law and a moral practice of personal accountability decreases empathy for criminal lawbreakers. While this is not the sole or even a primary driver of excessive punishment, it is my contention that decreased empathy for criminal lawbreakers, on the theory that they deserve punishment, serves to normalize the practice of punishment, even when it is extreme. Guiding my discussion will be some lessons from John Rawls about how to think about the political nature of justice and legitimate law. The practice of individual accountability is often grounded in claims about what individuals deserve, but, as Rawls argued, desert is not a plausible foundation for justice. Turning away from desert and its companion notion of retribution leads us to non-desert-based practices of accountability. Appealing among them is restorative justice. I conclude with a plea for retracting the punitive role of the state in the service of restorative justice. A restorative practice of accountability could help to alleviate tensions between the political and moral aspects of criminal law. When law is legitimate, it is underwritten by important political values and adequately if not perfectly meets the demands of democratic justice. I will start with Rawls's instructive theory of democratic justice and how the rule of law, including criminal law, fits into it. This will help us to understand how background injustice could threaten the moral accountability of criminal lawbreakers, namely, by restricting their law-abiding life prospects and interfering with the opportunities they are entitled to as a matter of justice. The causal relevance of unjust deprivation to crime rates threatens the moral accountability of criminal lawbreakers. Rawls that democratic justice is not a matter of deserved and Justice be a matter of moral because on many factors be to not deserve in the and the or it deserve in what Rawls to as not deserve or for and as not deserve the or that Yet factors a life a to how a to in The and to a are in an unjust society, are to the for and and even the and in United in the in the United States for and for The for and to a opportunities and life Yet even in a society, and which are will the a and how a to or this Rawls and I that the of for and should not be of as a matter of to that notion even a should be to the of of society, including the This of justice as a role for the criminal justice that is with of retributive justice. that is by giving wrongdoers the punishment they morally Rawls this because desert as the of justice. it to believe that even a to the practice of punishment in