Morris on paternalism and punishment

Law and Philosophy

Volumn 18, Issue 4, 1999, Pages 345-361

  Dolinko, David ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 0033480833     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505229     Document Type: Article

References (87)

1. Herbert Morris, On Guilt and Innocence (Berkeley: University of California Press, 1976), p. 34.
2. Id.
3. Although the article presents the benefits-and-burdens model of punishment sketched in the text above, its concern is not to argue for that model's superiority to alternative moral justifications of punishment but to demonstrate that wrongdoers have a right to be punished rather than subjected to "therapeutic treatment."
4. See, e.g., John Finnis, "The Restoration of Retributivism," Analysis 32 (1972), pp. 131-135; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971), pp. 166-169; George Sher, Desert (Princeton, N.J.: Princeton University Press, 1987), pp. 69-90. For a recent response to criticisms of the model, see Richard Dagger, "Playing Fair with Punishment," Ethics 103 (1993), pp. 473-488.
5. See, e.g., John Finnis, "The Restoration of Retributivism," Analysis 32 (1972), pp. 131-135; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971), pp. 166-169; George Sher, Desert (Princeton, N.J.: Princeton University Press, 1987), pp. 69-90. For a recent response to criticisms of the model, see Richard Dagger, "Playing Fair with Punishment," Ethics 103 (1993), pp. 473-488.
6. See, e.g., John Finnis, "The Restoration of Retributivism," Analysis 32 (1972), pp. 131-135; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971), pp. 166-169; George Sher, Desert (Princeton, N.J.: Princeton University Press, 1987), pp. 69-90. For a recent response to criticisms of the model, see Richard Dagger, "Playing Fair with Punishment," Ethics 103 (1993), pp. 473-488.
7. See, e.g., John Finnis, "The Restoration of Retributivism," Analysis 32 (1972), pp. 131-135; Jeffrie Murphy, "Three Mistakes About Retributivism," Analysis 31 (1971), pp. 166-169; George Sher, Desert (Princeton, N.J.: Princeton University Press, 1987), pp. 69-90. For a recent response to criticisms of the model, see Richard Dagger, "Playing Fair with Punishment," Ethics 103 (1993), pp. 473-488.
8. See, e.g., Andrew von Hirsch, Past or Future Crimes (New Brunswick: Rutgers University Press, 1985), p. 57; George Fletcher, "Why Kant?," Columbia Law Review 87 (1987), p. 422; Marcus Dubber, "The Pain of Punishment," Buffalo Law Review 44 (1996), p. 560 (1996); Mark A. Michael, "Utilitarianism and Retributivism: What's the Difference?," American Philosophical Quarterly 29 (1992), p. 173.
9. See, e.g., Andrew von Hirsch, Past or Future Crimes (New Brunswick: Rutgers University Press, 1985), p. 57; George Fletcher, "Why Kant?," Columbia Law Review 87 (1987), p. 422; Marcus Dubber, "The Pain of Punishment," Buffalo Law Review 44 (1996), p. 560 (1996); Mark A. Michael, "Utilitarianism and Retributivism: What's the Difference?," American Philosophical Quarterly 29 (1992), p. 173.
10. See, e.g., Andrew von Hirsch, Past or Future Crimes (New Brunswick: Rutgers University Press, 1985), p. 57; George Fletcher, "Why Kant?," Columbia Law Review 87 (1987), p. 422; Marcus Dubber, "The Pain of Punishment," Buffalo Law Review 44 (1996), p. 560 (1996); Mark A. Michael, "Utilitarianism and Retributivism: What's the Difference?," American Philosophical Quarterly 29 (1992), p. 173.
11. See, e.g., Andrew von Hirsch, Past or Future Crimes (New Brunswick: Rutgers University Press, 1985), p. 57; George Fletcher, "Why Kant?," Columbia Law Review 87 (1987), p. 422; Marcus Dubber, "The Pain of Punishment," Buffalo Law Review 44 (1996), p. 560 (1996); Mark A. Michael, "Utilitarianism and Retributivism: What's the Difference?," American Philosophical Quarterly 29 (1992), p. 173.
12. Herbert Morris, "A Paternalistic Theory of Punishment," American Philosophical Quarterly 18 (1981), pp. 263-271.
13. Id. at p. 264.
14. Id. at p. 265.
15. Morris, supra note 1, p. 38.
16. Id.
17. See Russ Shafer-Landau, "The Failure of Retributivism," Philosophical Studies 82 (1996), pp. 289, 313 n. 3; John Braithwaite and Philip Pettit, Not Just Deserts (Oxford: Oxford University Press, 1990), pp. 158-159.
18. See Russ Shafer-Landau, "The Failure of Retributivism," Philosophical Studies 82 (1996), pp. 289, 313 n. 3; John Braithwaite and Philip Pettit, Not Just Deserts (Oxford: Oxford University Press, 1990), pp. 158-159.
19. Morris, supra note 6, at p. 264.
20. R. A. Duff, "Penal Communications: Recent Work on the Philosophy of Punishment," Crime and Justice 20 (1996), p. 50.
21. See text accompanying notes 64-69 infra.
22. Morris, supra note 6, at p. 265.
23. Russ Shafer-Landau, "Can Punishment Morally Educate?" Law and Philosophy 10 (1991), pp. 189-219.
24. Hampton's theory was set out in "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984), pp. 208-238. I will not be concerned here with Hampton's views, which resemble Professor Morris's in spirit but differ in a number of significant respects. For example, Hampton presented her "moral education" theory as sufficient, by itself, to justify the practice of punishment (id. at pp. 208-209). (She subsequently changed her mind and became "a convert to the pluralist approach to the justification of punishment." Hampton, "Correcting Harms Versus Fighting Wrongs: The Goal of Retribution," UCLA Law Rev. 39 (1992), p. 1659 n. 2).
25. Hampton's theory was set out in "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984), pp. 208-238. I will not be concerned here with Hampton's views, which resemble Professor Morris's in spirit but differ in a number of significant respects. For example, Hampton presented her "moral education" theory as sufficient, by itself, to justify the practice of punishment (id. at pp. 208-209). (She subsequently changed her mind and became "a convert to the pluralist approach to the justification of punishment." Hampton, "Correcting Harms Versus Fighting Wrongs: The Goal of Retribution," UCLA Law Rev. 39 (1992), p. 1659 n. 2).
26. Hampton's theory was set out in "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984), pp. 208-238. I will not be concerned here with Hampton's views, which resemble Professor Morris's in spirit but differ in a number of significant respects. For example, Hampton presented her "moral education" theory as sufficient, by itself, to justify the practice of punishment (id. at pp. 208-209). (She subsequently changed her mind and became "a convert to the pluralist approach to the justification of punishment." Hampton, "Correcting Harms Versus Fighting Wrongs: The Goal of Retribution," UCLA Law Rev. 39 (1992), p. 1659 n. 2).
27. Shafer-Landau, supra note 16, at p. 205 n. 25.
28. Id. at p. 210.
29. Id.
30. Morris, supra note 6, p. 265.
31. Id. at p. 271.
32. See note 1 & accompanying text supra.
33. Shafer-Landau, supra note 16, at p. 206.
34. Morris, supra note 6, at p. 268 (emphasis added).
35. Shafer-Landau, supra note 16, at p. 206 n. 25.
36. Morris, supra note 6, at p. 271.
37. Id. at p. 265.
38. I am setting aside, for the sake of argument, what I have elsewhere argued are grave difficulties besetting the whole notion that criminals derive an "unfair advantage" from their misdeeds which punishment aims at removing. See Dolinko, "Some Thoughts About Retributivism," Ethics 101 (1991), pp. 545-549.
39. Morris, supra note 6, at p. 265.
40. Id. at p. 266.
41. As a real-life illustration, consider teenager David Cash, who witnessed at least the beginning of his friend Jeremy Strohmeyer's fatal attack on a seven-year-old girl in a casino rest room in May 1997. Cash neither intervened to stop the assault nor went to police afterward once Strohmeyer had told him he had killed the girl. Interviewed by a reporter after Strohmeyer's arrest, Cash stated: "I'm not going to get upset over somebody else's life. I just worry about myself first. I'm not going to lose sleep over somebody else's problem." He also told the reporter that his involvement in the well-publicized case "has made it easier for him to score with women." Los Angeles Times, July 19, 1998, article beginning on page Al. Here is someone strikingly deficient in "attach[ment] to the good" and empathy for others - yet if he could be convicted of any crime at all it would most likely be a relatively minor offense such as misprision of felony or accessory after the fact.
42. Morris, supra note 1, p. 34.
43. Id., p. 39.
44. Morris, supra note 6, p. 265.
45. Id.
46. Id., p. 268.
47. Indeed, why limit our promotion of this "good" to criminals? Suppose someone as little "attached to the good" as David Cash (see note 32 supra) has (as yet) committed no crime at all. Is that sufficient reason to withhold from him the "hard treatment" that could lead him to what we are assuming is the enormously important benefit of becoming "a morally autonomous person attached to the good"? One likely response - that only those who actually commit crimes can be eligible for "hard treatment" because only they have forfeited their right to freedom - is a response Morris might well shun, in view of his doubts about the notion of forfeiture that this response relies upon. (Morris, supra note 6, at p. 270.) ("Hard treatment" is Joel Feinberg's characterization of the deprivations imposed upon offenders as punishment. See "The Expressive Function of Punishment," in Joel Feinberg, Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970), pp. 95-118).
48. Morris, supra note 6, p. 265.
49. Id.
50. Id.
51. Id.
52. Id.
53. Id. (emphasis added).
54. Id. (emphasis added).
55. Id.
56. Id.
57. Id.
58. Id., p. 266.
59. He believes that "what it [punishment] seeks to promote is among the most important, if not the most important, of human goods." Id., p. 271.
60. "[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Cruzan v. Director, Missouri Dept. of Public Health, 497 U.S. 261, 277 (1990). "[G]eneral principles of tort law ordinarily treat unconsented medical care as a battery. Indeed, unconsented treatment is tortious even if it is harmless or beneficial." Philip Peters, "The Illusion of Autonomy at the End of Life: Unconsented Life Support and the Wrongful Life Analogy," UCLA. Law Rev. 45 (1998), p. 685. See Bouvia v. Superior Court, 179 Cal. App. 3d 1127 (1986) (holding that a competent adult has the right to refuse medical treatment even where such treatment is necessary to save or prolong her life).
61. "[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Cruzan v. Director, Missouri Dept. of Public Health, 497 U.S. 261, 277 (1990). "[G]eneral principles of tort law ordinarily treat unconsented medical care as a battery. Indeed, unconsented treatment is tortious even if it is harmless or beneficial." Philip Peters, "The Illusion of Autonomy at the End of Life: Unconsented Life Support and the Wrongful Life Analogy," UCLA. Law Rev. 45 (1998), p. 685. See Bouvia v. Superior Court, 179 Cal. App. 3d 1127 (1986) (holding that a competent adult has the right to refuse medical treatment even where such treatment is necessary to save or prolong her life).
62. "[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment." Cruzan v. Director, Missouri Dept. of Public Health, 497 U.S. 261, 277 (1990). "[G]eneral principles of tort law ordinarily treat unconsented medical care as a battery. Indeed, unconsented treatment is tortious even if it is harmless or beneficial." Philip Peters, "The Illusion of Autonomy at the End of Life: Unconsented Life Support and the Wrongful Life Analogy," UCLA. Law Rev. 45 (1998), p. 685. See Bouvia v. Superior Court, 179 Cal. App. 3d 1127 (1986) (holding that a competent adult has the right to refuse medical treatment even where such treatment is necessary to save or prolong her life).
63. I am assuming for the sake of argument that punishment can, in fact, confer on those punished the "moral good" Morris has in mind. That punishment is genuinely capable of serving such a curative goal is challenged by Joel Feinberg in Harmless Wrongdoing (New York: Oxford University Press, 1988), pp. 300-305, in his discussion of Jean Hampton's "moral education" theory of punishment.
64. Morris, supra note 6, p. 268.
65. I set aside any discussion of whether there is an opportunity to enlighten the criminal before the time at which the decision on whether to undergo "hard treatment" must be made.
66. Id., p. 269.
67. Id., p. 265.
68. I ask if they had to do it all over again, would these guys still pledge themselves to a gang? Rider nods his head . . . "Yeah. Yeah, I would. Not because of the way my life turned out, but because of some of my homies. I'm a reflection of them, just like they are of me. I'm proud to be a Blood." Leon Bing, Do or Die (New York: Harper Collins Publishers, 1991), p. 218.
69. See "The Don is Done," by Jeffrey Goldberg, New York Times Magazine, January 31, 1999, p. 27.
70. Morris, supra note 6, p. 268.
71. Id. at pp. 265, 267.
72. See the examples of techniques with which criminals rationalize and excuse their conduct in Dolinko, "Is There a Rationale for the Fifth Amendment?" UCLA Law Rev. 33 (1986), pp. 1135-1136, and the sources cited there.
73. Morris, supra note 6, p. 264.
74. Id., p. 270.
75. Id., p. 265.
76. Id., pp. 265-266.
77. Morris, supra note 6, p. 269.
78. Morris might insist that all he acknowledges is the possibility of instances in which purely physiological treatment, like removing a tumor, could restore autonomy to a person who, prior to the treatment, was not "autonomous" - e.g., a person prone to "outbursts of violence over which the person had no control." Morris, supra note 6, p. 269 (emphasis added). My reply would be this: we know that organic brain damage can result in a person who is not simply afflicted with some discrete, isolable condition that the person herself experiences as beyond her control and alien to her personality. Rather, brain damage can alter the "personality" itself and cause a fairly thoroughgoing transformation of the person's entire character, leaving her grossly impaired in the eyes of outside observers while she experiences her new condition as simply how she is. For an example, see the melancholy tale of Phineas Gage, recounted in Antonio Damasio, Descartes' Error (New York: G.P. Putnam, 1994), pp. 3-19: an efficient, capable worker prior to suffering severe frontal-lobe brain damage, Gage became impulsive, irresponsible, foul-mouthed, and dishonest after his accident. If brain damage can so transform one who was initially an autonomous person attached to the good, why could it not someday be possible for brain "repair" to take an irresponsible, impulsive criminal and transform him into an autonomous lover of the good?
79. Morris might insist that all he acknowledges is the possibility of instances in which purely physiological treatment, like removing a tumor, could restore autonomy to a person who, prior to the treatment, was not "autonomous" - e.g., a person prone to "outbursts of violence over which the person had no control." Morris, supra note 6, p. 269 (emphasis added). My reply would be this: we know that organic brain damage can result in a person who is not simply afflicted with some discrete, isolable condition that the person herself experiences as beyond her control and alien to her personality. Rather, brain damage can alter the "personality" itself and cause a fairly thoroughgoing transformation of the person's entire character, leaving her grossly impaired in the eyes of outside observers while she experiences her new condition as simply how she is. For an example, see the melancholy tale of Phineas Gage, recounted in Antonio Damasio, Descartes' Error (New York: G.P. Putnam, 1994), pp. 3-19: an efficient, capable worker prior to suffering severe frontal-lobe brain damage, Gage became impulsive, irresponsible, foul-mouthed, and dishonest after his accident. If brain damage can so transform one who was initially an autonomous person attached to the good, why could it not someday be possible for brain "repair" to take an irresponsible, impulsive criminal and transform him into an autonomous lover of the good?
80. Morris, supra note 6, at pp. 265-266.
81. Id., at p. 265.
82. Id., p. 269.
83. Id.
84. Id. at p. 265.
85. Id. at pp. 270-271.
86. Id. at p. 271.
87. Id. at p. 269.