The significance of private burdens and lost benefits for a fair-play analysis of punishment

New Criminal Law Review

Volumn 12, Issue 1, 2009, Pages 1-42

  Bayern, Shawn J ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 66249099548     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2009.12.1.1     Document Type: Article

References (103)

1. For an example of such a study, as well as a discussion of the distinction between repentance, forgiveness, and pardon, see Meir Dan-Cohen, Revising the Past: On the Metaphysics of Repentance, Forgiveness, and Pardon, in Forgiveness, Mercy, and Clemency 117 (Austin Sarat & Nasser Hussain eds., 2007).
2. See id. at 117-18 (outlining conditions that remove opportunities for appropriate "guilt," "resentment," and "stigma," which I take to be three sorts of blame that might arise from a crime).
3. Commentators' explicit language does sometimes nod toward the time difference. See, e.g., R.A. Duff, Trials and Punishments 210 (1986) ("[Fair-play theory attempts to explain] the relationship between present penal suffering and past criminal wrong-doing."). Nonetheless, the view of punishment commentators adopt tends to be what I have called temporally static: The analyses do not consider the potential importance of events that occur between crime and punishment.
4. See, e.g., Stephen P. Garvey, "As the Gentle Rain from Heaven": Mercy in Capital Sentencing, 81 Cornell L. Rev. 989, 1012-13 (1996) ("[S]trong retributivism ... places an obligation on the sentencer to impose the punishment the offender deserves.... [W]eak retributivism ... merely authorizes the sentencer to impose the deserved punishment.")
5. cf. also Mark C. Murphy, Natural Law in Jurisprudence and Politics 145 (2006) (using the term "extra-strong retributivism" to refer to the view that punishment is mandatory to redress crime and "strong retributivism" to refer merely to the notion that "the point of punishment is to respond to the crime by punishing").
6. A step in my analysis involves elucidating the boundaries of relevant benefits and burdens considered by fair-play theory, and this step might separately shed light on the theory's plausibility. For instance, to characterize fair-play theory (as I do in Part II) as concerned with distributive fairness but sensitive only to some kinds of distributional effects is to suggest that fair-play theory makes particular choices about which kinds of distributive changes are important and which are not. (I describe these choices more precisely in Part II.) Greater attention to these boundaries is important, and it can of course help us see whether fair-play theory in its current form (and the punishment that it justifies) is morally acceptable in the first place.
7. As an analogy, consider the objection to fair-play theory that it does not adequately explain punishment for cruelty to animals, an offense that seems to lead to no unfairness to humans. See Richard Burgh, Do the Guilty Deserve Punishment, 79 J. Phil. 193, 205 (1982)
8. C.L. Ten, Crime, Guilt, and Punishment 63 (1987). Accepting for argument's sake the objection's validity (even though I have doubts about it), one possible interpretation (which Burgh and Ten adopt) is that Morris's theory is an incomplete account of punishment, and that we may have to look elsewhere to understand or justify punishment.
9. See Burgh, supra, at 205
10. Ten, supra, at 63. But another interpretation, of course, is that it is unjust to punish people for cruelty to animals (even if other means to prevent such cruelty are desirable) - at least without an expanded notion of fairness that incorporates animals' well-being. I don't mean to take a position on punishment for animal cruelty here; I just mean to show that more than one interpretation of a limitation in fair-play's analytical range is possible.
11. The association between punishment and fair play is thought to originate with Herbert Morris. See Herbert Morris, Persons and Punishment, 52 The Monist 475, 477-80 (1968), reprinted in Herbert Morris, On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology 31, 33-36 (1976). Others have advanced similar accounts, and many believe that fair-play theory in some form is the most appealing nonconsequentialist defense of punishment.
12. See Leo Zaibert, Punishment and Retribution 117 & n.67 (2006) (listing sources and, though critical himself of fair-play theory for other reasons, finding that it is still popular and recognizing that when legal rights are violated - as opposed to entirely private cases of punishment, like those between friends or by parents to their children - "a case can be made that punishment sometimes is justified because it helps restore the cooperative playing field to an initial level of fairness")
13. Michael Moore, Placing Blame: A General Theory of the Criminal Law 106, 170 n.29 (1997) (referring to fair-play theory as "plausible" and stating that it "may survive the by-now voluminous criticisms made of it")
14. Wojciech Sadurski, Theory of Punishment, Social Justice, and Liberal Neutrality, 7 L. & Phil. 351, 356 (1989) ("[Punishment] is a re istribution after [a] wrongful distribution ... has taken place.")
15. George Sher, Desert 69-90 (1987)
16. John Finnis, Natural Law and Natural Rights 263 (1980) ("[P]unishment rectifies the disturbed pattern of distribution of advantages and disadvantages throughout a community....")
17. Jeffrie Murphy, Retribution, Justice, and Therapy 77-78 (1979) (defending a form of retributivism based on the notion that "it is important to guarantee that those who disobey will not thereby gain an unfair advantage over those who obey voluntarily")
18. John Cottingham, Varieties of Retribution, 29 Phil. Q. 238, 246 (1979) ("[T]he fair play theory ... seems to me to have the best chance of providing a non-utilitarian rationale for the practice of punishment."). The fair-play account of punishment has no shortage of critics. Some of the criticism centers on whether the account is retributive or even nonconsequentialist in the first place.
19. See Zaibert, supra, at 118
20. Cottingham, supra, at 243, 246. Even Morris's original account speaks at least in passing of deterrence.
21. See Morris, supra, at 478 (referring to the "incentive ... provided individuals to restrain their inclinations," which decreases "the incidence of persons taking what they do not deserve"). I am, however, not concerned here with the appropriate classification of the fair-play account; nothing I say here is meant to depend on precisely how "retributive" or backward-looking the theory is.
22. Others attack the theory on substantive grounds. See, e.g., Matt Matravers, Justice and Punishment: The Rationale of Coercion 52-72 (2000) (summarizing and building upon criticism of the theory).
23. For many, questions about what sort of "benefit" accompanies offenses - either in general, see David Dolinko, Some Thoughts About Retributivism, 101 Ethics 537 (1991),
24. or in particular cases, like unintentional crimes, see Zaibert, supra, at 122-23 - lead to doubt that benefits from crime have an important role to play in justifying punishment. Because my goal here is not specifically to defend fair-play theory, these general criticisms of it are beyond my scope, but the explanation of possible benefits that I provide in Part III may be useful to help frame the discussion among critics.
25. Matravers makes a separate criticism of fair-play theory: He believes it has failed as an independent account of the justice of punishment, not tied to a particular substantive account of criminal law. But even accepting Matravers's conclusion that fair-play theory is "incomplete" and that it depends on a particular "understanding of society [and] the character of the benefits and burdens enjoyed by, and imposed on, citizens," id. at 53 - that is, that it is tied to a substantive account of criminal law and does not provide "a relatively independent justification of punishment,"
26. id. - this article's analysis still applies. That is, even a fair-play theory tied to a substantive account of criminal law would need either to accept or to wrestle with my conclusions that private punishment and lost benefits may remove the moral justifications for state-impose punishment.
27. Morris, supra note 7, at 478.
28. I do not take seriously supposed conceptual limitations on "punishment" that work merely as redefinitions of the term - e.g., the suggestion that punishment is not punishment if it is not imposed justly in response to a criminal offense. Cf. H.L.A. Hart, Prolegomenon to the Principles of Punishment, in Punishment and Responsibility 1, 5 (1968) (discussing what Hart calls a "definitional stop").
29. This does not imply that all results of a crime, however distant or attributable to other events, are relevant to fair-play analysis. See the final paragraph of Part II.B, infra; cf. also infra note 32.
30. Morris, supra note 7, at 478.
31. Of course, that people recognize the causal connection between crime and punishment is important if punishment is meant to deter crime, and perhaps for other consequentialist or expressive reasons. Consider, for instance, the following analysis: Some stranger insults you in a public place. You try to console yourself by imagining that the obnoxious person has a miserable life. The response is not wholly satisfying, however, because you want the transgressor to be miserable because of her transgression against you so that she links the two and sees how she has brought the suffering on herself by being bad. Sherry Colb, Oil and Water: Why Retribution and Repentance Do Not Mix, 22 Quinnipiac L. Rev. 59 (2004). At the risk of sounding too forgiving among those who discuss retributive punishment, I have to admit that the situation Colb describes is somewhat alien to me; I am typically perhaps so focused on trying to end encounters with erratic and insulting strangers that I have no wish, in the moment or thereafter, that their lives are miserable. But even accepting on consequentialist grounds Colb's notion that a causal link between offense and punishment is important because of what that link makes people realize about offenses, my goal in emphasizing causation is different: I am saying that when we pay attention to views of justice that I shall call transactional, the problem with a transgressor suffering for reasons unrelated to the transgression is simply that the transgression itself still goes unpunished. That is, I shall suggest that fair-play theory identifies a transactional framework in which only certain features of the world matter in making decisions about fair punishment.
32. Philosophical Perspectives on Punishment at xxxvi (Gertrude Ezorsky ed., 1972). Translating such a view into Morris's terms, the general burdens offenders may have faced throughout their lives could offset the specific benefits they draw from crimes. I do not mean specifically to argue against this view, and I certainly do not mean to suggest that the background hardships of an offender's life are irrelevant to questions of punishment, as, for instance, the U.S. Sentencing Guidelines Manual does. See U.S. Sentencing Guidelines Manual §5H1 (2005) (ruling out "education," "skills," "mental and emotional conditions," "physical condition, including drug or alcohol dependence," "employment record," "race," "sex," "socio-economic status," and "lack of guidance as youth" as generally relevant in determining an offender's criminal sentence). As we shall see, my argument is instead that even within an account like Morris's, which does not pay attention to all information globally available about an offender, punishment may be unjust in the situations I consider in this article.
33. Daryl Levinson has used the term "transaction" similarly in a different context. See Daryl J. Levinson, Framing Transactions in Constitutional Law, 111 Yale L.J. 1311, 1313 (2002) ("The prevailing, classically liberal, model of tort, contract, and property cases features atomistic individuals who interact only at the point of a discontinuous event, sharply limited in space and time.").
34. For a more general and differently focused discussion on alternative ways to "construct" criminal activity, see generally Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1981).
35. My explanation of fair-play theory as concerned with discrete "transactions" differs somewhat from the more conventional view that fair-play punishment simply assumes that the distribution existing before an offense occurs is just. See, e.g., Matravers, supra note 7, at 55 ("[A]lthough if there is to be a moral justification for punishment in the idea of restoring some distribution of benefits and burdens it must be the case that the pattern of distribution to be restored is just, what defines such a distribution is not a question that fair play theory need address." Both views avoid evaluating the fairness of the preexisting distribution, but a transactional view does not explicitly assume that that distribution is globally fair - an assumption that seems severely questionable in many societies. On a transactional view, punishment is appropriate not because it restores perfection but because it eliminates an identifiable transactional unfairness. Similarly, preventing someone from cutting in line or taking two meals at a conference does not imply that that person lives in a just society; it just establishes rules that are meant to govern discrete transactions fairly. It is important to recognize a potential danger of transactional thinking: It shifts focus away from global fairness. That Nazi officials were "just following orders" is an extreme example of this, but the pattern may well occur in contexts that range from discussions of property-rights theory to affirmative action. The solution, however, is not necessarily to abandon all transactional thinking but instead to determine its appropriate bounds - the conditions under which it justly applies. Such a determination is of course beyond the scope of this article, but it is something I plan to elaborate in future work.
36. See, e.g., Robert E. Scott & George G. Triantis, Incomplete Contracts and the Theory of Contract Design, 56 Case W. Res. L. Rev. 187, 191 (2005) ("Over the past twenty years or so, back-end obstacles have driven a large body of the theorists' models: Namely, that some states of the world are not verifiable to a court, even though they may be observable to both the parties.").
37. Cf. Rafferty v. State, 799 So. 2d 243, 248 (Fla. Dist. Ct. App. 2001) ("It cannot be said that the legislature intended lesser punishments when the victims of offenses are family members or loved ones.")
38. State v. Lacey, 553 So. 2d 778, 780 (Fla. Dist. Ct. App. 1989) (rejecting the argument that effects on a defendant's "professional future" should affect sentencing); cf. also cases cited infra note 28.
39. Discretion in sentencing (which may incorporate considerations of mercy as well as justice) is another matter. In exercising discretion, sentencing judges do (as they should) at least occasionally look to harms that offenders suffer from non-state actors as a result of their offenses. See, e.g., Kate Murphy & Alexei Barrionuevo, Fastow Sentenced to 6 Years, N.Y. Times, Sept. 26, 2006, at C1 ("Judge Hoyt said he had to 'examine the relationship between justice and mercy.' Although Mr. Fastow had 'drunk the wine of greed,' the judge said, he had also been the 'subject of great persecution,' including anti-Semitic slurs and personal threats."). Interestingly, at least one federal judge has entertained the possibility, albeit in the abstract and in passing, that an offender may deserve less state punishment "because he or she will receive extraordinary informal punishment in his or her ethnic community" - although "[p]resumably courts would grant requests for departure based on punishment outside of the legal system only extremely rarely."
40. United States v. Yu, 954 F.2d 951, 958 & n.5 (3d Cir. 1992) (Becker, J., dissenting).
41. Judge Becker reasoned that convictions typically lead to social and professional losses, see id., and presumably it was therefore sensible to suppose that the federal sentencing guidelines were crafted with such informal losses in mind. As a result, "only the most unusual cases of extralegal punishment, whether culturally related or not, could warrant departure."
42. Id. My analysis will suggest that on a fair-play analysis, at least Fastow's court was right to consider what it did: Harms suffered at the hands of private parties as a result of an offense help eliminate whatever imbalance between benefits and burdens exist.
43. Recall that even under my view, nothing should prevent the state from blaming X; indeed, X should be convicted, for he never was before.
44. It is important to understand that my example of the fastidious vigilante who constructs a private prison is not meant to defend or justify vigilantism. The example is not meant to raise a question about whom we'd prefer to exact punishment; the question is simply whether it is just for the state to impose hard treatment after another entity has already imposed an appropriate measure of it (in this case, against the state's wishes). Indeed, my view does not instrumentally encourage vigilantism, and at least as a theoretical matter it disincentivizes private punishment to the extent that it reduces the likelihood or severity of official punishment for those who suffer at the hands of vigilantes. I would not expect the effects of such a disincentive to be significant in most cases, but no instrumental concern about promoting vigilantism arises from my analysis.
45. For example, Jaime Malamud-Goti has emphasized the importance of state punishment in locales that had previously allowed offenders to commit crimes with impunity: Imagine a world in which certain people would never be punished no matter what they did to others. This environment depicts to a certain extent the Argentina or Chile of the seventies. In those days, the government systematically turned a blind eye to right-wing torturers and abductors. Subjected to a campaign of constant terror and having their complaints systematically shunned by the police and the courts, most non-sympathizers within the regime wound up sensing they were impotent before evil. Most of these people believed their ideas and activities justified their mishaps and those who did not had no alternative but to repress their own rage. Punishing the perpetrators would have raised [victims'] self-respect and esteem by either restoring their lost dignity or validating the outrage of the latter by conveying to them that they were right. Jaime Malamud Goti & Emma Zunz, Punishment and Sentiments, 22 Quinnipiac L. Rev. 45, 50 (2004). Dan Markel has offered a more general account of the communicative role of punishment: By making credible the threat to impose some level of punishment, the state is giving its best reasonable efforts to reduce the plausibility of individuals' false claims of superiority. The state's coercive measures communicate the norm of equal liberty under the law and they are directed to the person most in need of hearing it: The offender.
46. Dan Markel, State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of the Death Penalty, 40 Harv. C.R.-C.L. L. Rev. 407, 430-32 (2005).
47. Markel claims that this role in part "explains why the state, rather than the victim or her allies, must be the agent imposing punishment." Id. at 427. Whether this is correct for other theories of punishment is beyond my scope, but it is by no means clear to me that in cases where a defendant has already suffered private burdens as the result of a crime, the state need do anything more than convict and acknowledge these prior burdens in order to communicate the correct norms and prevent offenders from claiming a false superiority over others. In other words, state concern is state concern, regardless of whether the state is the source of hard treatment. And suffering can be sufficient to eliminate impunity and unfair dominance, even if the suffering doesn't come from the state.
48. John Finnis, The Restoration of Retribution, 32 Analysis 131, 133 (1972).
49. In such cases, offenders may show themselves to have changed sufficiently to place them in the "benefits no longer relevant" category discussed in Part III, infra. And from a consequentialist perspective, this kind of remorse - if genuine - suggests the offender will be less dangerous in the future than a counterpart who does not exhibit it.
50. Of course, offenders may also fear state punishment. The particular burden associated with fearing punishment is a special case in some respects. For one thing, the state's criminal-law regime is responsible in part for this fear, so in some sense an offender who experiences this burden is being subjected to official punishment; at least, the state is a cause of the punishment. But this doesn't matter when we consider that if the state doesn't follow through on its threat to punish crimes, offenders will not fear such punishment; the burden of "fear of punishment" can't be imposed without actual punishment, except in the unlikely event that the state can ensure something akin to what Meir Dan-Cohen calls "acoustic separation" in as general a situation as this one. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984) (defining "acoustic separation" as a situation in which those who apply rules and those who are subject to them occupy what amount to "different, acoustically sealed chamber[s]").
51. It is interesting to note that at least in principle, private burdens that result from crime ought to be just as relevant to several other accounts of punishment as they are to fair-play theory. I have already identified some reasons this may be true for communicative or expressive theories of punishment. See supra note 21. It is also true of consequentialist accounts that emphasize deterrence: To the extent that the burdens I discuss in this section are real, and to the extent offenders can expect them ex ante, it makes sense for those burdens to offset official punishment; that is, it makes sense for the state to reduce official punishment (barring such things as administrative concerns) precisely to the degree that the offender has suffered private burdens as a result of her crime. Of course, private burdens may be less calculable or predictable than official punishment and thereby provide a weaker deterrent. Still, with - say - rampant vigilantism, there might be, from a consequentialist perspective, too much punishment (in terms of instrumental deterrence) under a regime whose official stance is to ignore the possibility of such vigilantism in determining sentences.
52. See, e.g., Peter Westen, Course Materials for "Problems in Criminal Law Theory," Week 5, Question 6 (2004) (on file with author).
53. Christopher New, Time and Punishment, 52 Analysis 35 (1992).
54. See Holscher v. Young, 440 F.2d 1283, 1290 (8th Cir. 1971) ("Due process does not require that Holscher be credited with the time spent in prison under the prior illegal conviction of a crime unrelated to the present case. Holscher relies on the case of Hill v. Holman, 255 F. Supp. 924 (M.D. Ala. 1966), but despite the broad language used in that opinion, the credit for time served which was allowed in that case was for time spent in prison under a prior illegal sentence, against a sentence later imposed for the same crime.")
55. United States ex rel. Watson v. Commonwealth & Common Pleas Court, 260 F. Supp. 474, 475 (D. Pa. 1966) ("[W]e cannot conceive of a constitutionally mandated system of accumulated prison credits. Other courts have concurred in our incredulity. Such a requirement of credit for time served under vacated sentences would enable recidivists to obtain release or to avoid incarceration altogether by the simple device of pleading a prior invalid imprisonment. Even in those cases where a sentence is vacated and the relator is re-tried for the very same offense, there is no constitutional requirement of credit for the time already served." (citations omitted))
56. State v. Calderon, 661 P.2d 781, 789 (Kan. 1983) ("[Under statute, a] criminal defendant sentenced to incarceration [must] be given credit for all time spent in custody solely on the charge for which he is being sentenced.").
57. In discretionary sentencing (which again may reflect mercy in addition to justice), courts have occasionally been willing to consider prior harsh but officially nonpunitive treatment at the hands of the state, even on distinct charges. See, e.g., Kirk Semple, Padilla Gets 17-Year Term for Role in Conspiracy, N.Y. Times, Jan. 28, 2008, at A14 ("Over prosecutors' objections, Judge Cooke gave Mr. Padilla credit for the three and a half years he spent in a naval brig in South Carolina after his arrest in 2002 on suspicion of being involved in the dirty bomb plot, accusations that were dropped. In detention, Mr. Padilla underwent prolonged isolation and intensive interrogations in conditions the judge called 'harsh.' The conditions, she said, 'warrant consideration in the sentencing.'"). The correct treatment of Padilla's sentence (as a matter of justice, not mercy) depends, under my analysis, on how related the dropped charges were to the charges for which he was convicted and sentenced.
58. Morris, supra note 7, at 478.
59. Cf. supra note 10 and accompanying text.
60. John L. Mackie, Retribution: A Test Case for Ethical Objectivity, in Philosophy of Law 667 (Joel Feinberg & Hyman Gross eds., 1991).
61. Cf. E. Allan Farnsworth, Your Loss or My Gain? The Dilemma of the Disgorgement Principle in Breach of Contract, 94 Yale L.J. 1339 (1985) (arguing that contract law should not require those who breach contracts to disgorge their full gains because the breach may not be a "but for" cause, and is often only a joint cause, of breaching promisors' gains). Farnsworth also discusses what he calls "remote cause" - a cause far away (typically in time) from its result. We might imagine an offender who is able to achieve his goals only because of the mental satisfaction that he gets from having committed a crime many years earlier; it is nonetheless hard to say that all the offender's achievements are relevantly a benefit from the crime.
62. Mackie, supra note 31.
63. See Morris, supra note 7, at 477-78.
64. Perhaps a cleaner way of stating this view is that the relevant benefit from crime is the offender's renunciation of a burden on his action. Cf. Ten, supra note 6, at 55 (using similar language and describing the relevant benefit from crime as "the voluntary renunciation of the burden of restraining oneself from violating the law"). I elaborate this view of benefits further infra under the rubric of "appropriation of excess freedom."
65. Burgh, supra note 6, at 203.
66. This sort of satisfaction may be associated with the psychology of "thrill seeking," thought by some to help explain the rates of adolescent crime. See, e.g., Commentary, Thrill and Adventure Seeking and the Age Distribution of Crime, 90 Am. J. Soc. 1326 (1985).
67. Cf. Thomas Morawetz, Adam, Eve, and Emma, On Criminal Responsibility and Moral Wisdom, 22 Quinnipiac L. Rev. 23, 28 (2004) (suggesting the gain from crime can be "even just the satisfaction of having broken a rule"). I associate this sort of satisfaction with the characteristic ancient Greek philosophers called (pleonexia) - roughly greed or covetousness. Pleonexia is generally taken to be the opposite of the sentiment of "justice" (dikaiosune).
68. In discussing psychological benefits, I don't mean to imply that they are frequently experienced by all kinds of offenders, nor am I making any positive claims about criminal psychology. My goal is simply to consider possible benefits so that my temporal analysis addresses them. Also, in suggesting that a sophisticated neural scan might answer questions of psychological fact, I don't mean to assume that this is true or to discount puzzles in determining the nature of psychological benefits in all their multiplicity. Cf. Mark Kelman, Hedonic Psychology, Political Theory, and Law: Is Welfarism Possible?, 52 Buff. L. Rev. 1 (2004) (discussing these puzzles in detail).
69. See David Dolinko, Some Thoughts About Retributivism, 101 Ethics 537, 547 (1991) ("In what way does the lawbreaker 'gain' this freedom? In one sense, the lawbreaker has perhaps revealed that he has a kind of 'freedom' by exercising it - by demonstrating that he is able to violate the prohibition. In this sense, however, he must have been 'free' from the prohibition even before his lawless act (or he could not have committed it!)....").
70. See supra note 35.
71. Ten, supra note 6, at 55.
72. Id.
73. Finnis, supra note 22, at 132. Compare "wrongful self-preference" with the psychological enjoyment of "getting away with crime" that I discussed in supra note 38 and accompanying text.
74. See Ten, supra note 6, at 54-55.
75. For sources showing that courts and commentators take this for granted, see Paul R. Hoeber, The Abandonment Defense to Criminal Attempt and Other Problems of Temporal Individuation, 74 Cal. L. Rev. 377, 378 n.1 (1986) (collecting treatises and similar sources)
76. cf. Model Penal Code §1.01 (Proposed Official Draft 1962) (for purposes of statutes of limitations, crimes are "committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated").
77. Hoeber, supra note 46, at 378.
78. To make this example more (potentially) relevant, consider an offender who, using science-fictional, brain-altering drugs, removes all memory of a particular crime (and everything related to it) and retains no other benefit from it.
79. Cf. text accompanying infra notes 65-66.
80. Mark Reiff, in an extended argument about the relationship between punishment and compensation, seems to adopt the view that punishment is a form of compensation; he takes to its logical conclusion the view that the benefits from crime always equal the costs to the victim and suggests that punishment should only make up what compensation can't. Mark R. Reiff, Punishment, Compensation, and Law: A Theory of Enforceability 133 (2005) ("When full compensation is not only available for the beneficiary's injuries but also actually paid, the beneficiary will by definition be made indifferent to the violation, and no retributive punishment would be due."). Of course, Reiff does not suggest that compensation is always available or that it will in fact always be paid - but he does, through at least part of his argument, equate "benefit from the crime" with "burden to the victim." See id. at 133-34.
81. Cf. Harris v. Time, 237 Cal. Rptr. 584, 587 (Cal. Ct. App. 1987) (treating an increase in ex ante probability as "valuable consideration" in contract law).
82. In fairness, one who focuses only on material benefits need not adhere to such a strict view. For one thing, those who focus on material benefits may not be interested in benefits at all, except as a proxy for the loss to the victim. As I have suggested, however, it is not clear that commentators with such a focus hold a view consistent with the fair-play view of retributivism, which centers on offenders, not victims. Still, the strict material-only view that I've discussed in the text can perhaps be tempered by a more thorough account of chances and probabilities. For instance, one might adopt the view that the only relevant benefit from financial crimes is the improved probabilistic position of the offender, irrespective of whether any material benefit now remains from this improved probabilistic position. A gambler who steals 100 chances at a game and wins on one of them would, on this view, have benefited from all the chances, rather than just from the one on which she won. That is, an offender can misappropriate a chance - something with a particular expected value - and any events subsequent to this reflect simply the normal workings of the market and not anything related to the crime. An offender who loses $200 that he just stole thus has not lost the full financial benefit from the crime. In committing the crime, the offender was of course taking a chance (though not necessarily consciously) that he might lose the money he stole; one takes this chance whenever one possesses currency. The material benefit from this crime was this chance, and the offender successfully appropriated it. Punishment is imposed to counteract the benefit associated with the chance. (Again, the offender might owe the victim restitution, but fairplay punishment does not aim to address the inequitable distribution between the offender and the victim specifically.) The problem with this view is that it is hard to understand what motivates it other than a broader conception of the potential benefits from crime. In order to retributively punish the misappropriation of chances that have been lost by the time of punishment, we need to believe that the offender retains some benefit from these chances. This benefit is not, strictly speaking, material; it does not physically remain at the time of punishment. Instead, it corresponds to something else the offender has but shouldn't have - the enjoyment of the bet, or the appropriation of freedom, or the indulgence of will, or the notion that it was unfair for the offender to have had the illicit chance in the first place, even though it did not pan out. Accordingly, I do not treat this view separately; instead, it can be folded into my discussion of psychological and more ethereal benefits.
83. Cf. Kelman, supra note 15, at 612.
84. Note that even some kinds of abandoned attempts raise problems for those who are committed to the view that a crime must have a particular "point of no return" tied to the crime's formal elements. See generally Hoeber, supra note 46 (refuting such a strict interpretation of abandonment).
85. Model Penal Code §223.2 (Proposed Official Draft 1962).
86. I refer in particular to the sort of circumstances that would amount to "a complete and voluntary renunciation of ... criminal purpose" under Model Penal Code §5.01(4) (Proposed Official Draft 1962).
87. Some consequentialist analyses might share the conclusions of a fair-play retributivist approach in situations where a crime is abandoned after the fact: Just as with abandonment of attempts, offenders who try to reverse a crime shortly after committing it prove themselves to be less dangerous to society than those who don't. Moreover, there is little reason to try to deter crimes that are
88. Compare this observation with Finnis, supra note 22, at 133 (noting that what is important about punishment is "not, formally speaking, ... infliction of pain (nor ... incarceration), but rather ... the subjection of will (normally, but not necessarily, effected through the denial of benefits and advantages of social living: Compulsory employment on some useful work which the criminal would not of himself have chosen to do would satisfy the definition)").
89. Id. at 132-33.
90. Id. at 134.
91. Id.
92. See Morris, supra note 7, at 478
93. Matravers, supra note 7, at 57.
94. As a matter of substantive criminal policy, it is not clear to me that administrative concerns militate strongly toward bright-line "points of no return." Crimes could sensibly be prosecuted without reference to a particular point at which the offender crossed a line. Why, then, does our law seem to have an unshakeable notion that there must be such a point? A partial answer may be that many of the most salient crimes are indeed irreversible, in both the lay sense and in the impossibility of an offender's taking any action subsequent to the crime that intentionally eliminates the benefit the offender has received from it. Most obviously, murders cannot be undone. The same is true of most violent crimes against people, for though they may lack the physical permanence of murder, violent crimes often have psychological consequences that cannot immediately be removed. Another possible explanation is that crimes must be defined with formal points of completion in order to limit the state's discretion - that for reasons of liberty, people must have assurances that they will not be prosecuted for lawful activities. But if that is the case, bright-line rules regarding crimes' completion could still exist to rule out criminal prosecution in some cases, rather than to rule in certain activities as offenses.
95. I consider explanations of statutes of limitations grounded in the loss or increasing irrelevance of benefits over time more plausible than many that are typically offered. For instance, it is often said that criminal statutes of limitations protect defendants who would have difficulty putting forth a case after time has destroyed evidence and clouded minds. See, e.g., Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure §18.5(a) (2d ed. 1999) (citing Model Penal Code §1.07 (Proposed Official Draft 1962)). Despite its prevalence, this is an odd claim in view of the burden of persuasion in criminal cases: the fading of evidence should help defendants rather than hurt them, and certainly juries could factor in the reliability of old evidence in deciding whether there was reasonable doubt of defendants' guilt.
96. Rebecca Dresser, Personal Identity and Punishment, 70 B.U. L. Rev. 395, 413 (1990).
97. Dan-Cohen, supra note 1, at 121-24.
98. Id. at 9-12.
99. My argument aims to avoid puzzles that arise from clashes between common conceptions of identity and constructed conceptions that may perform useful analytical work but remain counterintuitive to apply. I do not mean to suggest that I ultimately disagree with Parfit's or Dan-Cohen's views, only that my analysis here does not depend on them.
100. Important distinctions may follow from the different reasons a state may decriminalize activity and my suggestion about what decriminalization indicates (namely, that the benefits offenders once received from actions that are no longer crimes are no longer considered unfair or important) may be correct only for certain kinds of changes in the law. It seems at least possible that a state may mean to say, "We no longer consider this action a crime because circumstances have changed, but we still care very much about prior occurrences." As a result, it is difficult to discuss this case in the abstract. It is sufficient for the analogy I'm drawing that at least sometimes, a state may wish to say, "X is no longer a crime, and no prior commissions of it are relevant to us any longer."
101. Cf. Conklin v. Sloss, 150 Cal. Rptr. 121, 125 (Cal. Ct. App. 1978) (allowing an invasion-of-privacy claim to go forward against a defendant who published details about a murder of which the plaintiff had been convicted twenty years earlier;
102. "Plaintiff has alleged facts which, if proven to the trier of fact, would indicate that he has "'reverted to the lawful and unexciting life led by the great bulk of the community,...'" (quoting Restatement of Torts §867 cmt. c (1938)). In Conklin, the plaintiff had already been convicted of a crime; the case nonetheless highlights a situation in which an offender may well derive no "benefit" from a past crime.
103. Cf. generally Douglas N. Husak, Why Punish the Deserving, 26 Noûs 447, 458 (1992) (suggesting that it might be more "important" to restore equilibrium between benefits and burdens in some cases than in others).