Wednesday, November 26, 2008

When Options are Coercive

My FindLaw column this week discusses an unusual probation condition imposed by a Texas judge on a woman convicted of injuring her child by omission (by failing to protect her daughter from the father's violence and subsequently failing to seek medical care for resulting injuries). The judge ordered the woman not to conceive and bear a child during her ten years on probation. My column addresses the question whether such a condition violates the probationer's fundamental right to procreate.

In this post, I want to speak more generally about the "alternatives enhance wellbeing" argument that played some role in the judge's assumption that because he could have incarcerated the probationer, it followed that a probation condition limiting her procreation rights must have been constitutionally acceptable. The reasoning takes this form: if I may impose X (e.g. imprisonment) upon you, then it follows that I may offer you the choice of X or Y (e.g. your forgoing procreation).

There are a number of problems with this formulation. One is that there is an important distinction between imposing a (permissible) punishment or burden, on the one hand, and extorting behavior through threats, on the other. The latter triggers desperation on the part of the person offered the choice, and such desperation can lead to compromised and autonomy-violating decision-making. Because imprisonment, even where permissible (itself a presumption that I challenge more directly in my column), is terrifying to people, they may be willing to do or refrain from doing many things that would otherwise fall outside the range of acceptable choices to avoid it. This coercion is different in kind from that entailed in a simple sentence.

Take a very different illustration. Parents of adult children sometimes provide their offspring with financial support and other times refuse to do so. It is within a parent's rights to decide how to handle children's requests for money. What is far less clear is that a parent may legitimately use the promise of money (or the threat of its withholding) to compel adult children to marry a particular partner or shun another. That is, refusing to give one's children money only seems like a greater imposition than an offer to give money if but only if the child breaks off an engagement with a partner of whom the parent disapproves. The adult child's choice of a mate is not the parent's business, even though the decision whether to share money with the adult child is. If we permit a parent to utilize promises and threats of cash to pose alternatives to their children, we are sanctioning a level of manipulation and control that is ugly and destructive, in the guise of expanding a child's alternatives.

A second problem with the "alternatives enhance wellbeing" argument is that it is possible to threaten a lot more "legitimate" harm than one could possibly inflict and thereby to impose burdens by menu that would never be permissible if imposed directly. To be more concrete about it, the State is in a position to threaten many more people with incarceration than it could actually incarcerate (though the numbers on both scores are growing rapidly). Because no one individual can call the State's bluff, though, it is in the interests of each individual to relinquish whatever liberties will permit him or her to remain outside of prison. With the ability to offer such choices, however, the State can now -- for example -- effectively sterilize (by offering sterilization as an alternative to prison) many more people than it could realistically have incarcerated. The notion, then, that the sterilized people are better off than they would otherwise have been is false, because it is premised on the possibility of their having all been incarcerated if they had said "no" to sterilization, and they could not in fact have all been so incarcerated.

As food for thought, I will now suggest that plea-bargaining is an example of the flawed nature of the "alternatives enhance wellbeing" argument. In theory, every person charged with a crime has the right to a trial by jury before he may be punished for the alleged crime. In reality, however, the State lacks the personnel to provide trials for all of the people currently charged with crimes in the U.S. (whether under state or federal law). One response to this state of affairs might be to scrutinize the criminal law and cut it down to cover only those actions which are truly harmful (rather than including what many view as "victimless" activity, such as prostitution or drugs), so that everyone charged with an offense can realistically go to trial. A second -- more familiar -- response to the scarcity of the trial resource, is to offer most people charged with a crime the choice of either going to trial and thus facing an extremely severe potential penalty if found guilty or forgoing a trial and receiving a more lenient sentence. By offering these alternatives, the State enables itself to classify more activities as crimes and to classify already-criminal activities as more serious crimes (subject to more severe punishment) than it could otherwise do (in a universe in which it had to be able to provide actual trials to every defendant who wanted one). Rather than permitting defendants to avoid severe punishment, then, the practice of plea-bargaining in truth may permit the State to impose the penalties that would normally have followed a trial as a "lenient" penalty in exchange for waiver of the right to trial. Effectively, then, the criminal law leverages threats that it cannot truly carry out against everyone to deprive most people of what would otherwise be theirs. This is the alchemy of alternatives.

Posted by Sherry Colb