Thursday, October 14, 2010

Instrumental versus Justice Reasons for Holding a Position

By Sherry F. Colb

In my column for this week, I consider the justice question whether people who knowingly transmit HIV through unprotected sex with unknowing partners ought to be subject to criminal punishment for their behavior.  In the column (spoiler alert!), I conclude that for various reasons, criminalization is not appropriate.

In this post, I want to consider the implications of a competing impulse that I have, which leads me to believe (some of the time, at least) that knowing transmission of HIV (or any other serious illness) through unprotected sex is a grievous harm that deserves to be punished.

One important reason for opposing criminalization is the view (which I share) that it is more likely to deter people from getting tested than it is to motivate them to share their HIV status with prospective sexual partners.  If that is true, then I might believe that people do, in general, deserve criminal punishment for knowingly transmitting HIV to unknowing victims, and I might still decide to sacrifice a legitimate retributive objective to serve the greater good (by protecting more people from transmission).

The impulse to sacrifice retribution in order to maximize social welfare helps explain a variety of phenomena that are quite distinct from the criminalization of HIV.

One example is the decision to give diplomatic recognition to a political figure who has previously engaged in violent, reprehensible conduct but who provides the best or only hope for bringing peace to a particular country or community.  One might point to such a figure as Gerry Adams of the I.R.A. as an example of this phenomenon.

Another example might help explain at least some opposition to capital punishment.  On this approach, a person might view those murder convicts sentenced to death as entirely deserving of death (and perhaps even the tremendous anxiety associated with time spent on death row, a separate feature of suffering associated with the death penalty).  Nonetheless, a person might think that the costs of having a death penalty (including such things as the monetary expense of heightened security, the perception by victims' families that if their loved one's killers are not executed, this reflects a devaluation relative to other victims whose killer's do get sentenced to death, and the risk of wrongful execution of an innocent) make such deserved retribution a luxury we cannot afford.

A third example might account for some people's opposition to all sorts of censorship.  Apart from the libertarian approach to free speech (in which we view every individual as having an entitlement to voice his or her views, no matter how hurtful or otherwise destructive), there is also a position that holds that some speech truly is so outrageous and harmful that its speaker deserves to be punished.  Yet we choose not to punish these speakers because we worry that the impact of such censorship on the public would be to inhibit valuable expression by people.  On this account, we have an instrumental reason to refrain, for example, from punishing hate speech, on the assumption that such speech is nonetheless unworthy of protection.

And a fourth example will be familiar to Fourth Amendment scholars (and others):  the exclusionary rule.  One might take the view that admitting illegally obtained evidence against a criminal suspect is perfectly appropriate and well-deserved by the criminal suspect (particularly if the crime is serious).  Yet one might nonetheless support suppression of evidence taken in violation of the Fourth Amendment as a means of maximizing police compliance with Fourth Amendment requirements (that searches and seizures be reasonable), a compliance that will maximize the privacy of innocent individuals in the future, at the cost of reducing the odds that a guilty person will be rightfully convicted of his crimes in the present.

In practice terms, of course, if one opposes criminalization of HIV transmission, opposes capital punishment, supports awarding statesman status to former terrorists, opposes censorship, and supports the exclusionary rule, it may not ultimately matter that much whether one opposes/supports such things for instrumental reasons or for justice reasons.  The bottom-line position is what it is.

Yet the difference is significant, in my view, because it acknowledges the justice claims that those on the other side of the issue make, in a way that other sorts of opposition do not.  For a proponent of the exclusionary rule to say, for example, that a murderer is no less deserving of punishment by virtue of a police officer's failure to obtain a search warrant before entering the murderer's house, is to share with the exclusionary rule opponent the view that there is something fundamentally wrong with suppression.  This means that if one can address the instrumental concerns of the proponent in some other way, then one might be able to persuade the proponent to comne over to the other side.  Sharing fundamental assumptions about justice and injustice might accordingly prove to be significant not only to theory but to consequences as well.


Sam Rickless said...

Dear Sherry,

I concur with the thoughts in your post, but I'm not sure I agree with the arguments against criminalization in your Findlaw column. Here are just a few thoughts.

1. You point out that knowingly shooting a gun out of a window is, in relevant respects, unlike knowingly subjecting someone else to a significant risk of contracting HIV. It is true, for example, that firing a gun under these conditions is intrinsically anti-social, whereas having unprotected sex is not. But (a) it is possible for a single person to habitually engage in a series of unprotected sexual liaisons with others. Does this person deserve greater punishment than someone who subjects only one person repeatedly to the relevant risk? This is not clear to me, even though the first kind of behavior is anti-social while the second kind is not. But also (b) it is possible for a single person to habitually discharge a firearm only in the presence of loved ones (without aiming at them, but subjecting them to a significant risk of harm). Do we think that the fact that this sort of behavior is not anti-social is relevant to whether the habitual shooter should be punished? I think not.

You worry about privacy intrusions. But there are mechanisms in the law for keeping certain very sensitive facts away from the public eye, without dispensing with justice. Also, are you as worried about investigative privacy intrusions in the case of habitual non-anti-social shooters? Suppose, for example, that the shooter who only shoots in the presence of loved ones does so when engaged in some sort of embarrassing private activity that is related to the shooting. Should we give up on prosecuting such a shooter because the only way to find him guilty requires some sort of investigative privacy intrusion?

2. Re perverse consequences linked to the fact that folks could avoid prosecution by refusing to be tested for HIV in the first place. It seems to me that there is an easy way out of this, at least for HIV-positive folks who *ought to know* that there is a significant likelihood of their having contracting HIV. Ignorance under these conditions is simply no excuse. If I know that I have significant risk factors for HIV (drug use, multiple partners, certain kinds of sexual activity that make HIV transmission more likely), then I *ought* to get tested. Indeed, if we can prosecute those who ought to know, then we provide a powerful incentive to the ignorant to get tested. (None of this, of course, is to deny that education may be a far more effective strategy overall.)

3. Prison rape is a real problem. But the system could deal with this by separating HIV-positive inmates from HIV-negative inmates.

4. You describe what I think of as excusing conditions (I didn't know how great the risk was, it was in the heat of passion, etc.). I think that excuses argue for punishment mitigation, but do not argue for the elimination or diminution of culpability.

5. The alcoholic/drug-addict pregnant woman case is similar in some respects to the reckless HIV-transmission case. But there are also differences that are potentially relevant. For one thing, there is addiction in the one case, lack of addiction in the other. One of the reasons for thinking that criminalization doesn't work in the alcoholic/drug-addict pregnant woman case is that criminalization has no deterrent impact on addicts. But the same sort of reasoning is not available in the case of reckless HIV-transmission.


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