Wednesday, November 30, 2011

A Clash Of Justice and Nonviolence

Posted by Sherry F. Colb

My Justia Verdict column this week takes up the U.S. Supreme Court's recent decision to grant review in . Miller v. Alabama and Jackson v.  Hobbs.  The two cases together raise the question whether the Eighth Amendment ban on cruel and unusual punishments permits a mandatory sentence of life imprisonment without the possibility of parole (LWOP) for homicides committed by fourteen-year-old perpetrators.  In my column, I discuss different features of the cases before the Court that may each play a role in disposing of the question presented, including the notion that "death is different" (whether the death comes in the form of homicide or, more conventionally, the State's penalty for homicide), the categorical or discretionary significance of  a mitigating factor like youth, and the interaction between culpability and consequences.  In this post, I would like to focus on  a different dimension along which Miller and Jackson pose a dilemma for the Justices and for society more generally:  the tension between justice and non-violence.

In an earlier blog post, I  discussed Steven Pinker's book, The Better Angels of Our Nature, and his analysis of the ongoing process by which violence has steadily declined among human beings over the ages.  Since I last discussed it, I am much further along in the book and wish to draw again on one of its insightful observations.  Before doing so, however, I wish to flag (perhaps for a future post) my disappointment in Pinker's discussion of animal rights.

Unlike other sections of the book, in which Pinker provides a strong critique of human violence in all its forms as well as a well-rounded account of its steady decline, his section on animal rights seems underdeveloped, both celebrating people's concern and compassion for animals and minimizing the scope of what changes the future must hold if we are to keep faith with that concern and compassion.  The section dismisses historical movements opposing animal consumption as driven entirely by purity and superstition rather than ethical commitments.  It also engages in guilt-by-association reasoning (asserting, for example, that "Hitler was a vegetarian," which he was not and which would be irrelevant, in any event).  The section draws the unsupported conclusion that eschewing animal products as a way of supporting animal rights is ineffectual and "symbolic."  The section also suggests that truly valuing animals' lives would somehow lead to the devaluation of mentally disabled human beings, an idea that is entirely at odds with the commitment of animal rights proponents to respecting the interests of sentient beings regardless of how well they perform on measures of human intelligence.  The idea of euthanizing "unfit" humans is anathema to those who favor animal rights (but perhaps attractive to those who would classify individual worth by a utilitarian metric).

I had expected and hoped that Dr. Pinker, just as a matter of respect for a movement that is on all fours (so to speak) with global progress toward non-violence, would examine animal rights and veganism with  precision and openness rather than assuming that the publicity stunts of People for the Ethical Treatment of Animals (PETA) represent what animal rights has to offer.  If Pinker is truly interested in learning more about this area, Tom Regan's book, Empty Cages and Gary Francione's Introduction to Animal Rights:  Your Child or the Dog are both excellent.

I provide this caveat, because I anticipate that many people unfamiliar with animal rights and veganism will read Pinker's otherwise excellent book and come away with an impoverished and distorted impression of  the area and its integral role in non-violence.  Having said that, I am still finding most of the book edifying and riveting, and I understand (as Pinker himself discusses in other chapters) that holding both a commitment to non-violence and a desire to continue to engage in a comfortable and familiar activity (such as consuming the products of animal suffering and slaughter) can give rise to cognitive dissonance and lead a person to classify the latter as something falling outside the category of objectionable violence.  Another term for such motivated reasoning is "monster-barring."

Returning to the juvenile LWOP cases before the Court, Pinker's book examines the relationship between justice and peace.  Though people have sometimes argued that if one is interested in peace, one ought to pursue justice ("no justice, no peace"), Pinker explains how a dogged pursuit of justice can be the enemy of peace.  One powerful example is the treatment of Germany in the wake of World War I, in what might be called a triumph of justice and retribution that arguably sowed the seeds of German disaffection and rage that flowered into the rise of Hitler and World War II.

At the end of the second World War, by contrast, the victorious allies allowed many culpable actors to get away with what they had done, while trying and punishing only a small and select number at Nuremberg.  As one result of this willingness to accept less than full justice, Germany has developed into a country that Hitler would find unrecognizable.  Pinker discusses a similar process at work in post-Apartheid South Africa.

Does this mean that pursuing justice is an entirely destructive endeavor?  Of course not.  Pinker explains the utility of our retributive instincts well in noting that if there were no cost at all to predatory behavior, we would likely encounter a great deal more private violence and predation, a state of affairs that would in turn yield cycles of retaliation of the sort that characterized medieval society.  Justice and its restraint may accordingly require a fine balancing act that can yield the greatest peace dividend if correctly calibrated.

What does any of this have to do with child offenders?  Consider Evan Miller, the fourteen-year-old who killed Cole Cannon by setting Cannon's trailer on fire after brutally beating him into immobility.  A taste for justice might say "punish Evan Miller with great severity, and show no mercy."  Miller deserves no better, because he showed no mercy to a victim who lay bleeding and would die of smoke inhalation, a victim whose last words posed the question why Miller was doing this to him.

A taste for justice might say that no matter what Evan Miller could some day become, he has earned himself a life of punishment for what he already did and perhaps ought to be grateful that he cannot be executed for it, a punishment that he richly deserves and that would inflict far less suffering on him than he inflicted on his own victim.

To restrain our impulse for justice might be instead to understand that Evan Miller, as a fourteen year old, did not yet have the mental capacity that an adult has to control his impulses, to put himself in the shoes of his victim, and to take into account the long-term impact of his behavior.  To be willing to forgo some justice is to observe that Evan Miller was himself a victim of extreme violence in his own home.  And perhaps most importantly, to choose less justice in Miller's case is to give Miller an opportunity to change and to become a more peaceful person than he was at fourteen.  The reality is that by the time Miller is in his 50's or 60's, we have every reason to expect that he will no longer be a dangerous and violent person who must be confined as a public safety measure.

To allow ourselves to care about future dangerousness, however, we must cool our drive for justice and allow the pointlessness of incarcerating someone who poses no threat to anyone wash over us.  Even as the Court considers whether LWOP is either categorically too severe (or whether it must at least be amenable to case-by-case reduction through mitigation), however, it is useful to remember that Evan Miller will spend years in prison as punishment for his crime and that a restrained but nonetheless robust retribution for crimes need not be the enemy of peace and progress toward a less violent world.


  1. You seem to presume that consideration of mitigating factors is a matter of mercy, not justice:

    "To restrain our impulse for justice might be instead to understand that Evan Miller, as a fourteen year old, did not yet have the mental capacity that an adult has to control his impulses, to put himself in the shoes of his victim, and to take into account the long-term impact of his behavior."

    Conversely, you refer to "justice and retribution" as if they were much the same thing.

    I think you do your argument in favor of mitigation a disservice. Justice need not depend entirely on the actus reus and minimal mens rea, surely? A "just" sanction can be smaller for a 14-year old than for an adult, for exactly the reasons you list. Most adults would agree it is "just" that a 14-year old have fewer freedoms and rights than he/she will as an adult. Juvenile justice laws are the flip side of that social consensus.

  2. Sherry, I think your Justia column is fantastic. I have just a few comments.

    1. I agree with the basic idea suggested by Unknown. It is not just to punish someone who is excused by virtue of the lesser culpability engendered by the diminished capacities you so clearly describe in your Justia article. Indeed, I would go further and say that it is not even consistent with retributivism to punish those who are excused.

    2. I think the main reason that Germany has developed into a country that Hitler would not recognize is *not* that many vicious Nazi perpetrators were left alone. The main reason is that the German government consciously undertook an intensive program of education designed to emphasize the horrors of Nazism. It was a massive wrong not to have gone after those who played a prominent role in the Nazi government or party, merely on the grounds that doing so would have slowed down Germany's economic development. It is a shameful part of the history of the West that vicious criminals and psychopathic anti-semites were left free to enjoy the rest of their lives without being brought to justice. Indeed, it is one very good reason to reject consequentialism (in any of its varieties, including utilitarianism).

  3. Thanks to Unknown and to Sam Rickless for your helpful comments. I think you both may be right that justice is well served by taking into account a minor's diminished capacities. Maybe one need not cut back on justice to show mercy.

    On the other hand, I am drawn to the idea that everyone who commits an outrageous and impulsive crime of violence (including an adult offender) is, to some degree, less capable of moral reflection and other-oriented self-restraint than others in the population who have behaved more pro-socially. Diminished capacity may therefore be a regular concomitant of the sort of behavior we view as demanding retribution. This is why, in discussing justice and retribution, I would distinguish between the capital murder convict who played a peripheral role in the robbery that led to the murder (and whose punishment may seem unjust), on one hand, and the capital murder convict who viciously killed his victim, on the other. The latter seems to "deserve" very harsh punishment, in a purely retributive sense, despite his impulsiveness (maybe his inability to reflect on his conduct is what many would call a character flaw).

    Perhaps this is simply a matter of semantics, but it does seem to me that most violent adults in the criminal justice system are functionally very much like violent teens and that the class of violent offenders is inherently a class of diminished capacities.

    On the question of incomplete retribution against participants in the Holocaust, I do not agree with your view of things, Rickless, and I suppose the empirical question about why Germany changed may not be answerable. My view, for what it's worth, is that yes, the German government played a heroic role in educating people and changing the national character, but I am not convinced that this would have happened at all if there had been a more massive retributive response by the Allies to the Nazi atrocities. And if I am right, then the decision to restrain the retributive impulse (no matter how justified that impulse) was an enormous blessing not only to the German people but to the world.

    As for consequentialism, I tend to view incomplete retribution in somewhat broader terms. I think that most people are capable of both great evil and of great good (and of more banal versions of both) and that a more forgiving and forward-looking attitude can transform people who might otherwise seem irredeemably bad. This is less a matter of "let's just do what brings us the best outcome, regardless of what is right" than it is a decision to treat even the perpetrator of outrageous cruelty and injury as potentially reachable and as worth reaching.

    I think a person's natural response to being unequivocally condemned is to defend himself and resist the narrative in which he or she is a bad person. And if that narrative is extended broadly to a large group of participants (and collaborators) in an atrocity, then the entire people may resist change.

    People who view themselves as part of a vilified group tend to experience loyalty to the group (just look at the perplexing reactions to Penn State). Greater restraint/incomplete retribution can allow individuals within a group the safe space to feel honest remorse for their actions, to feel less tied to the group of perpetrators, and ultimately to undergo change and become the sorts of people who would no longer either act or stand by the atrocities that he or she previously helped perpetrate.

    Finally, thanks to Sam Rickless for your kind words about my column.

    I must stop procrastinating my exam-writing, so I will not be participating further in this exchange. However, I have found it thought-provoking and edifying, and I hope no one will interpret my silence as disparagement.

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