Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D235 Date:8/10/12 Time:23:18:42 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice Matt Matravers* A. Introduction I take it that, as the Marxists used to say, it is ‘not an accident’ that academic (and other) interest in ‘prevention’ is on the rise. No doubt many things have prompted it, amongst which the use by the state of mandatory sentences, sexual predator laws, control orders, and situational crime control are but a few. Philosophers, criminal law theorists, criminologists, and sociologists have been vocal in declaring a new era: a ‘culture of control’, a ‘risk society’, or the rise of ‘preventionism’.1 The alarm is being sounded not only because of particular instances of the preventive use of state power that strike most civilized people as abhorrent (for example, the seemingly indefinite detention without trial of people in Guantanamo Bay), but because of the sighting of a new trend in which a concern for preventing future harms that in part rests on, and in part helps to generate, a split between ‘us’ (the safe and law abiding) and ‘them’ (the dangerous) threatens to ride roughshod over liberal respect for others and for their rights. Moreover, this trend is occurring despite three decades in which ‘just deserts’ and ‘proportionality’ have ruled the theoretical roost. Thus, the dominant theoretical ways of thinking about criminal justice policy are not well equipped to cope with criminal justice practice in this area (other than by denunciation on grounds of lack of proportionality).2 My aim in this chapter is to offer the beginnings of a normative account of preventive justice; an account that may be able to make better sense of current policies even if the sense it offers is not one that would be recognized by the authors of those policies. To do this, I want first to consider what it is that is at stake when we think about ‘preventive justice’. Of course, we should not get too hung up on * I am grateful to the participants at the Preventive Justice workshop where this chapter was first aired. I owe a particular debt to Andrew Ashworth, Ambrose Lee, and Lucia Zedner for their comments. Patrick Tomlin kindly agreed to comment on my paper at that event, and even more kindly gave me a copy of what he said; this has proved invaluable in revising it. In all cases, I am sure I have not done enough to answer all the queries. 1 U Beck, Risk Society: Towards a New Modernity (1992); A Giddens, ‘Risk and Responsibility’ (1999) 62(1) MLR 1–10; D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001). 2 On this, see M Tonry, Retributivism Has A Past: Has It A Future? (2011). Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D236 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi Matt Matravers 236 terminological matters, but if we are going to offer an account of some x, we do need to say something about what x is. B. Preventive justice We might think of the term ‘preventive justice’ as simply a descriptive term to cover criminal justice policies concerned with preventing future crimes and, say, ‘pure preventive justice’ as covering those policies that are, to a large extent, concerned only with the prevention of future crimes. Or, slightly more narrowly, as describing those aspects of criminal law and policy that allow the state to ‘bind’, one way or another, those who have not yet committed an offence, but who are reasonably suspected of being about to do so or about to incite others to do so.3 However, to do this is not to preclude normative enquiry. Rather, it invites questions of justification: what justifies this area of law and the policies that flow from it? Once we engage in that kind of enquiry one question appears fairly quickly, which is whether ‘preventive justice’ is a phrase in which the two concepts it invokes—prevention and justice—are in tension. This seems to be the case when we consider that many standard worries about preventive justice policies seem to be grounded in the thought that such policies may conflict with the demands of justice. So, we talk of the need to balance security and justice as if the game is, or is close to, zero-sum such that gains in preventing serious criminal harms can only be had by equivalent losses in just treatment. The debate over Guantanamo Bay is often phrased in this form. No thoughtful person believes the treatment of detainees there is in accordance with justice, but some are prepared to allow that the price paid in justice is worth the gains made in preventing future terrorist harms. On this model, it seems that prevention is one thing, justice quite another. Of course, even on this model, when we pursue the prevention of future harms we do so given sideconstraints of justice. Such a position is fairly standard: we think that, for example, surgeons may do what is best for their patients so that they do not suffer future illhealth, but we do not think that they can do so by harvesting the organs of a third party. Justice here constrains the pursuit of future harm prevention. On this model, ‘preventive justice’ might identify the sub-set of justice concerned with constraining prevention. However, this is surely not the only—or even a plausible— conception of what we mean when we invoke the idea of ‘preventive justice’. Rather, what we have in mind is something more akin to a duty of justice; a duty to prevent future harms. One obvious way to unpack this thought is to consider the functions of the state and of government. In many cases, we think that amongst these functions is the protection of citizens from future harm. Of course we can, and do, debate quite how far such protection should range, to what degree it should be paternalistic, and whether the opportunity costs of one form of protection are worth paying, but 3 G Williams, ‘Preventive Justice and the Rule of Law’ (1953) 16(4) MLR 417–27. Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D237 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice 237 none of that changes the conceptual claim that, at least sometimes, the state has a duty of justice to protect its citizens from future harms. Thus, for example, consider the case of a serious storm approaching an urban area. Here, we might think that the state is required by justice to warn its citizens and to take certain kinds of action to ensure that all are (insofar as possible) offered an equal chance of reducing the degree to which the storm will set back their interests. I think this better accounts for our understanding of ‘preventive justice’ (at least in relation to state policies). It relates to those areas of policy in which the state has a prima facie duty to act to prevent future harms. Of course, this does not mean that the tension between justice and prevention is dissolved. Unless one is an out-andout welfare consequentialist—in which case there cannot be a conflict between what the state ought to do to prevent net losses of welfare and the demands of justice—one confronts the problem that in pursuing much of its raison d’être, the State will have reason to act in ways that prevent future harms, and secure future benefits, for its citizens and the critical issue is whether, and in what way, the state’s actions ought to relate to the demands of justice. C. Justice and aggregation As noted in section B, saying that the state will in some instances have a duty to prevent foreseeable and preventable future harms does not tell us in what instances, or to what degree, or at what cost, and so on. Moreover, it may be that in many cases the successful pursuit of this demand of justice will be in tension with other moral demands (including other demands of justice). For some, often called ‘value pluralists’, such tensions may be ineliminable because values conflict and we cannot satisfy all of them simultaneously; for others the tension may only be apparent and a proper understanding of justice will show how each demand can be made compatible, but that debate need not detain us here. Whatever the truth of value pluralism, thinking through preventive justice requires first that we think through justice. Consider first the formal definition of justice. Justice requires giving to each person that which is properly due to him or her.4 Of course, this does not tell us very much. Like the requirement that we treat relevantly alike things that are relevantly alike, it is purely formal. What is due to people? As we have seen, for the straightforward welfare consequentialist, what is due to each person is simply whatever will maximize welfare overall for all (relevant) persons. Thus, what is due the third party in the surgeon example is to be cut up and what is due the patients is to receive the organs thus ‘harvested’. The reason this is unsatisfactory is that it fails to take proper account of what John Rawls called (in a very useful phrase) ‘the distinction between persons’.5 By contrast, in offering to transport the citizens of 4 The formal definition is often captured in the Latin tag suum cuique tribuere: to allocate to each his own. See B Barry and M Matravers, ‘Justice’ in E Craig (ed), The Shorter Routledge Encyclopedia of Philosophy (2005) 481–6. 5 J Rawls, A Theory of Justice (1971) 27. Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D238 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi Matt Matravers 238 the urban area under threat from the storm to safety, we consider each person’s claim separately. But what is it about human beings in virtue of which we think that what is due to them is to be treated as distinct? The answer is that we regard human persons as agents who are entitled to equal respect. It is in our capacity to choose—in a special way related to reasons—and to act on those choices that our ‘specialness’ lies. To sacrifice one agent for the sake of saving four others is not to treat that agent with the respect that is due to him or her even if overall welfare is improved as a result. Now, it is perhaps possible to think of all state action as grounded in nothing other than respecting rights. That is, assuming we unpack treating people with respect in terms of respecting their rights, the only permissible state action will be that which honours or protects those rights. However, this is implausible; there are many actions that the state might take that will enhance its citizens’ well-being, or promote their interests, that need not be grounded in honouring or protecting rights. Such actions, though, need to be subject to the constraints of respecting rights. This raises a difficult question. Consider the following example: to reduce journey times for many people, and to reduce the risk of injury to some, the state decides to build a bypass that takes road traffic around a city-centre. Let us assume that the only available route for the bypass takes it through an area in which it is tricky, but obviously not impossible, to build. As a result it is probable that some construction workers will suffer harm (they may even be seriously injured). Why, and in what way, is this different from the surgeon case? If we are to respect the liberal notion of justice, the policy of building the bypass must respect the distinctiveness of persons. One way of capturing how it does so is offered by the philosopher Tim Scanlon. Scanlon’s answer is that none of us separately, considering how our own lives might go overall, can reject a principle that allows certain inherently risky activities and social practices given that they are practised with reasonable care. Aggregating ‘within’ each person’s life, as Scanlon puts it, explains this judgement as against aggregating ‘across’ lives, which is what is required—and objectionable—in the surgeon case.6 Moreover, contrasting cases of this kind, Scanlon argues that It is important in understanding our reaction to these cases [cases such as the bypass] to note that they involve failing to prevent accidental injuries rather than either intentionally inflicting harm on a few people, or withholding aid from people who need it, in order to bring small benefits to others. Our sense that it is permissible to undertake these projects also depends crucially on the assumption that precautions have been taken to make the work safe and that, in addition, workers have the choice of whether or not to undertake the risks involved. So the question in these cases is whether these precautions are adequate—whether, having taken them, it is permissible to proceed—or whether a higher level of caution is required.7 6 7 TM Scanlon, What We Owe to Each Other (1998) 237. Scanlon (cited in n 6) 236. Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D239 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice 239 As my intention is to apply this analysis to the system of criminal justice, it is worth saying a little more about this. Scanlon mentions ‘accidental’ injuries and ‘small benefits’, but these aspects of his thesis are specific to the examples he is considering. There is no reason to think the argument would not go through (if it does) with respect to ‘mistaken’ as against ‘accidental’ injuries and, if anything, increasing the size of the benefits involved might strengthen the case. Scanlon himself applies his account to the system of punishment. He does this by a schematic comparison of the ‘institution of punishment’ with an example in which there is a justified policy of waste removal to protect the water supply; the state takes all available precautions to ensure that no one is injured, but nevertheless through negligence or recklessness some people suffer contamination. Since it seems to me that the first question in considering ‘preventive justice’ must concern what the conditions are such that a system of prevention can be justified at all (and since some of the specific issues mentioned will come up again later), it is worth quoting Scanlon’s analysis at length: In each case [the case of waste removal and that of punishment] . . . First, there is an important social goal: protecting the water supply in the one case, protecting ourselves and our possessions in the other. Second, there is a strategy for promoting this goal that involves the creation of another risk: the risk of contamination in the one case, the risk of punishment in the other. Third, the effect of this strategy is that there is (literally or metaphorically) a certain affected ‘area’ that one can no longer enter without danger. In the one case this is the area in which the excavation, transport, and disposal of the waste are being carried out; in the other case it is the metaphorical ‘area’ consisting of the range of activities that have been declared illegal. Fourth, even if safeguards are introduced to reduce people’s exposure to the risk created, it remains overwhelmingly likely that many of those who enter the affected areas, and perhaps some others, will be harmed. Some of the safeguards that are introduced (such as requirements of due process, and careful methods of excavation and transport) serve to protect those who stay out of the affected area. Other safeguards enhance the value of choice as a protection by making it less likely that people will choose to enter this area. In the example of hazardous waste these include signs and other publicity informing people of the risk, as well as fences, guards, and the choice of an obscure disposal site where no one has reason to go. Analogous features in the case of punishment are education (including moral education), the dissemination of information about the law, and the maintenance of social and economic conditions that reduce the incentive to commit crime by offering the possibility of a satisfactory life within the law. Restrictions on entrapment by law enforcement officers also belong in this category of safeguards, as do provisions which excuse from punishment those who, because of mental illness or defect, are unable to regulate their conduct in accordance with the law.8 As Scanlon admits, there are differences between systems of punishment and waste disposal that make justification of the former both easier and more difficult. Amongst those that make it easier is the fact that the ‘area’ proscribed by the criminal law consists of activities in which it is morally wrong to engage and thus ‘being deprived of the opportunity of “entering this area” without risk does not 8 Scanlon (cited in n 6) 264. Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D240 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi 240 Matt Matravers count as a morally significant loss’. Amongst those that make it harder is the fact that it is ‘no part of the waste-removal program that those who go to the excavation site should suffer contamination’ whereas ‘it is an essential part of the institution of punishment that those who violate the law should be punished’.9 Nevertheless, if we are to have a system of punishment that is justified, at least in part, by its preventing future harms, then Scanlon’s account makes clear where the burden of justification lies. This burden is a heavy one, on the account given so far, because of the intentional infliction of harm involved in punishment. However—again, as Scanlon realizes—the burden of justification is great not only because of the quantity (so to speak) of what is imposed on those who are punished, but also because of the quality of what is imposed. More specifically, punishment has a ‘condemnatory aspect’; it expresses an authoritative judgement that the offender has, through his or her own fault, failed to behave in accordance with appropriate rules and standards. Such a judgement, of course, involves assessing the degree to which the agent is rightly blamed not just in the sense of whether ‘he or she did it’, but in the sense of whether in ‘doing it’ he or she acted in a way that makes blame appropriate (the agent chose to do it in the relevant sense, he or she did not act under duress, or as a result of an uncontrollable physical spasm, etc.).10 It might be worth taking stock. The purpose of this discussion was to put the idea of the state’s seeking to prevent future harms into some kind of theoretical structure. That is, assuming the state’s preventing of future harms is sometimes a demand of justice, the question is how we should decide when, how, and at what cost. One answer—an answer I have rejected—is whenever the overall benefits outweigh the overall costs aggregated across all parties. Having rejected this answer, I then appealed to a standard liberal heuristic; a form of contract argument in which proposals are tested against ‘reasonable rejectability’. Applying this to the question at hand: it is one responsibility of the state to try to ensure the future well-being of its citizens and one way in which it does this is through the criminal law. What Scanlon’s analysis shows us—in common with others—is that if it is to do this it must do it in ways that could not be reasonably rejected by citizens. Policies that aggregate across persons can be so rejected, as can policies that risk criminal liability without putting into place the correct precautions so that citizens might generally avoid such liability through their choices. Rather than thinking of the pursuit of the prevention of harms as one goal—a goal that must be constrained or limited by respect for individuals—Scanlon’s argument suggests a slightly different view of the matter: the prevention of harms is one instance of the state’s respecting persons and 9 Scanlon (cited in n 6) 264–5. Of course, the criminal law also contains activities that are not moral wrongs in themselves (mala prohibita and regulatory offences) and (in practice at least) punishments do not always have a particularly strong condemnatory nature. This makes these aspects of the criminal law both easier and more difficult to justify (but in different ways to the core offences). They are more difficult to justify precisely because they do not involve behaviour the prohibition of which does not count as a morally significant loss, but the justificatory burden is lighter insofar as the penalties are less serious. 10 Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D241 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice 241 is thus properly pursued only through policies that respect the status of persons.11 What the comparison of the waste disposal and criminal justice policies shows us— and in particular what they have in common—is that we respect the status of persons by ensuring such policies contain the correct precautions such that citizens may avoid the risks created by the exercise of their choices. Before moving to consider choice and criminal justice in more detail (which is the topic of the next section), it is worth noting that, for some people, the criminal law has nothing to do with the prevention of future harms other than as a happy side effect of the pursuit of retributive justice. Michael Moore, for example, argues that the good achieved by punishment is simply that of retributive justice: that people ‘get what they deserve’ and that any further benefits of the system are merely contingent: ‘punishing the guilty achieves something good—namely, justice’. All other good consequences are ‘simply beside the point’.12 Thus, for Moore, the comparison of waste disposal and criminal justice is entirely otiose. I have argued elsewhere that Moore’s position—theoretically impressive though it is—ought to be rejected as grounded in an untenable metaphysical moral realism.13 Moreover, even putting to one side the metaphysical basis of Moore’s argument, his overall position seems far less plausible than that of, for example, Ashworth and Zedner who argue that the ‘preventive and punitive rationales are intertwined. It makes no sense to suggest that the criminal law’s purpose is simply to declare the most serious wrongs and to provide for the conviction and punishment of those who commit them, as if the prevention of such wrongs is not also part of the rationale’.14 D. Choice, ‘entering the affected area’, and liability to punishment In this section, I want to consider two stages of criminal liability that flow from Scanlon’s framework (although the distinction between these is not hard and fast). First, there is the question of what protections are necessary to ensure that the creation of criminal law with a view to preventing harms cannot be reasonably rejected. Secondly, the question of the imposition of particular penalties on those who violate that law. With respect to those protections that are necessary if we are to have a scheme of criminal liability that cannot be reasonably rejected: as we have seen, Scanlon mentions due process; education (including moral education); the dissemination of information about the law; the maintenance of social and economic conditions 11 Cf Ashworth and Zedner: ‘In principle, as most systems of criminal law recognize, pursuit of [the rationale of preventing serious harm] should be limited by doctrines that demonstrate respect for individuals as moral agents. Thus the preventive purpose should only be pursued subject to the importance of defining the wrong clearly (so that people know what they should avoid) and of making provision for a fault element in liability and for proportionality of punishment’: A Ashworth and L Zedner, ‘Just Prevention: Preventive Rationales and the Limits of the Criminal Law’ in A Duff and S Green (eds), Philosophical Foundations of Criminal Law (2011) 282. 12 M Moore, Placing Blame: A General Theory of the Criminal Law (1997) 111. 13 M Matravers, Justice and Punishment: The Rationale of Coercion (2000) 81–7. 14 Ashworth and Zedner (cited in n 11) 281. Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D242 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi 242 Matt Matravers that reduce the incentive to commit crime by offering the possibility of a satisfactory life within the law; restrictions on entrapment by law enforcement officers; and provisions which excuse from punishment those who, because of mental illness or defect, are unable to regulate their conduct in accordance with the law. Criminal law theorists will be able to add—and have added—many others. My aim in the following sub-section is to establish a way of thinking about liability and preventive justice that builds on the picture of agency (and its relationship to justice) already presented. In the second sub-section, I want to offer an alternative account of preventive justice measures that puts strain on the first. Entering the affected area Scanlon’s list of protections necessary when creating the risk to criminal liability are not new or surprising. HLA Hart, to give just one example, in one of his discussions of the excusing conditions in the criminal law, comments that ‘we can regard their function as a mechanism for . . . maximizing within the framework of coercive criminal law the efficacy of the individual’s informed and considered choice in determining the future and also his power to predict that future’,15 and throughout Hart’s work one can find a concern for the ability of individuals to determine through choice whether or not criminal sanctions will be applied to them. I find this wholly convincing, which is not to say that it is uncontroversial. Indeed, one way to think of many of the pressing issues of preventive justice—for example, the use of ‘two-step prohibitions’16—is precisely in terms of whether they violate the need to ensure that the state’s regulatory actions are enacted with sufficient protections that they cannot be reasonably rejected by citizens aggregating within their lives given the significance of the penalties attached to some violations of the state’s commands. That said, the precise relationship between the protections that are necessary when formulating policy in pursuit of the good of preventing future criminal harms (that is, the protections that ensure that ‘entering the area’ of risk is a matter of choice) and preventive policies is a complex matter and would need to be worked out on a policy by policy basis. On the one hand, it may seem that so long as the state engages in sufficient publicity the agent cannot complain if he or she breaks the rules and suffers the consequences. On the other, it cannot be the case that the conditions of choice are met for any policy, no matter how draconian, so long as it is announced clearly in advance. What is offered here is meant as a guide to thinking about these issues rather than a catalogue of permissible versus impermissible policies, but it is worth considering a couple of examples as illustrations of how the argument might go. Consider first sex offender registers. Clearly, the state can formulate a set of offences in the area of sexual conduct and so long as the laws meet all the standards of legality, the state can claim that ‘entering’ the area of risk to criminal liability is 15 HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1968) 46. A Simester and A von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (2011) 213. 16 Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D243 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice 243 (other than in cases of ‘mental illness or defect’) a matter of choice and thus meets that demand of justice. If it adds to the law that convicted offenders will be required to go on a sex offender register, and it publicizes this fact, is there any more to be said? The answer will depend on the nature of the register (its duration, to whom it is made available, and so on). If the agent is required to register for life, then a complaint can be brought on the basis that no future set of choices by the agent (for example, not to pose a risk of offending) can change the agent’s status. If the register is made available to the agent’s (future) neighbours, then the consequences of the initial offence may be that the agent cannot find housing, work, friends, and so on. Since these things are no part of the original ‘area of risk’, again a complaint can be brought on the basis of choice, and so on. Consider secondly two-step prohibitions. As characterized by Simister and von Hirsch, ‘these involve the issuance of (nominally) civil prohibitory orders against persons who have been found engaged in, or who are expected to engage in, undesired conduct. A breach of the order then becomes a criminal offence’.17 Again, on the face of it, the state can announce in advance that antisocial conduct will make a person liable to the risk of receiving such a two-step order, and once done, an agent would need to choose further to violate the first step of the order in order to be liable to the second. And again, exactly how we might respond will depend on the precise nature of the legislation. However, there are a number of standard features of such orders that surely render them problematic on the choice account. First, undesired or antisocial conduct is a vague notion. Secondly, the conduct included in ‘antisocial’ will extend far beyond criminal conduct. Thirdly, the order that follows may include prohibitions that go beyond prohibition of that conduct (for example, a person may be ordered not to enter a shopping mall) and that were not themselves known at the time the agent chose to put him- or herself at risk of liability (by, say, behaving antisocially in a particular store within the mall). Fourthly, insofar as the initial order is imposed through civil law it avoids the due process protections of the criminal law although criminal sanctions can follow from a breach of that order. These considerations are not decisive, and it bears repeating that the permissibility of any preventive measure will depend on the precise details of that measure, but they speak against the compatibility of two-step prohibitions and justice understood as discussed earlier. The point of the argument has been to offer a way of thinking about preventive justice as a form of justice. This way of thinking is informed by the thought that the state rightly pursues general goals (including preventive goals). In pursuing these goals, it will on occasion create risks for its citizens. Scanlon’s thought experiment allows us to think about the permissibility of such risks and in particular about the protections required to ensure that citizens become liable to those risks only through their choices (although of course this will never work out perfectly). This way of thinking dovetails with Hart’s, liberal, account of the criminal law ‘that unless a man has the capacity and a fair 17 Simester and von Hirsch (cited in n 16). Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D244 Date:8/10/12 Time:23:18:43 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi 244 Matt Matravers opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him’.18 It is an account that, I think, has much to commend it. However, in the next sub-section, I want to suggest a different way of thinking about preventive justice and about recent developments in this area. Liability to punishment The previous sub-section is concerned with protecting agency as a requirement of justice. The picture is one of choosing, autonomous agents who have to live together in conditions of scarce resources, and whose state, in formulating policies to reduce the chances of future preventable harms, must act in ways that reflect the significance of agency. The concomitant of this, of course, is that those who choose to act in ways that make themselves liable to the risk have no complaint when it is realized. A person who knowingly climbs the ladder next to the sign saying ‘Do not enter, contaminated waste’ has nothing to complain about should he or she become ill (although of course it need not be anyone’s plan that such persons should become ill). The offender who intentionally and without excuse violates a justifiable criminal law cannot complain when sentenced to the prescribed penalty.19 The details are—as I hope I have indicated—immensely complicated, but the picture of agency, and of its role in justice, is relatively straightforward. In this sub-section, I want to put this into question. In particular, I argue that we are in the midst of something of a revaluation of agency and of the relationship between agency and blame.20 I believe that this is most clearly apparent when we have to inflict penalties on agents for their ‘responsible conduct’ although, of course, any revaluation of agency would affect not merely this, but also the foundations of the account of justice itself. It is one thing to think about agents entering the ‘affected area’ of the criminal law and rendering themselves liable to sanctions. When we do this, we call on abstract notions of agency and risk settling back into ‘justificatory self-satisfaction’21 when our theories hold together. It is another to think about a particular agent being subject to a particular penalty. My suggestion is that worries about agency manifest themselves at (but are not limited to) the second stage and that some preventive justice developments reflect this change in the confidence with which we think of ourselves and others as agents. To pursue this, I want to stipulate a number of claims. First, I take it that punishment must involve hard treatment. Secondly, whilst there may be number of (seeming) desert or proportionality constraints on the use of hard treatment, the inclusion of hard treatment in punishment has a preventive rationale (that is, we might condemn an offender in a number of ways that do not involve hard treatment, but in punishing him or her we condemn and penalize. Attempts to 18 Hart (cited in n 16) 11. Scanlon (cited in n 6) }3.3. 20 N Lacey and H Pickard, ‘From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility without Blame into the Legal Realm’ (forthcoming, OJLS). 21 D Ivison, ‘Justifying Punishment in Intercultural Contexts’ in M. Matravers (ed), Punishment and Political Theory (1999) 107. 19 Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D245 Date:8/10/12 Time:23:18:44 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice 245 show that hard treatment is a non-contingent vehicle for condemnation, such as are offered by Antony Duff, in my view fail,22 which leaves hard treatment as having (at least a significant) preventive rationale). Thirdly, I take ‘agency’ and (in the relevant sense) ‘choice’ to be both a property of persons and a social construction that needs to be interpreted. That is, I take it that there is an important sense in which being an agent—being someone able to exercise choice and who commands respect in virtue of that—is to some degree a fact about the person (for example, he or she has a certain cognitive and perhaps affective capacity). However, that is not all there is to it. Attributions of agency—the use of choice as normatively significant—are embedded in social practices. Thus, for example, the use of agency to capture the idea of (legal) responsibility is ‘fundamentally relational’ in that it depends on ‘the character of moral, legal, and social relations among the actor, the victim, and the evaluator’.23 In thinking about agency in this way, it is useful to learn from the ways in which we approach ideas such as lunacy. Asking how to go about thinking about lunacy, the historian Roy Porter comments that ‘the history of madness stands between histories of subjects such as plague or death and (on the other hand) histories of witchcraft. It must treat insanity . . . as a physical fact; but it needs to interpret it . . . principally as a socially constructed fact’. He goes on: So, is the historian to treat the lunatic as akin more to the smallpox victim or to the witch? Neither of these extremes will serve our turn. Even the doughtiest champion of the organic aetiology of insanity will concede that madness has donned and doffed radically different masks down the ages, just as those who regard ‘insanity’ essentially as a social label will admit that the individual suffering is none the less intense. Some integrative position is required. Insanity is both a personal disorder . . . , and is also articulated within a system of sociolinguistic signs and meanings.24 Porter’s suggestion of how the historian should deal with ‘lunacy’ offers, in my view, a productive way of thinking for those looking to understand ‘agency’. This is not to say that there are no relevant ‘facts of the matter’ or that one interpretation of agency is as good as any other. Moreover, of course, one of the functions of law and legal doctrine is to fix the meaning of terms such as liability, responsibility, and excuse. In doing so, the law has a degree of flexibility to deviate both from the ‘facts’ and from popular beliefs about their meaning. Thus, the law can postulate an artificial being with agency and can resist the latest in scientific and 22 M Matravers, ‘Duff on Hard Treatment’ in R Cruft, M Kramer, and M Reiff (eds), Crime, Punishment and Responsibility (2011). 23 C Kutz, ‘Responsibility’ in J Coleman and S Shapiro (eds), The Oxford Handbook of Jurisprudence & Philosophy of Law (2002) 550. Cf Antony Duff, ‘to be responsible is to be . . . held responsible by somebody within some practice’: RA Duff, ‘Who is Responsible, for What, to Whom?’ (2005) 2(2) Ohio State Journal of Criminal Law 442. My Responsibility and Justice (2007) is an extended defence of this view of responsibility and its significance for distributive and retributive justice. 24 R Porter, Madmen: A Social History of Madhouses, Mad-Doctors, & Lunatics (2004) 26–7. For discussion of some of the different masks ‘donned and doffed’ by legal responsibility, see, eg, N Lacey, ‘Character, Capacity, Outcome: Toward a Framework for Assessing the Shifting Pattern of Criminal Responsibility in Modern English Law’ in M Dubber and L Farmer (eds), Modern Histories of Crime and Punishment (2007) 14–41. Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D246 Date:8/10/12 Time:23:18:44 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi 246 Matt Matravers pseudo-scientific findings because responsibility in the law is responsibility in the law and not responsibility in something else. Yet, this flexibility is not boundlessly elastic. Both for reasons of maintaining public confidence and because the law is not immune to intellectual fashions and changes in the understandings of the communities it serves, the law’s relation to beliefs about agency, responsibility, and so on, cannot be entirely distant. My conjecture in this section has three parts: first, that we are undergoing something of a revaluation of the nature of agency and the relationship between agency and blame; secondly, that this revaluation is more often revealed in uncertainty about our infliction of punishment than in the design of (new) offences or defences; thirdly, that some of what has recently been taken to be a resurgence of a preventive rationale in the use of the criminal law reflects that uncertainty. To examine this, I want to take the second claim first and to do that I want to return briefly to Scanlon. Two types of responsibility. As we saw earlier, Scanlon recognizes that there is more to punishment than the regulation of conduct. Specifically, punishment involves moral condemnation. In discussing this, Scanlon distinguishes two types of responsibility: ‘responsibility as attributability’ and ‘substantive responsibility’.25 Although I am not wholly convinced by the way in which Scanlon divides the two senses of responsibility,26 the distinction is important. In brief, the former captures the idea that a given action can be attributed to an agent in ‘the way that is required in order for it to be a basis for moral appraisal’. The latter expresses ‘substantive claims about what people are required . . . to do for each other’.27 That is, if a person is ‘properly subject to praise or blame for having acted’ in a certain way, that is a matter of responsibility as attributability. Whether such praise or blame should be expressed and whether as a result the person should bear the ‘burdens or obligations’ that result from his or her actions is a matter of substantive responsibility.28 This is a useful distinction; we sometimes feel that it is right that someone is the proper subject of blame, but that he or she ought not to have to bear the entire burden that results from his or her actions (consider someone who stupidly goes rock climbing without checking the weather and gets into trouble. Such a person is the proper object of blame for having acted in the way that he or she did, but we may feel that he or she nevertheless deserves to be rescued). Moreover, it can be applied to—although it does not map directly on—the trial and sentencing stage of criminal law. Having satisfied ourselves of the attributability of blame to the offender, we might nevertheless feel that there is a case for mitigation in sentencing. My claim is that this can provide a safety valve for uncertainty about agency at precisely the time when that uncertainty is most likely to bite, which is when a (substantial) burden is being imposed on someone in virtue of that agency. 25 Scanlon (cited in n 6) 248. M Matravers, ‘Responsibility and Choice’ in M Matravers (ed), Scanlon and Contractualism (2003) 77–92. 27 Scanlon (cited in n 6) 248. 28 Scanlon (cited in n 6) 290. 26 Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D247 Date:8/10/12 Time:23:18:44 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice 247 An example of this might be the English plea of diminished responsibility. This plea was introduced in the Homicide Act 1957 and allows that where a defendant accused of murder can show that his or her ‘mental responsibility’ was ‘substantially’ impaired by mental abnormality conviction can only be for manslaughter. This is a much criticized aspect of English law (and I have no wish to defend it). Although the requirements for diminished responsibility have been changed by the Coroners and Justice Act 2009 s 52, it remains true that the successful use of this plea does not ‘excuse from responsibility’ but, by means of a change in the offence, ‘mitigates the penalty’.29 Moreover, the change helped to stave off calls for more significant reform to the law. That is—at least arguably—a gap had opened up (and continues to exist) between one idea of agency and responsibility and the idea of agency and responsibility that underpinned the M’Naghten Rules of 1843. The autonomy of the law—its ability to dismiss, for example, ‘the men of medicine’ and their ‘modern ideas’30—was under pressure and that pressure was relieved by the introduction of the plea of diminished responsibility which allowed defendants to escape the terrible choice of the label of murderer (and capital punishment) or lengthy detention as insane. I do not want to make this distinction too stark. Debates over agency and the proper conditions under which choice can be said to be a result of agency can rage at the stage at which offences and defences are being created or discussed (as, for example, in cases of proposed defences of battered women syndrome), but even there the trigger for such discussions is often the use of the penalty appropriate to agency as determined by law. What these and other discussions show, I think, is confusion and uncertainty about the nature of agency, which is the first part of my conjecture to which I now turn. Agency. The first part of my conjecture is that there is a general sense of confusion and uncertainty about agency. The second part, already discussed, is that some of that uncertainty emerges when agency matters (when we are about to impose large costs on people because of judgements of responsibility). To some extent the second part, if true, would be evidence for the first. However, I think there is more to be said. The claim I would like to make is of the following form: there is in our thinking about agency and responsibility a story analogous to the one told by David Garland in The Culture of Control,31 but with a further chapter. The equivalent of the post-war welfarist consensus in Garland is what Hart analysed as ‘a new scepticism’ beginning in 1957: a scepticism of the whole institution of criminal punishment so far as it contains elements which differentiate it from a system of purely forward looking social hygiene in which our only concern when we have an offender to deal with, is with the future and the rational aims of the prevention of further crime, the protection of society and the care and if possible the cure of the offender.32 29 30 31 HLA Hart, The Morality of the Criminal Law. Two lectures (1965) 11. SJF Stephen, A History of the Criminal Law of England (1883) ch XIX. 32 Hart, (cited in n 29) 13. Garland (cited in n 1). Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D248 Date:8/10/12 Time:23:18:44 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi 248 Matt Matravers This scepticism—according to Hart who associated it with Barbara Wootton33—in its most extreme form stemmed from a belief in the impossibility of drawing lines between normal and abnormal offenders.34 Following Garland’s chronology, Hart’s worries about this scepticism of course proved unfounded. Instead, what emerged in the 1970s was a resilient individualism in politics and the law and a resurgence of something associated with retributivism. As I have argued elsewhere, this retributive turn was not grounded in desert or on any solid, pre-justicial foundations.35 That lack of foundations makes it vulnerable to changes in the ordinary conception of agency and responsibility (changes that may well be prompted by something of a backlash against the individualism initiated under US President Ronald Reagan and British Prime Minister Margaret Thatcher). The extension of the argument then is that what we are seeing is a combination of political, cultural, and legal pressures on the idea of agency as it is currently enshrined in law. The public realm is awash with papers and projects on law and neuroscience and even popular magazines and newspapers are reporting that changes in the way we understand the brain will fundamentally change the way we view criminal responsibility.36 At the same time, the promised revised version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) proposes to move away from categorical to dimensional diagnoses of personality disorders.37 Of course, this is not to say that brain scans will make the law redundant or that the psychiatric profession is suddenly committed to the view that we are all mad (or that there is no difference between the sane and the mad), but these—together with things like the rise of therapeutic justice—are perhaps harbingers of change. This story, broken into three parts as it is, oversimplifies. Social, political, and cultural life does not break neatly into sections. Even one of criminal law’s most treasured stories of this kind—of the rise of consequentialist theories of punishment and their displacement by ‘just deserts’ in the 1970s—obscures many of the ways in which retributivist strands were present prior to the 1970s and consequentialist ones afterwards.38 Nevertheless, it would be a mistake, I think, to reject the story 33 Wootton held that the purpose of the criminal law was to prevent antisocial behaviour and the purpose of criminal punishment was to achieve this by treating offenders so as to modify their future behaviour. For Wootton, mens rea considerations were relevant ‘after a breach of the law has been proved’ because of ‘the light which they throw on the likelihood of his offending again, and upon the most hopeful way of dealing with him’: B Wootton, Crime and Penal Policy: Reflections on Fifty Years’ Experience (1978) 224. 34 As Wootton (cited in n 33 at 227) puts it, ‘if mental health and ill-health cannot be defined in objective scientific terms that are free of subjective moral judgements, it follows that we have no reliable criterion by which to distinguish the sick from the healthy mind’. 35 M Matravers, ‘Is Twenty-First Century Punishment Post-Desert?’ in Tonry (cited in n 2). 36 The most famous and arguably most serious being the Law and Neuroscience Project <http:// www.lawneuro.org/index.php>. For examples of the popular reception of these ideas, see, eg, D Eagleman, ‘The Brain on Trial’ in The Atlantic <http://www.theatlantic.com/magazine/archive/ 2011/07/the-brain-on-trial/8520/4/>. 37 For a discussion of this, and of some of the controversies surrounding the change, see the papers included in the special edition of Personality and Mental Health (2011) 5(2). 38 M Tonry, ‘Crime and Public Policy’ in M Tonry (ed), The Oxford Handbook of Crime and Public Policy (2009) 3–21. Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D249 Date:8/10/12 Time:23:18:44 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice 249 outright because it is not the whole story. There was a rise of retributivist thinking and practice in the 1970s and it had real-world consequences, many of which were unwelcome to its most fervent supporters. I do not think that there is a rise of straightforward consequentialist thinking in any analogous way—although I think that some of the confusion that is on the rise is fuelled by a feeling that current practices of blame and punishment neither reflect our beliefs about justice nor do much to reduce future offending. Rather, there is a growing unease about whether the lines of criminal responsibility can be drawn with such confidence. Prevention and uncertainty. The third part of my conjecture is that all of this discussion has something to do with the ostensible topic of this chapter, which is preventive justice. To substantiate this, I want to try to capture the arguments of the other parts of the conjecture in a slightly different way. In a short piece on responsibility, Galen Strawson declares the problem of free will to be ‘like a carousel’. His argument is that we seek the kind of responsibility (call it ‘ultimate’ moral responsibility) that can underwrite—make comfortable for us—our practices of blaming and punishing. Faced with the impossibility of any such responsibility, the compatibilist offers us a different sense of responsibility (one that is compatible with our beliefs about causality, science, and so on). However, the kind of responsibility that the compatibilist can rescue is too thin to reassure us in our practices of blame and punishment (and so we return to the stronger notion that is incompatible with causality and round we go again).39 The two parts of my conjecture map onto these stages of the carousel. It is when we are punishing that we worry most about agency and our worries about agency are being compounded by science and culture. For example, we have a far greater awareness of the social determinants of actions now than we did, but we do not know quite what to do with this information. This dilemma manifests itself in many ways, for example in the schizophrenic reaction of some in the population and press to sex offenders and, in particular, paedophiles: ‘they must be punished’, but ‘they cannot help themselves’, so ‘they must also be watched (or worse)’. Of course, there is no conceptual connection between these kinds of incompatibilist worries and preventive measures. In other words, a crisis in our understanding of agency need not necessarily lead to more preventive criminal justice; it might just as easily lead to less criminal justice all round. However, I think there is a way of understanding recent developments in preventive justice—including the increase in preventive policies—that might be thought a plausible development from a revaluation of agency and might offer a distinctive and interesting way of thinking about those policies. If we think of ourselves not as ‘ultimately’ responsible (in the Strawson sense), but equally not as mere handmaidens of chance, we might come to a view of responsible agency as fragile. That is, for all sorts of reasons, we hang on to a picture of ourselves that is as Scanlon or Hart have it, but we are also conscious of the degree to which our fates are not fully our own or determined by our choices. 39 G Strawson, ‘Luck Swallows Everything’ (1998) Times Literary Supplement. A similar worry, albeit in support of a very different conclusion can be found in G Watson, ‘Two Faces of Responsibility’ (1996) 24(2) Philosophical Topics 227–48. Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D250 Date:8/10/12 Time:23:18:44 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi 250 Matt Matravers Combine that with the appalling consequences of criminal conviction both for ourselves and for those around us and we come to a vision of preventive justice policies as helping fragile agents avoid the often catastrophic consequences of their own criminal behaviour. On such a picture, the two-step prohibition order or the CCTV camera might be thought of as responding to the agent as someone who struggles with her or his behaviour and as needing help to ensure that she or he does not become liable to the criminal penalties that we otherwise need for social stability. This is not, of course, how those who introduce such preventive measures think of those measures. Rather, they offer such policies as protecting the law-abiding ‘us’ from the feral ‘them’. On my account, these measures when properly instituted are best thought of as protecting all of us from ourselves in the particular circumstances of the criminal law where making a mistake has such terrible consequences. This is not to negate the Scanlon/Hart position on the importance of choice, and it does not render redundant the mechanisms for evaluating preventive measures already suggested. For the moment, choice and agency matter, but the issue is over how much they matter in particular social practices. My conjecture is that we are uncomfortable with the degree to which they matter when the stakes are high— as of course they are in criminal justice—but we have not yet found a suitable response. If so, recent developments in preventive justice might be thought of in the light of this and, in my view, rendered less threatening. E. Conclusion My claim—in its least controversial form—is that criminal justice has always had a concern for prevention as well as for punishment and we should not be too surprised when the balance between these rationales shifts in particular domains. In addition, it seems to me that Scanlon’s accounts of aggregating within lives and of how to capture the value of choice when thinking about the pursuit of public policy, offer a useful way of theorizing about these issues. My grander claim is that the shift in this balance is indicative of a wider confusion about agency and a growing scepticism about the traditional conception of agency grounded in choice. This confusion manifests itself in punishment as it is there that the issues seem most urgent. Moreover, tinkering with the outcomes of our judgements of responsibility is less threatening to our understanding of ourselves than is rethinking those judgements from scratch (to mitigate a sentence to reflect unease about the agency of a particular offender is one thing, to give up on mens rea in the construction of offences is quite another). In short, allowing that our idea of agency may be more fragile than we think, and that we worry about this most when the stakes are high, allows a different way of thinking about preventive justice. What I have not done is say anything about whether the changes and confusion that I have conjectured exist are unwelcome or welcome developments, or something in between. For what it is worth, I think the direction of travel is welcome but Comp. by: PG3754 Stage : Proof ChapterID: 0001734900 Filepath:d:/womat-filecopy/0001734900.3D251 Date:8/10/12 Time:23:18:44 OUP UNCORRECTED PROOF – FIRST PROOF, 8/10/2012, SPi On Preventive Justice 251 in need of theorizing.40 That is, I think it is a serious mistake simply to reject these developments out of hand as ‘disproportional’, ‘a return to the treatment model’, or whatever. I also think it is a mistake to assume that they can only be made acceptable if transformed into something familiar and retributive. Proportionality and punishment are not free of conceptions of agency, and it is agency that is in question. It might be, in the end, that our current understandings of justice, agency, and blame are vindicated, but, if nothing else, our understanding of them will be improved for considering how best they meet the challenge. 40 I try to take seriously the Strawsonian challenge with respect to our current practices of distributive and retributive justice in Matravers (cited in n 23). As will be clear from this discussion, I am not yet sure about how to theorize an alternative to those practices. That is the wider project of which this chapter is a part.