Braithwaite, John

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Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 73Issue 2 Summer Article 14Summer 1982Reply to Dr. Ernest Van Den HaagJohn BraithwaiteFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationJohn Braithwaite, Reply to Dr. Ernest Van Den Haag, 73 J. Crim. L. & Criminology 790 (1982)0091-4169/82/7302-790THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 73, No. 2Copyright © 1982 by Northwestern University School of Law rintwdin USA.REPLY TO DR. ERNEST VAN DEN HAAGJOHN BRAITHWAITEVan den Haag correctly points out that my position on punishmentcannot be justified by appeal to community attitudes. I would not wantto justify it this way. My utilitarian judgment that capital punishmentis wrong is not troubled by a majority community opinion in favor ofcapital punishment.' Public opinion is only relevant to my argumentinsofar as it is one of the two fundamental ways of putting the principleof desert into practice (the other being objective harm). My only con-tention is that if desert is operationalized by either public opinion orobjective harm, there will be more white-collar than common criminalsin our prisons.Van den Haag does not say what he thinks of operationalizing de-sert by objective harm, but I suspect we are in agreement that there canbe no satisfactory way of implementing desert. I certainly concur withvan den Haag that surveys which elicit opinions from the public onwhat punishment should be given, or how serious a particular offense is,do not necessarily reflect perceptions of desert because respondents maybe making utilitarian judgments rather than retributivist ones. I makethis same point under the heading, "The Pitfalls of Measuring Desert bySurveys."Fundamentally, however, public opinion and objective harm arethe only practical ways of operationalizing desert-van den Haag and Imight agree that they are silly ways, but they are the only ways. Vanden Haag concludes that just deserts is a theory which can have no prac-tice. My conclusion is that the only practice which is possible defeats itsown purposes. That is, for those who think it sensible to use an imper-fect yardstick of desert, my analysis shows that because of the empiricalrealities of existing societies, just deserts in practice punishes most wheredesert is least. Just deserts would produce more injustice than is achiev-1 A theory of democracy does not require government by referendum; it simply requiresthat the people have the right to throw out a government they do not like. The people will dothat when a government flouts public opinion once too often. But sometimes politicians alsolose votes because they are populists who never take a stand on principle, and very oftengovernments are thrown out for drifting with the tide and failing to take unpopular measureswhen they are needed to keep a firm rudder on the ship of state. There is no need to apolo-gize for lobbying democratic governments to resist popular opinion.REPLY TO VAN DEN HAA Gable under policies which do not set out with justice as their goal (e.g.,parsimony).A basic difference with van den Haag is that I am willing to riskbringing the level of punishment of common criminals down to that ofwhite-collar criminals (after punishment of the latter has been raised),but van den Haag is not. The only reason for this difference is that vanden Haag is firmly convinced that such a policy would reduce deter-rence and increase common crime while I am doubtful that it wouldmake much difference (we are both doubtful about rehabilitation andincapacitation).2 I am not going to bore readers with my interpretationof the voluminous literature on deterrence which leads me to havedoubts about how far the doctrine should be carried. In any case Iwould not want to argue strongly for a position of which I am unsureand on which better data is needed. The burden of proof should alwaysbe on those who want to spend more of the taxpayer's money (be it onprisons or pollution control), not on those who are doubtful aboutwhether it is worth spending it.There are problems with the last paragraph of van den Haag's cri-tique. It is dangerous so glibly to take for granted the interests embod-ied in laws. One wonders how van den Haag would apply hisequanimity about the structural implications of the legal status quo tothe laws of apartheid, for example. Nevertheless, I am not a disciple ofthe doctrine that the law is written to reflect ruling class interests,though it very often happens that the law in action burdens the rulingclass less then the poor.3 My reference to Anatole France was not tosuggest that the law is a tool of the ruling class but to show how a Kant-ian concern over reciprocity, an "equilibrium of.benefits and burdens,"is a nonsense because rich and poor, individual and corporation, havedifferent benefits and burdens. One reason for this is that there aresome respects in which powerful corporations have greater burdens thanthe poor (e.g., compliance with antitrust laws). My article is not aboutthe injustice inherent in the way the law is written but about injustice inthe way it is enforced.Van den Haag and I have different conceptions ofjustice which aremanifest in our attitudes to the following two unjust situations:2 Van den Haag's doubts about rehabilitation and incapacitation are, however, moresevere than mine. While not rejecting deterrence, rehabilitation, and incapacitation as goalsof punishment, my doubts about their efficacy for reducing common crime are sufficient forme to favor diminishing punishment at least down to the point where it becomes clear thatthese utilitarian goals are no longer being achieved as they once were. In contrast, I find theevidence persuasive that, at the current level of punishment for white-collar crime, increasesin punitiveness can reduce crime. Braithwaite & Geis, On Theo,7 and Action for Corporate CrimeControl, 28 CRIME & DELINQ. (forthcoming issue, 1982).3 SeeJ. BRArrHwArrE, INEQUALITY, CRIME AND PUBLIC PoLIcy 10-13 (1979).1982]JOHN BRAITHWAITEA. The poor get the punishment they deserve, but the rich getpunishments less than they deserve.B. The poor and the rich equally get punishments less than theydeserve.Van den Haag finds A more acceptable; I prefer B. One reason isthat, as a non-retributivist, I find punishing people "less than they de-serve" to be neither particularly meaningful nor troubling. I simplydon't have a way of deciding if a person has received a less-than-de-served punishment, so why should I worry when some people say that hehas? Even if we could somehow know when such people were right,mercy and compassion are not necessarily evils. Moreover, giving peo-ple what they deserve is simply not my reason for punishing them.Situation A, on the other hand, is profoundly disturbing because itis a structural injustice between rich and poor. It is disturbing irrespec-tive of whether injustice is conceived as meaning unfairness or inequal-ity. Why should structural injustices--between rich and poor, blackand white, men and women-be more troubling than other kinds ofinjustice? Elsewhere, a more detailed answer has been provided, 4 but asummary answer at least is required here.Structural injustice is of particular concern when it is based on onegroup having more power than another. Public policy rightly toleratesmany injustices which are not based on power. Imagine that accordingto some reasoning, Tom is the person who most "deserves" a particularjob for which he has written an application. If Tom fails to get the jobbecause his wife forgets to post the letter of application, because he can'tstart work soon enough, or because the personnel officer failed to noticeTom's virtues, then Tom has suffered a kind of injustice. Through nofault of his own, Tom missed out on something he "deserved." Whilepeople sympathize over Tom's "bad luck," no one feels that public pol-icy ought to do anything to correct the injustice. If, on the other hand,Tom missed out on the job because he was black, the injustice is seen assomething demanding a remedy. Why? Because it is so blatantly astructural injustice based on power. Public policy is not very concernedto correct the injustices of bad luck because it is assumed that whilemisfortune will frown on us with respect to some chance injustices, goodluck will smile on us with others. Not so with injustice based on power.The fact that one is a victim because of powerlessness increases theprobability that one will be a victim in many other kinds of ways.Powerlessness begets victimization begets powerlessness begets more vic-timization. This is what is meant by "self-perpetuating poverty" or "cy-4 Braithwaite, Paradoxes of Class Bias in Cn'inalJustice, in BREAKING THE CRIMINOLOGI-cAL MOLD: NEW PROMISES, NEW DIRECTIONS (H. Pepinski ed., in press).[Vol. 73REPLY TO VAN DEN HAA Gcles of disadvantage." 5 Public policy therefore rightly has a greaterconcern with rooting out structural injustice based on power in all itsinsidious forms than with removing other kinds of injustice.'An additional reason for this is that it is structural injustices whichtend to generate the greatest resentment and undermine respect for thesocietal institutions concerned; in the case of unequal punishment ofrich and poor, it is respect for the law and the criminal justice systemwhich is eroded. While one hears people express disgust at a criminaljustice system which punishes people less than they deserve, that disgustrarely leads to rationalizing violations of "rich man's law" or "whiteman's law," a sentiment commonly enough the product of structuralinjustice.I suspect that a fundamental source of difference is that van denHaag wants to weigh structural and non-structural injustices as if theywere equal, whereas structural injustices weigh more heavily for me.Just deserts and determinate punishment are not so bad if you have nospecial concerns about a society which blinks at the abuses of the richwhile bludgeoning those of the poor.5 M. RuT=r & N. MADGE, CYCLES OF DISADVANTAGE (1976).1982]

Reply to Dr. Ernest Van Den Haag

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Reply to Dr. Ernest Van Den Haag

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