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Autumn 1994
   
Punishment and Personhood
Clarence Thomas
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What are the real-world effects of the “rights revolution”—the legal revolution of the past thirty or so years in creating and expanding individual rights? What are its consequences for the well-being of our inner cities? Would the lawyers and judges making these rules want to live under the conditions that so many in the inner cities must endure? And do the answers to these questions suggest a moral basis for a restrained judiciary that proponents of the rights revolution have neglected to consider?

As part of this revolution, our courts have held that government could not suspend students from public schools or evict tenants from public housing without hearings and other procedures designed to ensure fairness, individual dignity, and a sense that justice has been done. The idea was that, for the poor and minorities, government benefits were forms of property that guaranteed well-being. Many, therefore, argued that to expose these benefits to arbitrary and unregulated state power would rob the underrepresented in our society of their one source of dignity and personal security.

In the same vein, vagrancy, loitering, and panhandling laws came under challenge because the poor and minorities could be victims of discrimination if the police had broad discretion to ensure public safety. Moreover, as a consequence of the modern tendency to challenge society’s authority to shape social norms, the legal system began to prefer the ideal of self-expression, without much attention to the ideal of self-control. What resulted was a legal culture that declined to curb the excesses of self-indulgence: vagrants and others who regularly roamed the streets had rights that could not be circumscribed by the community’s sense of decency or decorum.

But look at the result. Providing extensive hearing rights for the student who carries drugs or weapons to school, or for the drug pusher or gang member who occupies public housing, is more than a mere abstraction. These decisions have incredibly significant effects on the ability of school principals and tenant organizations to enforce standards of decency and conduct, and they also have an enormous impact on the opportunities available to a community in solving the problems that plague the poorest of our citizens.

Young children cannot learn in school if they are besieged by drugs and violence. They cannot lead normal lives if so many street corners, sandlots, and apartment buildings are fixed places of business for drug dealers and other criminals. How can their parents or older brothers and sisters lead productive lives if rampant community violence and disorder stifle economic and educational opportunity? If they can’t walk or drive down a street without fear of being shot or assaulted? There can be no hope for the future without serious legal and policy debate on these questions.

I want to address in some detail one further aspect of the rights revolution that has equally profound consequences for our inner cities—namely, how the current state of our criminal justice system has affected the ideal of personal responsibility. I am convinced that there can be no freedom and no opportunity for many if our criminal law loses sight of the importance of individual responsibility. Indeed, the principal purpose of a criminal justice system is to hold people accountable for the consequences of their actions, to hold people’s feet to the fire when they do something harmful to individuals or society as a whole.

The chief reason we hold people accountable is this: the law cannot persuade where it cannot punish. As Alexander Hamilton said, “It is essential to the idea of a law that it be attended with a sanction . . . a punishment for disobedience.” Most of us are regularly faced with the deterrent effect of the law, the incentive not to engage in conduct that might harm others. To be sure, we choose to honor speed limits because such behavior might well save our own lives, but we just as surely follow the rules because of the legal consequences of speeding—fines and possible loss of license. In a similar vein, a company might benevolently refrain from polluting a neighboring river to avoid harming others who rely on its clean water for drinking and recreation. Clearly, though, stiff fines give the company a tangible incentive to avoid such conduct. As Saint Thomas Aquinas said, “It is not always through the perfect goodness of virtue that one obeys the law, but sometimes it is through fear of punishment.”

Some underscore a different aspect of human nature in explaining why holding people responsible is central to our criminal justice system. Unlike any other creature, humans are moral, rational beings. We expect one another to be able to distinguish right from wrong and to act accordingly. Thus, when society punishes someone for breaking the law—when it holds him accountable for the consequences of his acts—we are recognizing that only mankind is capable of being moral or rational. We are acknowledging the human dignity of our fellow man. Indeed, people thrive in our society because of the expectations we all have regarding the capacity of the human will to do good. To disregard this potential—as we do when we ignore the fact that someone has harmed others by breaking the law— treats our fellow man as a being incapable of determining right from wrong and controlling his behavior. Ultimately, our hopes for the future of society can be no brighter than the expectations we have regarding the conduct of its individual citizens.

There are others who believe that the principal reason we hold people responsible is because of our mutual political or social obligations in a civilized, democratic society. In accepting and benefiting from the opportunities of our free society, we each consent to be bound by its rules and expect government to enforce them. When someone breaks the law, he violates a fundamental trust. In effect, the law-breaker is telling all of us that there can be no mutual expectation that society’s rules—which protect all of us—will be followed. On this view, we punish the criminal because he owes a debt to society for violating our trust. To do otherwise would cheat those who abide by the law and dilute the threat of force that the law is supposed to convey. If our government failed to remedy wrongs by holding people responsible for their acts, we would be faced with the prospect of vigilante justice and all its accompanying evils.

The criminal law serves a signaling function when we hold people accountable for their harmful acts. Punishing people is an expression of society’s resolve that certain behavior will not be tolerated because it hurts others, is counterproductive, or is offensive to the sensibilities of our culture. In the absence of such a signal—if government does not punish harmful conduct—we send a dangerous message to society: we end up sanctioning harmful behavior. What are we telling students who are trying hard to do well in school and to avoid drugs, or the upstanding public housing tenant who respects others’ property and well-being, when our law fails to express outrage at those who do wrong?

One must wonder, though, whether our system of criminal law is carrying out this vital signaling function. Why are so many of our streets rife with drug bazaars and other criminal enterprises? Why are so many of our schools devoid of the discipline that is necessary for a healthy learning environment and instead plagued by lawlessness? Why is there an unprecedented fear of violence—or just a plain unwillingness to cultivate neighborhood unity and spirit—among so many of our fellow citizens?

One reason, I believe, is that the rights revolution worked a fundamental transformation in our criminal law. The very same ideas that prompted the judicial revolution in due process rights for the poor, and that circumscribed the authority of local communities to set standards for decorum and civility on the streets or in the public schools, also made it far more difficult for the criminal justice system to hold people responsible for the consequences of their harmful acts. I want to focus on one particular force behind the rights revolution, one that in my view had the most profound effect on the direction of the criminal law: namely, the idea that our society had failed to safeguard the interests of minorities, the poor, and other groups; and, as a consequence, was primarily at fault for their plight.

Much of the judicial revolution in individual rights was justified on the ground that the dignity and well-being of large segments of our population—minorities, the poor, women—were consistently ignored by our social and political institutions. As the victims of centuries of discrimination and oppression, blacks and other minorities could not enjoy the full benefits and opportunities that society had to offer. So too were the poor viewed as victims—uncontrollable forces contributed to their poverty, and their “stake” in welfare and other public benefits was not insulated from unregulated state power in the same way that the property interests of the more fortunate were.

These concerns greatly influenced our courts, which required that government hold hearings and comply with elaborate procedural requirements before terminating public benefits. The view was that these entitlements were worth protecting because they aided the poor and underrepresented in achieving security and well-being.

Procedural protections were also viewed as necessary to ensure that government interference with public benefits was not arbitrary and unfair. Because minority and disadvantaged students are the most frequent objects of school discipline, for example, advocates of greater constitutional protections insisted that the absence of stringent procedural requirements for suspension could lead to racial discrimination. Much the same arguments were made regarding limits on the power to evict tenants from public housing and to enforce broad vagrancy or panhandling laws—government discretion had to be curbed in order to ensure that minorities or the poor were not singled out for unfair and discriminatory treatment.

In this way, the intellectual currents of the legal revolution in individual rights affected the management of community institutions such as schools and the civility of our streets, parks, and other common places. But how did these ideas affect the functioning of the criminal justice system?

Many began questioning whether the poor and minorities could be blamed for the crimes they committed. Our legal institutions and popular culture began identifying those accused of wrongdoing as victims of upbringing and circumstances. Many argued that human actions and choices, like events in the natural world, are often caused by factors beyond one’s control. No longer was an individual identified as the cause of a harmful act. Rather, societal conditions or the actions of institutions or other people became the responsible causes of harm. These external causes might include poverty, poor education, a faltering family structure, systemic racism or other forms of bigotry, and spousal or child abuse, to name just a few. The consequence of this new way of thinking about accountability and responsibility—or the lack thereof—was that a large part of our society could escape being held accountable for the consequences of harmful conduct. The law punishes only those who are responsible for their actions, and in a world of countless uncontrollable causes of aggression or lawlessness, few will have to account for their behavior.

As a further extension of these ideas, some began challenging society’s moral authority to hold many of our less fortunate citizens responsible for their harmful acts. Punishment is an expression of society’s disapproval or reprobation, a way of directing society’s moral indignation toward persons responsible for violating its rules. Critics insisted, though, that an individual’s harmful conduct is not the only relevant factor in deciding whether punishment is justified. The individual’s conduct must be judged in relation to how society has acted toward that individual in the past. Many began to hesitate to hold responsible those whose conduct might be explained as a response to societal injustice. How can we hold the poor responsible for their actions some asked, when our society does little to remedy the social conditions of the ill-educated and unemployed in our urban areas? Similarly, others questioned how we could tell blacks in our inner cities to face the consequences for breaking the law when the very legal system—and indeed the society—that will judge their conduct had perpetuated years of racism and unequal treatment under the law.

Once our legal system accepted the general premise that social conditions and upbringing could be excuses for harmful conduct, the range of causes that might prevent society from holding anyone accountable for his actions became potentially limitless. Do we punish the drunk driver who has a family history of alcoholism? A bigoted employer, reared in a segregationist environment, who was taught that blacks are inferior? The fraudulent and manipulative businessman who was raised in a poor family and who had never experienced the good life? The abusive father or husband whose parents mistreated him? A thief or drug pusher who was raised in a dysfunctional family and who received a poor education? A violent gang member, rioter, or murderer who attributes his rage, aggression, and lack of respect for authority to a racist society that has oppressed him since birth? Which of these individuals, if any, should be excused for his conduct? Can we really make any principled distinctions among them?

An effective criminal justice system—one that holds people accountable for harmful conduct—cannot be sustained when there are boundless excuses for violent behavior and no moral authority for the state to punish. If people know that they are not going to be held accountable because of a myriad of excuses, how will our society be able to influence behavior and provide incentives to follow the law? How can we teach future generations right from wrong if the idea of criminal responsibility is riddled with exceptions and our governing institutions and courts lack moral self-confidence? A society that does not hold someone accountable for harmful behavior can be viewed as condoning, even endorsing, such conduct. In the long run, a society that abandons personal responsibility will lose its moral sense, destroying, above all, the lives of the urban poor.

This is not surprising. A system that does not hold individuals accountable treats them as less than full citizens. In such a world, people are reduced to the status of children or, even worse, treated as though they were animals without a soul.

There may be a hard lesson here. In the face of societal injustice, it is natural and easy to demand recompense or a dispensation from conventional norms. But all too often, doing so involves the individual accepting diminished responsibility for his future. Doesn’t the acceptance of diminished responsibility shackle the human spirit from rising above the tragedies of one’s condition? When we demand something from our oppressors—more lenient standards of conduct, for example—are we merely going from a state of slavery to a more deceptive, but equally destructive, state of dependency?

What’s more, efforts to rehabilitate criminals will never work in a system that often neglects to assign blame to individuals for their harmful acts. How can we encourage criminals not to return to crime if our justice system fosters the idea that it is the society that has perpetuated racism and poverty that is to blame for aggression and crime, not the individual who engaged in harmful conduct? Thus, it is society, not the wrongdoer, that is in greatest need of rehabilitation and reform.

What a painful irony it is that the transformation of the criminal justice system has had and will continue to have its greatest negative impact on our urban areas. It is there that modern excuses for criminal behavior abound—poverty, substandard education, faltering families, unemployment, a lack of respect for authority because of deep feelings of oppression. Doubtless the rights revolution had a noble purpose: to stop society from treating blacks, the urban poor, and others as if they were invisible, not worthy of attention. But the revolution missed a larger point by merely changing their status from invisible to victimized. Minorities and the poor are human beings—capable of dignity as well as shame, folly as well as success. We should be treated as such.

 

 

 
America's legal system has forgotten that equality also means holding people equally responsible.
City Journal Autumn 1994.
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