|
|
Alice Ristroph : RESPECT AND RESISTANCE IN PUNISHMENT THEORY(3) |
|
Alice Ristroph : RESPECT AND RESISTANCE IN PUNISHMENT THEORY(3)
III Respect and the Rights of the Guilty
A. Rationalizing Defendants' Rights
As odd as a right to resist punishment may sound to contemporary ears, American law does, of course, recognize other rights of accused persons--rights seemingly far more useful than the right to resist, perhaps, because they are legally enforceable. [108] The arguments advanced in favor of these rights may be roughly divided into instrumental justifications, which typically urge that the rights of the accused are essential to the sorting mechanism by which guilty persons are convicted and the innocent go free, and deontological claims about the inherent moral worth of every person. [109] I suggest that Hobbes's theory of punishment can inspire a third way to conceptualize the rights of the accused. Closer to the deontological justifications, but not dependent on any particular account of moral duty, this neo-Hobbesian account explains defendants' rights as weaker relatives of the right to resist punishment. [110] Moreover, the right to resist helps us conceptualize what it means to respect a criminal even as we punish him. Respect requires, among other things, an acknowledgment that punishment is at odds with the rational self-interest and the human dignity of the condemned. We respect accused persons by acknowledging their (non-legally-enforceable) right to resist punishment, and perhaps by recognizing a diluted version of this "blameless liberty" in the enforceable claim rights of criminal defendants.
Before examining defendants' rights as derivative of the right to resist punishment, it is worth noting that existing defenses of these rights often seem incomplete or unsatisfying. When the complaint is made, as it often is, that criminal defendants have "too many rights," a typical rejoinder is that defendants' rights are essential to a truth-seeking adversarial process in which guilty persons will be convicted and innocent ones will go free. [111] For example, the defendant's right to present evidence in her own defense (which the Supreme Court has characterized as an essential element of due process) [112] helps ensure that jurors or judges can consider all relevant information before making a factual determination of guilt. That a right to present evidence would contribute to truth-seeking is simple and intuitive enough. Scholars have developed far more complex arguments to explain how other rights of the accused, such as the right to remain silent, also protect innocent defendants and the truth-seeking mission of the criminal justice process. [113] Whatever the precise argument, the refrain of these justifications of defendants' rights remains the same: legal protections for all defendants serve societal interests in sorting the guilty from the innocent.
Such arguments for defendants' rights depend on uncertainty as to guilt or innocence, and they are less persuasive when there is strong evidence of the defendant's guilt. The Fourth Amendment exclusionary rule provides a stark example: under this rule, evidence of guilt is excluded if it was obtained in violation of certain procedural requirements. Since, presumably, the presence of incriminating evidence will often correspond with an actually guilty defendant, the exclusionary rule clearly helps the guilty. For that reason, commentators have repeatedly urged courts to abandon or circumscribe the exclusionary rule. [114] Similarly, many commentators--unconvinced by the claim that the right to silence helps the innocent--have criticized the scope of the Fifth Amendment privilege against self-incrimination. [115] Finally, the enumerated right that most explicitly protects guilty defendants-- the Eighth Amendment right to be free of cruel and unusual punishment--is probably the least enforced of the criminal provisions of the Bill of Rights. [116] Our constitutional doctrine and political climate have not been welcoming to the notion of rights for the guilty as opposed to rights for the accused-but-potentially-innocent.
Occasionally, however, we see a different argument for defendants' rights, one that invokes the importance of respect for the dignity of all humans--even guilty ones. As "respect for the offender" has been a theme of retributive theories of punishment, [117] the respect-based account of defendants' procedural rights is often presented as a specifically retributive theory. Paul Butler has explained that "[r]etributivists believe that punishment communicates respect for the criminal by recognizing him as a moral agent," and according to Butler, the "Bill of Rights codifies the retributive concern for the criminal's humanity." [118] Respect can provide a far more stable ground to support rights of all accused persons than does a concern to protect the innocent or a societal interest in sorting innocent defendants from guilty ones. But it is worth elaborating what kind of respect is due to those who break the law--after all, criminal defendants are more often targets of hatred, fear, revulsion, and condemnation than objects of respect.
B. Theorizing Respect
Respect means, literally, to look (back) at, but for at least a few centuries, the word has been used in two different senses. The first simply implies a neutral acknowledgment--"I will not address any question with respect to the exam." But in a second, more normatively meaningful sense, respect is a particular kind of recognition or regard: to respect is to look at with admiration or deference. This is the sort of respect of which Aretha Franklin sang, and that Rodney Dangerfield did not get. Respect in this sense is closely associated with the concepts of equality and dignity. To treat a person with respect is to acknowledge her, to take her into account, but in a specific way: not to mock her, but to esteem her. Respect for criminal offenders, as the phrase is usually invoked today, is simply a subsidiary of a broader liberal commitment to "respect for persons"--a recognition of the equality and inherent dignity of all human persons.
But how, specifically, does one punish respectfully? As James Whitman has chronicled, "respect of persons" was once associated with deeply inegalitarian practices, and two very different notions of respect have informed penal practices in England and its former colony, the United States, on one hand, and continental Europe, on the other. [119] Respect of persons, on the European continent, meant taking into account the social status of the particular offender. Respect, in this inegalitarian sense, called upon punishers to treat offenders according to their pre-criminal social status; upper-class offenders were addressed more formally and given greater privileges and better treatment than lower-class offenders. [120] This notion of "respect of persons" depended on a discontinuity, not between the guilty and the innocent, but between the upper-class guilty and the lower-class guilty. As Whitman notes, Blackstone praised English law over the laws of the European continent precisely because the English common law imposed punishments "without respect of persons." [121]
In contrast to the inegalitarian "respect of persons," the modern notion of respect for persons is strongly egalitarian. It emphasizes the universal dignity of all humans, criminal or not. We respect the fact that the offender is a person; we do not privilege him or her based on the particular kind of person he or she is. According to Whitman, European punishment has moved from a hierarchical notion of respect to an egalitarian one. Because European countries once criminalized certain offenses committed almost exclusively by high-status offenders, such as dueling, they were used to treating at least some offenders well. It was possible, then, for Europe to "level up" and extend to all offenders the respect formerly reserved for prisoners from the upper classes. [122] America, in contrast, has never had a large number of high-status offenders. [123] The American criminal justice system is nominally egalitarian among offenders, but it tends to treat all offenders badly--and as clearly inferior to those without criminal records. Somewhat counter-intuitively, Whitman argues, the more socially stratified Europe produced penal systems more deeply committed to principles of (equal) respect for all prisoners. [124]
When contemporary retributivists refer to respect for criminal offenders, they invoke the egalitarian model rather than the stratified one. Indeed, some theorists argue that it is a commitment to equality that requires retributive punishment in the first place. [125] But this argument often leaves retributivists with the paradoxical claim that we respect offenders by treating them worse than we do non-offenders. As formulated by Herbert Morris, all persons must share equally the benefits and burdens of the law. [126] On this account, we should understand crime as an attempt by the wrongdoer to exempt himself from the burdens of self-restraint imposed by the criminal law: by committing a crime, the criminal gains unfair benefits. Punishment is then required to restore the equal distribution of benefits and burdens. We restore equality via the temporary inequality of punishment. In doing so, we recognize the offender as a responsible moral agent. Morris's argument was framed as a challenge to the then-popular rehabilitative approaches to punishment. Morris argued that to view crime as an illness and the criminal as a sick person in need of rehabilitation is to deny the criminal's autonomy. In contrast, penalties imposed as just deserts recognize the choice exercised by those who break the law. By inflicting suffering for those disobedient choices, we recognize them as choices and thus respect the wrongdoer as a free and autonomous agent. [127]
Another version of egalitarian retributivism focuses explicitly on the relative positions of victim and wrongdoer. Punishment is depicted as "the infliction of suffering to symbolize the subjugation of the subjugator . . . . And the message carried in this subjugation is 'What you did to her, she can do to you. So you're equal."' [128] As inequality is the path to equality in Morris's view, here disrespect is the path to a balance of respect. The offender himself is treated with disrespect--he is stigmatized--in order to achieve equality and respect on a broader social scale. [129]
To many ears--including my own--these claims of respectful punishment ring hollow. [130] It is difficult to see how we can simultaneously stigmatize an offender and show respect for him; stigma and respect seem fundamentally incompatible. Morris's account establishes, at most, that punishing for retributive reasons is marginally more respectful than incarcerating for rehabilitative reasons--a weak defense of the claim of respectful punishment. And as Morris himself acknowledged, the egalitarianism of his benefits-and-burdens claim depends on the premise that prior to the criminal act, the benefits and burdens of society were in fact equally distributed, a premise that is probably inaccurate in most existing societies. [131] Other retributive arguments are simply circular: they assert that responsible agents must be punished, and that failure to punish is failure to recognize the criminal as a responsible agent. [132] In fact, judgments of responsibility and agency are independent of judgments of how to respond to a responsible agent. [133] Finally, the retributive claim that punishment is respectful, especially when defended with philosophical abstractions or Hegelian metaphysics, seems particularly inconsonant with contemporary American penal practices. Jails and prisons are unpleasant places where nearly every aspect of a prisoner's life is subject to someone else's control: prisoners are told when (and often, if) they can eat, sleep, shower, read, work, see visitors, and so on. [134] Prisoners are supervised in the shower and at the toilet, strip-searched on occasion, and at all times required to obey the orders of prison officials. With respect like this, who needs insults?
Not everyone will agree that convicted criminals are entitled to any form of respect at all. But assuming that some measure of respect is appropriate, retributive respect is hardly satisfactory. It is weak in its aspirations and unfulfilled in practice. Can Hobbes--not known as a theorist of respect--offer a more attractive vision? Perhaps Hobbes can remind us of what we should see when we look at a criminal offender. Hobbes, with his steadfast commitment to an equal right of self-preservation, would see a vulnerable human being about to encounter physical force that is almost certain to overwhelm him. To be sure, this vulnerable being may be a cruel and vicious criminal, a menace to innocent victims and to society at large. And yet, if we are to respect the offender as a person, and if we share Hobbes's egalitarian individualism, we will see that the criminal's nasty acts do not eliminate his right to try to preserve himself. The right to self-preservation--a "blameless liberty"--is inalienable.
The Hobbesian account of punishment invites a very different conception of respect for wrongdoers, one more realistic and more compelling than that provided by retributivists. On this account, punishment is so great an intrusion on human freedom, dignity, and self-preservation that the only way to respect the humanity of those we punish is to acknowledge their right to resist. Respect via the right to resist is similar to claims that individuals should not be forced to dig their own graves, or supply the rope for their own hangings, or pay for their executioner's bullets, but it goes further. [135] Hobbesian respect for criminals refuses to blame humans for acting on the fundamental and rational drive for self-preservation. In other words, Hobbesian respect would not simply refuse to require Socrates to drink the hemlock cooperatively. Had Socrates agreed to escape with Crito, Hobbesian respect would have recognized this action as a blameless exercise in self-preservation. [136]
Of course, the rhetoric of respect will never lead society to tolerate criminals who, like Clyde Barrow, resist punishment by harming the state officials who try to impose it. Violent resistance may be understandable if we take the drive to self-preservation seriously, but societal interests demand that this resistance not be condoned or overlooked. Nevertheless, the fact that societies will condemn attacks on law enforcement officials need not end the discussion of the right to resist punishment. Perhaps there are other, less harmful, ways to resist. Were we to think of punishment in more Hobbesian terms, we might understand constitutional and statutory rights of the accused and the already-convicted as forms of legitimate, nonviolent resistance to punishment.
The Fifth Amendment right not to be compelled to testify against oneself provides an excellent example. As noted above, scholars have strained to explain the Fifth Amendment right as a service to innocent defendants, but not everyone is convinced. [137] But from a more Hobbesian perspective, the right to remain silent when questioned by would-be punishers is a logical corollary of the fundamental right to preserve oneself; it matters little whether the right to silence serves the innocent or helps the criminal justice system identify the truly guilty. Indeed, the very phrase "self-incrimination" suggests a concern of special importance to the guilty, who are presumably more likely to incriminate themselves than the innocent. A privilege against self-incrimination is a privilege of those who do have incriminating things to say-- and its constitutional status cannot be explained by a concern to protect innocents. The relationship between a right to silence and a right to resist punishment is made especially clear by Hobbes's claim, echoed in contemporary constitutional doctrine, that testimony can be compelled so long as the defendant is assured immunity from punishment. [138]
Defendants who choose to speak (or have others speak on their behalf), rather than remain silent, sometimes might be understood as resisting punishment. As noted above, the right to present evidence in one's own defense has been characterized as an essential element of due process and a key element of the truth-seeking enterprise. [139] But we could explain this right as well or better with an appeal to the concept of self-preservation: those who face criminal charges and punishment have a right to try to exculpate themselves, and proclamations of innocence are reasonable attempts to avoid punishment. [140] This fits within the Hobbesian view that there is no duty to submit to punishment.
To be clear, the constitutional rights of the accused and convicted could be understood as forms of permissible resistance to punishment, but these rights are both less and more potent than Hobbes's version of the right to resist. They are less potent, because they do not permit actual violent resistance. [141] They are more potent, because they are enforceable. It would have been logically contradictory for Hobbes's unified, absolute sovereign both to punish and to protect a right of resistance, but our divided government permits the judiciary to enforce certain forms of resistance to legislative or executive power.
Finally, I do not mean to deny the instrumentalist justifications for the rights of the accused; some procedural rights do protect the innocent or assist in distinguishing innocent defendants from guilty ones. But the rationales for defendants' rights are not exhausted by the interests of the innocent or society at large. In addition to whatever truth-seeking function the right to silence, the right to present a defense, and other rights of the accused may serve, they are also mechanisms of self-preservation. As such, they belong to the guilty as much as the innocent.
Conclusion: Resisting Resistance
The account of punishment offered here will provoke resistance. When punishment theorists speak of the state's right, or authority, to punish, they usually rely on the Hohfeldian sense of right: a claim that implies a correlative duty. [142] If the state has a right to punish criminals, criminals ipso facto have a duty to let themselves be punished. A Hobbesian theory disrupts this neat marriage of right and duty. [143] It is my hope that the disruption will be a productive one for punishment theory, one that will encourage refined accounts of the relationship between the consent that allegedly legitimizes government and the force that government exercises against the disobedient.
One potential objection to Hobbes, more pragmatic than philosophical, posits that it is not in fact rational to resist punishment. It is foolish for an individual to wage battle against the vast mechanisms of physical force possessed by a modern state. If self-preservation is the individual's paramount goal, it is better to accept non-capital punishment than to flee. Here one might think of Victor Harris, who in 2001 attempted to flee a police cruiser and avoid a speeding ticket. [144] The ensuing high-speed chase ended when a sheriff's deputy maneuvered his vehicle to hit Harris's car, sending Harris over an embankment and leaving him a quadriplegic. [145] One newspaper account attributed to Harris these "saddest words": "If only I had pulled over . . . ." [146] There is little doubt that in a society like the contemporary United States, where law enforcement officers wield the means of force and substantial discretion to use it, physical resistance is usually not only futile but counterproductive. [147] But this pragmatic point does not diminish the power of Hobbes's claim that if there is any hope of success, resistance is a rational human response.
More challenging to a Hobbesian understanding of punishment, in my view, will be philosophical claims that humans cannot or should not preserve themselves at the expense of membership in a community. Political thinkers both before and after Hobbes have argued that human beings can exist and thrive only in organized society. [148] Some may view the moral claims of community as reasons to reject Hobbes's radical individualism and the right to resist punishment that it implies. [149] Given, however, that contemporary liberal political theory tends to endorse a fairly robust individualism, it may be fruitful to see whether and how such individualism can respond to Hobbes's challenges.
Finally, even those unpersuaded by Hobbes may find in him admirable honesty and humility. In the many different theories advanced to justify punishment as a political institution, one important variable is the ground the theory claims to cover. Some theories purport to justify punishment completely, so that the imposition of penalties is not an evil to be regretted but an affirmative good--perhaps even a moral duty. Many retributive theories fall into this category. [150] Other theories characterize punishment as a necessary evil, a dirty activity that always leaves something to be regretted. [151] Under this second approach, social utility or other considerations may lead us to decide that to impose punishment is better than to do nothing, but we must acknowledge the damage that punishment inevitably does. Hobbes's theory clearly belongs with the latter of these two options. Hobbes did not present punishment as a completely legitimate political practice, though he viewed it as a necessary and appropriate task. Punishment, on Hobbes's account, is never actually authorized by every single subject--it is never authorized by the individual who suffers it. For that individual, punishment is the rule of the stronger, violence imposed by a person or persons with superior physical might. Against such an imposition, it is only human to resist.
[108]. The United States is hardly the only country to recognize rights of the accused, but it is usually viewed as having, at least on paper, an especially broad conception of defendants' rights. For discussions of defendants' rights in comparative perspective, see Mirjan Damaska, Structures of Authority and Comparative Criminal Procedure, 84 Yale L.J. 480 (1975) and Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int'l L.J. 1 (2004).
[109]. For a catalogue of instrumental and rights-based arguments for the privilege against self-incrimination in particular, see Green, supra note 8, at 640-68.
[110]. As becomes clear below, this account is loosely Hobbesian, but it is not Hobbes's own view. I do not argue that Hobbes himself would defend legally cognizable defendants' rights such as those nominally protected in the Bill of Rights to the U.S. Constitution.
[111]. See, e.g., Akhil Reed Amar & Johnnie L. Cochran Jr., Debate, Do Criminal Defendants Have Too Many Rights?, 33 Am. Crim. L. Rev. 1193, 1196- 97 (1996) (Amar arguing that the criminal justice system provides rights that "benefit the guilty without helping the innocent"); id. at 1198 (Cochran arguing that the rights of the accused are necessary to protect innocent defendants).
[112]. Chambers v. Mississippi, 410 U.S. 284, 294 (1973) ("The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process.").
[113]. See, e.g., Daniel J. Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 Harv. L. Rev. 430 (2000).
[114]. See, e.g., Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (1997); Robert L. Misner, In Partial Praise of Boyd: The Grand Jury as Catalyst for Fourth Amendment Change, 29 Ariz. St. L.J. 805, 805 (1997) (arguing that the exclusionary rule "sometimes frees the certainly-guilty").
[115]. See, e.g., Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to Remain Silent, 94 Mich. L. Rev. 2625, 2631 (1996) ("[A]s embodied in the United States Constitution, the privilege against self-incrimination was not intended to afford defendants a right to remain silent or to refuse to respond to incriminating questions."); Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 679-80 (1968).
[116]. The Supreme Court has often stated that successful Eighth Amendment challenges are, and should be, rare. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 963 (1991); Ingraham v. Wright, 430 U.S. 651, 667-68 (1977); see also Ristroph, supra note 53, at 307-14.
[117]. See supra note 12 and accompanying text.
[118]. Paul Butler, Much Respect: Toward a Hip-Hop Theory of Punishment, 56 Stan. L. Rev. 983, 1003 (2004).
[119]. James Whitman, Harsh Justice: Criminal Justice and the Widening Divide between America and Europe 41-43 (2003) (emphasis added).
[120]. Id. at 9-11, 104-07.
[121]. Id. at 42 (citing William Blackstone, 4 Commentaries on the Laws of England 370-71 (1979) (1765-69)).
[122]. See, e.g., id. at 9-11, 125-50.
[123]. See, e.g., id. at 178.
[124]. See id. at 191-92.
[125]. In addition to the works of Herbert Morris and Jean Hampton discussed below, see Laura Appleman, Retributive Justice and Hidden Sentencing, 68 Ohio St. L. J. 1307, 1335-36 (2007); John Finnis, Punishment's Formative Aim, 44 Am. J. Juris. 91, 102 (1999).
[126]. See Morris, supra note 12, at 95.
[127]. Id. at 102-05. Though Morris did not mention Hegel, his account closely approximates the Hegelian argument that punishment reformulates the offender's criminal act--the violation of another's freedom--as a universal law and applies it to the offender himself, and for this reason the imposition of punishment is necessary to respect the offender's rationality. See G.W.F. Hegel, Elements of the Philosophy of Right 128 (Allen W. Wood ed., H.B. Nisbet trans., Cambridge Univ. Press 1991) (1820).
[128]. Hampton, supra note 104, at 13.
[129]. Id.
[130]. See Christopher, supra note 9, at 967-70; Dolinko, supra note 14, at 1632-33, 1642-56.
[131]. Morris acknowledged that if the initial distribution of benefits and burdens is not equal, "the difference between law and coercion disappears." Morris, supra note 12, at 103. He did not himself address whether American society or other existing systems satisfied the equal initial distribution requirement.
[132]. See, e.g., Dan Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239, 260-61 (2009) (arguing that retributive punishment "communicates to the offender that we are respecting him by holding him responsible as a moral agent," and stating that a failure to punish may be taken "as a statement of condescension" to the offender).
[133]. In other words, unless one is already committed to the retributive view that bad acts by responsible agents necessarily require a punitive response, one can easily recognize a bad act as a deliberate choice of a responsible agent and still decline to respond by punishing.
[134]. See Alice Ristroph, Sexual Punishments, 15 Colum. J. Gender & L. 139, 160-61 (2006) (describing the lack of privacy and degree of official control in prisons). There may be ways to operate prisons with some modicum of respect--Whitman describes requirements in European prisons that officers address prisoners in formal terms, or knock before entering cells--but such requirements do not exist in American prisons. See Whitman, supra note 119, at 65-90.
[135]. See Erwin N. Griswold, The Fifth Amendment Today 7 (1955) ("[W]e do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands.").
[136]. Larry May has reached a similar conclusion, with provisos: "Hobbes would think that Socrates could have justifiably avoided his death sentence, as long as avoiding that sentence truly did not threaten the legal order .... Hobbes does not say that it is justifiable to break any law the breaking of which would not threaten the legal order. Rather, he holds the much more restricted and reasonable view that this is only true in cases of peril to self." Larry May, Hobbes on Fidelity to Law, 5 Hobbes Stud. 77, 86 (1992). I am not sure that this last provision is much of a restriction, given that Hobbes considered any threat of "wounds, chains, or imprisonment" to pose a peril to self-preservation. See supra text accompanying note 80. And Hobbes does not limit the right to self-preservation to circumstances in which the legal order is not threatened; Hobbes does not require the individual to sacrifice his own safety for the sake of the larger community.
[137]. See Seidmann & Stein, supra note 113.
[138]. See Hobbes, supra note 18, at 151 ("If a man be interrogated by the sovereign ... concerning a crime done by himself, he is not bound (without assurance of pardon) to confess it ....") (emphasis added); see also Kastigar v. United States, 406 U.S. 441 (1972) (upholding federal law that permits compelled testimony provided the witness is promised that her statements will not be used to prosecute her). Cf. Communist Party v. Subversive Activities Control Bd., 376 U.S. 1, 180 (1961) (Douglas, J., dissenting) (tracing the privilege against self-incrimination to Hobbes and the right to resist punishment). Michael Green has analyzed the Hobbesian argument for a privilege against self-incrimination; he ultimately seems to conclude that a virtue-based or republican political theory provides a non-contractual duty to obey the state that supplants Hobbesian contractualism and precludes a privilege against self-incrimination. See Green, supra note 8, at 675-80, 716.
[139]. See Chambers v. Mississippi, 410 U.S. 284 (1973).
[140]. This principle was reflected in the now-defunct "exculpatory no" doctrine, which used to serve as a defense to charges under 18 U.S.C. § 1001 (2000). Under that doctrine, a person was excused from criminal liability if her only false statements to a federal officer were simple denials of guilt. See Brogan v. United States, 522 U.S. 398, 401-02 (1998) (describing, and rejecting, the doctrine).
[141]. For example, the Eighth Amendment right to be free of cruel and unusual punishment does not permit a prisoner to kill officials who punish him cruelly.
[142]. See Hohfeld, supra note 8, at 717.
[143]. See Curran, supra note 76 and accompanying text.
[144]. See Scott v. Harris, 127 S. Ct. 1769, 1772-73 (2007).
[145]. Id. at 1773. Harris sued the police deputy who pushed him over the embankment, alleging an unconstitutional use of deadly force. Id. The Supreme Court found that the deputy was entitled to summary judgment, basing its finding on a videotape of the chase. Id. at 1778-79.
[146]. James J. Kilpatrick, The Unhappy Lot of a Policeman, Tulsa World, Oct. 15, 2006, at G5.
[147]. See Cover, supra note 7, at 1607-08 ("I think it is unquestionably the case in the United States that most prisoners walk into prison because they know they will be dragged or beaten ... if they do not walk. They do not organize force against being dragged because they know that if they wage this kind of battle they will lose--very possibly lose their lives.").
[148]. Indeed, in his famous response to "the Foole," Hobbes himself made the point, though he did not take it to undermine his argument for a right to self-preservation. See Hobbes, supra note 18, at 101-03.
[149]. I thank Rick Greenstein for emphasizing this point.
[150]. Scholars distinguish between mandatory or positive retributivism, which claims that the guilty must be punished, and permissive retributivism, which holds that the guilty may be punished. See, e.g., Donald A. Dripps, Fundamental Retribution Error: Criminal Justice and the Social Pyschology of Blame, 56 Vand. L. Rev. 1383 (2003). Kant's call to "execute the last murderer" illustrates mandatory retributivism. See Kant, supra note 21.
[151]. See, e.g., Cesare Beccaria, Of Crimes and Punishments 112 (Jane Grigson trans., Oxford Univ. Press 1964) (1764) ("It is better to prevent crimes than to punish them.").
|
|
|
|
|
|
