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Zachary Hoskins (University of Nottingham), "Punishment’s Burdens on the Innocent”
Forthcoming, Journal of Applied Philosophy
Critics of state punishment often point out that it sometimes involves the infliction of burdens on innocent people: namely, those who are falsely convicted. Estimates vary on the rate of false conviction, but we know that, even in a system with robust legal protections, some significant number of innocent people will be mistakenly convicted and punished. Some scholars have suggested that the fact that innocent people are foreseeably punished is a key challenge to the legitimacy of our criminal justice system.
The falsely convicted are not the only innocent people for whom punishment foreseeably creates substantial burdens, though. The innocent children and other dependents of those convicted and punished also bear significant burdens, such as financial stress, social stigma, abuse, mental health challenges, and other problems (and here I mean dependents of the actually guilty as well as the falsely convicted, as the dependents are typically innocent regardless). Like those who are falsely convicted and punished, the children and other dependents of people who are punished are innocent of the crime for which the punishment is being imposed. In both cases, then, these individuals do not deserve the burdens punishment creates for them. So, we have two groups of innocent people for whom punishment creates significant undeserved burdens. Given the amount of attention normative penal theory has rightly devoted to the problem of false conviction, it is striking that it has paid comparatively little attention to the undeserved burdens punishment foreseeably creates for innocent dependents. This fact is especially noteworthy given that even on generous estimates of the numbers of people who are falsely convicted, these numbers are far outstripped by the numbers of innocent children and other dependents of people who are punished.
The discrepancy in scholarly attention might suggest that theorists regard the burdens punishment creates for innocent, falsely convicted people as more morally troubling than the burdens it creates for innocent dependents of those punished. But why should this be so?
This is the question I explore in my paper “Punishment’s Burdens on the Innocent.” In the paper, I consider some possible lines of argument for the claim that punishment’s burdens on the falsely convicted are more morally troubling than those it creates for innocent children and other dependents of those punished. One argument focuses on the relative severity of the burdens, the thought being that the burdens punishment creates for the falsely convicted are more severe than those it creates for innocent dependents. A second argument draws on the intentional-foreseeable distinction and contends that punishment intentionally harms the falsely convicted but only foreseeably harms innocent dependents. A third argument holds that punishment conveys censure to the falsely convicted but not to innocent dependents of those punished, and it is this censure of innocent people that is especially troubling. A fourth argument claims that the state is responsible for the burdens punishment creates for the falsely convicted but not for the burdens it creates for innocent dependents. And a fifth argument holds that the state could compensate innocent dependents, but not (typically) the falsely convicted, for the burdens of punishment. Ultimately, I’m not persuaded by any of these arguments. I contend that we should regard the burdens punishment creates for innocent dependents as at least as morally troubling as those it creates for the falsely convicted.
What follows if I’m right? I don’t regard the paper as advancing an argument for the abolition of criminal punishment. The argument I make is comparative: the burdens punishment creates for innocent dependents of those punished are at least as serious a challenge to the legitimacy of criminal punishment as the burdens it creates for those who are falsely convicted and punished. How to respond to these challenges is a further question, and my own preference is for reform rather than abolition. In the paper’s final section, I discuss some examples of reforms that could help to demonstrate that the state is committed to minimizing the burdens punishment creates for innocent dependents of those punished. Notably, these reforms need not include sentencing offenders with children or other dependents less severely than offenders without dependents, which some might worry would compromise ordinal proportionality in sentencing. But other reforms are available, including reducing sentence severity across the board, or making more use of noncustodial modes of punishment. It may even sometimes be appropriate for the state to offer compensation to the innocent dependents of those it punishes. These sorts of reforms could go some way toward demonstrating the state’s genuine commitment to minimize the burdens punishment creates for innocent dependents.
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