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Alexander and Kessler-Ferzan's Crime and Culpability introduces the reader to the philosophical underpinnings of retributive criminal law, exposes the logical flaws of its current applications, and constructs an alternative "ideal theory," which the authors argue will resolve the shortcomings and contradictions in prevailing understandings and applications of criminal law.
Though the aim of the book is clearly philosophical, the authors open by rejecting the traditional philosophical accounts of the purposes of justice--compensation of the victims of crime; rehabilitation of social offenders; and the inculcation of virtue in the citizens--as the actual goal of criminal justice. Instead, they assert, the only real concern of criminal law is deterrence--the prevention of harm in the society. An explanation for this opening assertion is not offered, nor a cultural or national context that would situate their rigid position, but contrary to a wealth of penal theory, the authors assume that the deterrence to be the sole objective. This leads them to position retributive justice, the punishment response to crime, as the only sound answer to criminal culpability.
First, the authors flesh out a double irony regarding criminal law, its (decided) objective, and the penalties it imposes: whether or not a criminal defendant actually causes harm is immaterial to whether he/she is in violation of the criminal law; and likewise the question of actual harmdoing is immaterial to the amount of punishment he/she should receive. The authors launch their study with the aim of exploring the doctrines of a retributive criminal law, structured strictly by the concern that defendants receive the punishment they deserve--and only the punishment they deserve--for having made the decisions they made, to violate their society's norms, without the appropriate concern they owe to others.
The authors identify themselves, from the outset, as firm proponents of the retributive justice model. They then flesh out the broad landscape of this theoretical allegiance, locating themselves as "moderate retributivists" on the argument that weak retributivism (that holds that negative desert is merely necessary but not sufficient retribution for punishment) is too weak to grant substantial guidance to the criminal law, while strong retributivism ( that holds that desert is necessary and sufficient for punishment and mandates punishment) can result in a government's monomaniacal concern with punishing its offenders, to the neglect of other important interests, diverting resources from, say, health and safety, to serve the purpose of punishment, or risking wrongful conviction of the innocent in its fervor to punish the guilty. Moderate retributivists count punishment as a good, but as one good among many, and one that can be outweighed by other goods, which may be put at risk by too great emphasis upon punishing the guilty. Deserved punishment, the authors argue, is a positive value, while undeserved punishment, if administered with the knowledge that it is undeserved, is always a trumping disvalue. Evidence is not given for why we should accept the assumption that punishment is unequivocally a good.
Having established their philosophical position, the authors then proceed to unpack the finer details of retributivism: how retributive desert is measured; whether that desert is comparative or non-comparative across offender populations; how negative retributive desert (punishment) meshes with positive retributive desert (reward); the currencies of retributive desert--pleasure and pain, liberty and its loss, financial loss or gain; the distribution criteria for deserts--whether subjective or objective; and how great a risk exists, given that penology is constructed within imperfect institutions of human creation, that punishment will turn out to be excessive or insufficient . The overriding question that guides the investigation is how present systems translate culpability into appropriate units of suffering.
Arguing squarely from the retributivistic worldview, then, where punishment is of sufficient importance to be the major organizing principle of criminal law, despite the conundrums of that model of justice as it actually comes to be practiced, the authors proceed to sketch out the doctrines of a criminal justice system that would answer some of the conundrums they have identified, and offer a superior way to rightly calculate the "appropriate units of suffering" deserved by the culpable. The new principles, which they propose to ground their "ideal theory" of retributive justice, where the current paradoxical practices would be resolved and overcome, include: the culpability upon which retributive desert must rests should be determined according to: the risk to others' legally protected interests that the offender believes him/herself to be undertaking by his/her actions; the degree of validity of the reasons motivating the offender to impose those risks upon others; the results of culpable acts are immaterial to the actor's culpability; inchoate culpability (incomplete attempts to harm others' legally protected interests, or solicitation, conspiracy, or complicity to harm others' interests) constitute criminal acts; an actor is not culpable until he/she engages in the conduct that he/she believes to risk others' legally protected interests; and where acts may impose risks to several interests simultaneously and for varying amounts of time, culpability should be determined holistically as a function of the degree and types of all such risks and their duration. The underlying assumptions that ground the principles of the ideal theory are
Finally, the authors imagine what a criminal code would look like, were it structured around culpability and retributive desert in a way that is faithfully grounded in these guiding principles. This ideal code's most radical effect turns out to be the elimination of what on the surface seems to be criminal law's most essential aspect, the "special part" played by criminal law in a system of justice in toto--the list of "specific offenses" connected to the legally protected interests of others. The "ideal theory" removes the legal spotlight from the legally protected interests of others (that criminal acts place at risk without adequate justification), and refocuses it on the offender's perceptions of his/her act, to the effect that: unperceived risks do not render the offender culpable; certain justifications for otherwise culpable actions nullify or reduce the culpability of those acts; and the locus of culpability becomes restricted to the willed bodily movement alone, so that, with few exceptions, omissions are not culpable.
Alexander and Kessler-Ferzan's Crime and Culpability represents a difficult philosophical read, probably accessible--and of interest--only to philosophers and students of the law. For the latter, it will serve effectively as a comprehensive introduction to retributive criminal law theory. It is well-written, well-argued, and thorough. However, because the authors launch their study from the safe seaboard of their own allegiance to retributivism, assuming that approach to be the only viable response to culpability, at no time in their study do they place in question in toto the retributive approach to criminal law, and thus the student will not be challenged to look beyond retributive theory to explore alternative responses to crime. Given the flimsy, if not contradictory, evidence for the deterrent value of punishment and the overwhelming proof of the individual and (ultimate) societal harm effected by retributive responses to crime, especially where punitive responses are harsh and fervently applied, a balanced introduction to criminal theory should have at least noted the spotty evidence for deterrence and mentioned that this evidence has driven many societies toward alternative, non-retributive approaches to crime, such as the "restorative justice" model. A broader introductory chapter, in place of the authors' extended statement of their personal allegiance to retributivism (or at least a justification for that allegiance), would have rendered this work more philosophically generous and better suited as an introductory text to the field of criminal law theory.
© 2011 Wendy C. Hamblet
Wendy C. Hamblet, Ph.D., Associate Professor of :Liberal Studies, North Carolina A&T State University.