Friday, December 4, 2009
Stuart P. Green (Rutgers Law School-Newark) has posted Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders (University of Chicago Legal Forum, 2009) on SSRN. Here is the abstract:
Criminological studies consistently indicate that a disproportionate percentage of crimes in our society, both violent and non-violent, are committed by those who are impoverished. If we assume that at least some of the poor who commit crimes are poor because they fail to get from society what they “deserve” in terms of economic or political or social rights, the question arises whether this fact should affect the determination of what such people “deserve” from society in terms of punishment. The question is all the more pressing given recent Census Bureau figures indicating that the economic recession that began in 2008 has resulted in a higher percentage of Americans living below the poverty line than at any point since 1997, with figures for 2009 certain to be even worse given rising unemployment rates.
Most scholars who have been concerned with this issue have assumed that there is one set of principles that will explain the proper relationship between distributive and retributive justice: The fact that an offender has been denied the basic entitlements of a just society, however defined, is taken to have implications for criminal liability across the board, regardless of the offense charged. The argument that I develop here suggests that a proper analysis of the relationship between distributive and retributive justice should proceed on a case-by-case basis. Such an analysis would take account of three distinct factors: First, it would look to the specific kind of offense with which the offender is charged. The fact that an offender is deeply and unjustly disadvantaged might be relevant to determining his blameworthiness for committing one kind of criminal offense (say, an offense against the person) but not another kind of offense (say, an offense against property or an offense against the administration of justice). Under this approach, we need to consider what it is that makes an offender blameworthy for committing a particular kind of offense in the first place, and then ask whether and how such blameworthiness is affected by his disadvantage. Second, we need to look at the precise form that the offender’s disadvantage takes. The fact that an offender has been denied any reasonable opportunity to obtain property, for example, might be relevant to determining his blameworthiness for committing a particular kind of offense in a way that his being denied the opportunity to participate in the political process or the right to certain kinds of basic police protection by the state might not. Third, we need to consider the economic and social circumstances of the crime victim, if any. For example, a criminal act directed by a disadvantaged offender at a similarly disadvantaged victim might be blameworthy in a way that the same crime directed at a privileged member of the political or economic elite would not.