Rights and Wrongs: Rethinking The Foundations of Criminal Justice

CRITICAL CRIMINOLOGICAL PERSPECTIVES
Rights and
Wrongs
Rethinking the Foundations
of Criminal Justice
William C. Heffernan
Critical Criminological Perspectives
Series Editors
Reece Walters
Faculty of Law
Queensland University of Technology
Brisbane, QLD, Australia
Deborah H. Drake
Social Policy & Criminology Department
The Open University
Milton Keynes, UK
The Palgrave Critical Criminological Perspectives book series aims to
showcase the importance of critical criminological thinking when exam-
ining problems of crime, social harm and criminal and social justice.
Critical perspectives have been instrumental in creating new research
agendas and areas of criminological interest. By challenging state
defined concepts of crime and rejecting positive analyses of criminality,
critical criminological approaches continually push the boundaries and
scope of criminology, creating new areas of focus and developing new
ways of thinking about, and responding to, issues of social concern at
local, national and global levels. Recent years have witnessed a flourish-
ing of critical criminological narratives and this series seeks to capture
the original and innovative ways that these discourses are engaging with
contemporary issues of crime and justice.
More information about this series at

http://www.palgrave.com/gp/series/14932
William C. Heffernan
Rights and Wrongs

Rethinking the Foundations
of Criminal Justice
William C. Heffernan
John Jay College of Criminal Justice
New York, NY, USA
Critical Criminological Perspectives

ISBN 978-3-030-12781-7 ISBN 978-3-030-12782-4 (eBook)
https://doi.org/10.1007/978-3-030-12782-4
Library of Congress Control Number: 2019930830
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature
Switzerland AG 2019
This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether
the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse
of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and
transmission or information storage and retrieval, electronic adaptation, computer software, or by
similar or dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are exempt
from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information in this
book are believed to be true and accurate at the date of publication. Neither the publisher nor the
authors or the editors give a warranty, express or implied, with respect to the material contained herein
or for any errors or omissions that may have been made. The publisher remains neutral with regard to
jurisdictional claims in published maps and institutional affiliations.
This Palgrave Macmillan imprint is published by the registered company Springer Nature
Switzerland AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Contents
Part I From Retaliation to Criminal Justice
1 Thinking About Justice 3

An Evaluative Concept 4
Identifying Rights 6
A Question of Motivation 11
2 Thinking About Criminal Justice 15

The Lex Talionis Framework of Negative Reciprocity 17
The Possibility of Dispensing Entirely with Negative
Reciprocity 20
Negative Reciprocity Once Again: Impartial Imposition
of Punishment for Malicious Violations of the Fair Terms
of Cooperation 25
Criminal Justice 29
3 Redressing Grievances: The Retaliation Model 39

The Pure Retaliation Model 42
v
vi
Contents
Moving Away from the Pure Retaliation Model:

The Medieval State as a Weak Enforcement Agency 45
4 Redressing Grievances: The Criminal Justice Model 59

Moving Toward the Criminal Justice Model: The Rise
of the Modern State 62
The Possibility of Taming State Power 75
Part II Taming the Power of the State
5 Decriminalization 83
The Eligibility Principle and Decriminalization 84
The Eligibility Principle’s Ramifications 86
6 Policing the Police 95

Stop and Frisk 97
Systematic Surveillance of Behavior in Public Places 102
7 State-Imposed Punishment 111

Whether, What Kind, and How Much Questions Bearing
on Punishment 112
Prison Conditions: The State’s Carceral Responsibility
for Inmates 120
8 Equality: Racial and Class Disparities in State-Imposed

Punishment 127
Retail vs. Wholesale Approaches to Criminal Justice 130
The Possibility of Achieving Equal Justice on a Case
by Case Basis 134
Afterword 143
Index 145
List of Tables
Table 3.1 Two models of grievance-redress 40

Table 3.2 Distinguishing between different types of injuries 51
Table 6.1 Stop and frisk in New York City 102
vii
Introduction
Is criminal justice a genuine component of justice? Is the word justice

merely window-dressing for an institution that specializes in coercion
and blame? An argument along these lines would emphasize the fact
that criminal justice institutions impose pain on those who’ve already
imposed pain on others. It would treat criminal justice as an exercise
in score-settling—a communal exercise, of course, not an individual
one, but nonetheless an exercise defined by the dynamic of revenge. In
adopting this position, someone might say that criminal justice has no
serious connection to justice. The word justice is a façade: it’s used to
mislead people as to the true function of legally imposed punishment.
Alternatively, it might be argued that the concept of justice is indis-
pensable to understanding criminal justice. On this reckoning, there
is something fitting, even right, associated with punishing offenders,
something that elevates it above revenge and that makes it appropri-
ate to speak of justice when talking about an institution that expresses
the community’s indignation concerning those who have maliciously
harmed others.
Rights and Wrongs argues for the latter hypothesis. In doing so, it
contends that inclusion of the word justice in the title criminal justice
ix
x
Introduction
is no mere coincidence. Instead, it suggests that fair treatment of those

charged with wrongdoing is one of the core values of civilized life. The
term criminal justice should be understood, in other words, to express
a commitment to investigate wrongdoing impartially, to judge griev-
ances fairly, and to impose punishments proportionate to the crimes for
which a conviction is obtained.
Does this always happen? Of course not: the institutions of criminal
justice often fail to honor the principles of justice. Indeed, the criminal
justice system can produce injustice—sometimes randomly, sometimes
on a regular basis.
To note this, however, isn’t to suggest that criminal justice shouldn’t
aim at something other than justice. Rather, it’s to concede the obvi-
ous, and then to add that a system worthy of its name should honor the
word contained in its title.
The chapters that follow develop this point by examining the concept
of justice and by incorporating it into an analysis of criminal justice.
Justice, the book argues, is the master concept used to identify the fair
terms of communal life. Criminal justice involves state imposition of
punishment for grave violations of these terms. On this analysis, crim-
inal justice is a key component of justice—arguably its most important
component, for criminal justice is concerned with violations of the rules
that make social life possible and concerned as well with the considera-
tions of fairness that must be entertained when sanctioning violations of
those rules.
It might be argued that these points are obvious. In one sense, they
are. There’s another sense, though, in which they have to be character-
ized as forgotten features of criminal justice, for many commentators on
the subject confuse it with the term criminology and so think of crimi-
nal justice as something that’s primarily concerned with social control.
It isn’t, the book argues—or at least it isn’t directly concerned with this,
for controlling the citizenry can be achieved without regard to justice (by
locking up suspects without trial, for instance, or by imposing dispro-
portionate punishments). Once this point is borne in mind, it becomes
obvious that a distinction needs to be drawn between criminal justice
Introduction
xi
(an evaluative concept grounded in notions of fairness and individual

rights) and criminology (a neutral concept that seeks to explain behav-
ior, not evaluate it). Criminal justice, when properly administered, will
often promote social control. It won’t always have this effect, though,
so careful analysis is needed as to the relationship between fairness and
social control, analysis that must accord priority to the former factor
over the latter but that can never be wholly indifferent to questions
about social stability.
The book’s argument on behalf of this thesis is divided into two sec-
tions, one concerned with a theoretical analysis of criminal justice, the
other with the application of theory to practice. The first section pro-
poses a surrogacy theory of criminal justice. It identifies rights of indi-
vidual security essential to a just social order, explains why a permanent
enforcement agency (i.e., the state) properly serves as a surrogate for the
public in protecting these rights, and notes the advantages and disad-
vantages of having the state serve as the exclusive authority for imposing
punishment for serious wrongdoing. The advantages of state domina-
tion of the grievance-redress process are substantial, the first section
points out, for the modest apparatus of government that existed in the
Middle Ages was relatively ineffective in suppressing violence whereas
the massive bureaucracy that constitutes modern government has been
effective indeed. The extension of state power in the modern era merits
respect, then, in particular because it’s occurred in a constitutional con-
text that commits the government to honor many rights essential to the
fair resolution of charges of wrongdoing.
The Constitution is not wholly satisfactory in this regard, however—
and its shortcomings as far as justice is concerned are addressed in the
second section of the book. That section considers the underside of state
power: it asks how state power can be tamed, specifically it asks how state
power can be tamed beyond the limitations established through judicial
interpretation of the Bill of Rights. Chapters contained in the second
section address a number of issues where state power needs to be reined
in, among them drug laws, minorities’ experience with the police in
stop-and-frisk settings, the rise of mass incarceration, and uneven racial
xii
Introduction
burdens in sentencing. It’s only by addressing issues such as these (issues

where the courts have held that the Constitution places either no limit,
or no substantial limit, on the government’s exercise of its authority) that
state officials can be induced to honor the principles of justice embedded
in the term criminal justice.
Part I
From Retaliation to Criminal Justice
1
Thinking About Justice
Justice is the master concept for thinking about the fair terms of
communal life. Questions about justice are pertinent to all social relations.
Spouses ask whether their partners have treated them fairly. Members of
sports teams ask whether teammates are doing their fair share. Students
appeal to fairness when evaluating grades awarded by their teachers.
When posing these questions, people think about reciprocity. They
ask whether one person returns benefits for what he/she has received.
These questions aren’t necessarily concerned with exact reciprocity.
Rather, they ask about rough comparability: they ask whether what’s
exchanged is sufficient to sustain an ongoing, trusting relationship
between free and equal people.
Criminal justice is also concerned with reciprocity. Its subject is neg-
ative reciprocity, however—i.e., the return of pain proportionate to
the pain someone has wrongfully inflicted (or at least has attempted
to inflict) on another person. When understood in this light, criminal
justice can be said to address the underside of cooperative activity: it
asks about the appropriate response to acts that violate the rights that
make communal life possible. On this analysis, criminal justice is also
concerned with fairness. Indeed, it wouldn’t be worthy of the name if
© The Author(s) 2019 3

W. C. Heffernan, Rights and Wrongs, Critical Criminological Perspectives,
https://doi.org/10.1007/978-3-030-12782-4_1
4
W. C. Heffernan
its aim were merely to control social interactions, for these interactions
can be regulated in ways that are profoundly unfair (by locking up sus-
pects without trial, for instance, or targeting unpopular minorities). To
understand criminal justice, we thus should begin with the concept of
justice. We should start out by thinking about rights, in other words,
after which we will be able to turn to wrongs.
An Evaluative Concept
In characterizing an act as just, someone makes an evaluative claim.
A person who invokes the term justice doesn’t describe conduct. Rather,
he/she evaluates it—and does so by considering it in light of a prem-
ise about how people ought to behave. The distinction at stake here
(between description and evaluation) is essential to the organization of
social life, for important as it is to describe behavior accurately, it’s also
critical to think carefully about what people ought to do.
An example will help illustrate the distinction between description
and evaluation. Imagine a scenario in which two friends, Alice and
Betty, decide to take a cross-country trip together. Imagine further that
they agree from the outset that they want to treat each other fairly as
traveling companions. In agreeing to this, they settle on an evaluative
framework as a guide to their collective life, one in which they agree
to rights and obligations that will facilitate their trip together. Among
other things, each agrees to pay half the purchase price of the car they’ll
drive. Because Alice is a good chef, she says she’ll cook meals on the
burner they’ll use when they camp out. In turn, Betty agrees to clean up
after meals. Alice says she’ll pitch their tent every evening; Betty agrees
to take it down and fold it each morning.
The agreement reached underscores the possibility of realizing jus-
tice (needless to say, a modest kind, but nonetheless an important one,
as anyone will attest who’s taken a long trip with someone else) in the
course of everyday life. Alice and Betty settle on a set of interlocking
obligations. Betty has a right to a cooked meal every day; she has this
right because Alice has assumed the obligation of serving as group chef.
Alice has a right to clean dishes, a right that exists by virtue of Betty’s
1 Thinking About Justice
5
agreement to maintain the silverware. Although the amount of work

required to discharge each obligation may not be exactly similar, it’s
roughly comparable, with the result that each person involved in the
arrangement can operate according to a mental ledger that tracks the
satisfaction of the mutual obligations that define their collective life.
This concern with score-keeping is inescapably important to any
analysis of justice. When thinking about the fair distribution of rights
and obligations, we focus not only on the rough comparability of dif-
ferent tasks, we also think in conditional terms—that is, we think
that if one person does what he/she is supposed to do, then the other
should fulfill his/her portion of the social arrangement. The concept of
reciprocity presupposes this kind of conditional calculation. In adopt-
ing it, someone doesn’t endorse the possibility of bestowing uncondi-
tional benefits on others. Instead, he/she thinks in terms of a pattern
of exchange, one in which if…then is monitored through reliance on a
mental ledger of what’s been given and received.
The Alice/Betty scenario is concerned with establishing a novel liv-
ing arrangement. Because this is its focus, it doesn’t deal with a key
feature of everyday conduct—the fact that we are born into already-
existing patterns of social interaction and so rarely have the opportunity
to design them from the ground up. Does this mean that the evalua-
tive framework already proposed—a framework that asks whether social
arrangements are just by trying to identify the terms free and equal indi-
viduals would accept for engaging in communal life—is irrelevant? It
certainly means that matters are far more complex once already-existing
social relations are taken into account. Once we have to think about
real-life conditions, we’re confronted with activities that almost certainly
wouldn’t be accepted as fair (racial discrimination, for example, gender
bias, acts of fraud and self-dealing, acts of theft and violence) but that
nonetheless persist in everyday life.
To note these features of the real world is not, however, to suggest
that the concept of justice should be set aside. On the contrary, the
components of everyday life just mentioned underscore the importance
of using justice as an evaluative concept to assesses critically the way we
live even when no formal agreement has been reached as to the terms
of communal life. After all, when we talk about racism or gender bias,
6
W. C. Heffernan
we’re concerned with behavior that violates rights. We rely on a con-

trast, in other words, between an evaluative standard (one that treats
it as wrong to practice racial or gender-based discrimination) and a
descriptive insight (one that notes the existence of such practices in the
course of daily life). And we rely on this contrast even to criticize the
law, for legal standards often fall below the requirements of justice, in
which case the concept of justice can, and should, be deployed to criti-
cize the law.
It’s possible, of course, to avoid evaluation altogether—possible, in
other words, to confine one’s attention to the world as it is and so to
disregard ought questions. To take this position, however, is to accept
silently the presence of injustice. The more promising strategy is to use
the concept of justice as a critical concept: to evaluate already-existing
relations and so to think about how these can be modified in light of
a framework that asks about the fair terms individuals would adopt for
living together.1
Two steps need to be taken once the concept of justice is used to eval-
uate already-existing social relations. The first is concerned with a prob-
lem of identification—with identifying rights-claims any reasonable
person would accept for conducting social life. The second is concerned
with a problem of implementation—with the steps that should be taken
to enforce these claims (by adopting standards for responding fairly to
violations of rights). The remainder of this chapter is devoted to ques-
tions of identification. The next is concerned with implementation.
Identifying Rights
It’s easy enough to assert that someone has a right to x. How can such
a claim be supported, though? How, in particular, can it be shown that
a statement about a right to x isn’t anything more than an expression
of opinion? Rights and obligations aren’t observable entities, after all.
They’re evaluative labels—labels of such importance that their applica-
tion gives rise to statements of condemnation (you violated a right, and
your rights-violation amounts to a wrongful act ) and even to punishment
(furthermore, your act of wrongdoing merits a condemnatory deprivation ),
7
but they’re labels nonetheless in that they don’t involve anything that
can be seen, felt, or heard.
Our question is thus: would a reasonable person agree that at least
some conclusions about rights are sound despite the fact that they defy
empirical observation? This question didn’t arise in the Alice/Betty sce-
nario: they agreed to the rights and obligations essential to their com-
munal life and so could point to that agreement as the source of their
communal obligations. In moving beyond that elementary scenario, we
should consider one in which it may seem clear that a person has vio-
lated a right even though the actor didn’t agree beforehand that his conduct
was wrongful.
The scenario we’ll consider works a modest variation on the famil-
iar story of the bully and the 97-pound weakling. Imagine that Carl,
a well-built man, and David, a frail one, have apartments whose front
doors open on the same hallway in a multi-unit building. Imagine fur-
ther that the building management has posted a sign saying Deposit all
garbage in the receptacles contained in your floor’s recycling room, first sep-
arating your trash in the ways indicated by the signs over each receptacle.
And imagine finally that David finds pretzel crumbs and other garbage
lying around the hallway, discovers that Carl has been failing to honor
management’s instructions by throwing away his garbage in the proper
manner, and is told by Carl when he points this out “You want make
something of it? If so, I’ll find a way to make a pretzel out of you.”
In reviewing this threat in his own mind, Carl might justify it on
the ground that he never actually agreed to separate his garbage into
recyclable lots. If pressed, he might further note that the legislature of
his state never adopted a law requiring people sharing living space to
follow the procedures established by his apartment building. And if
pressed even further, he might note that the strong typically dominate
the weak—and that, in any event, he never agreed to avoid threatening
other people’s physical safety. He might argue, in other words, that, at
most, there’s only a moral obligation to honor the building’s rules and
that, in any event, his behavior is consistent with centuries of practice
since the strong have always dominated the weak.
For purposes of discussion, we can assume that every point Carl
makes is descriptively sound—that is, we can assume that the building
8
W. C. Heffernan
management has a legal obligation to sort out garbage when placing

it on the street but that no resident of the building has such an obli-
gation within it and we can also assume that the strong have routinely
used the resources at their command (sometimes sheer physical force,
but sometimes networks of social relations, and sometimes accumulated
financial power) to make those without similar resources bend to their
will. Even if these points are descriptively sound, though, are they eval-
uatively defensible? And, if they are not, then why is this so—why, in
other words, can someone in David’s position properly complain that
he has a right (a just right, though not necessarily a legally enforceable
one2) not to be threatened with physical violence for someone’s failure
to perform a basic task of communal life?
It’s likely most people (other than the Carls of this world) would sup-
port David. We thus have a concrete example of a plausible claim of a
right to x—a claim, in this instance, to physical security free of threats
of unprovoked aggression by others. Demonstration that this claim is
sound is another matter, however, for an effort to establish the validity
of this point requires moving from the accurate descriptive point that
threats of violence are relatively common features of everyday life to the
evaluative claim that there is a right not to be threatened in a setting
such as Carl/David. Proof that people in Carl’s position are sometimes
punished for threatening violence is surely insufficient, for it’s clear the
Carls of this world sometimes get away with their threats—and, in any
event, our concern is not description but evaluation, so the evaluative
question must be whether someone in David’s position has a right not
to be threatened under circumstances such as those mentioned in the
scenario.
This question can be answered only by asking about the world as it
ought to be—in particular, by thinking about the fair terms of com-
munal life individuals would adopt as essential for living together.
In considering this, we step back from our actual characteristics (from
the specifics of our lives, from specifics such as our race, gender, height,
weight, and physical strength) and ask what free and equal individuals
unaware of these individualizing characteristics would adopt as condi-
tions for dealing with one another. We must reason from behind a veil
of ignorance, in other words, to use a term John Rawls has introduced
9
for thinking about justice.3 To put this point differently, ought questions
must be approached impartially. They must be approached without bias,
for we are not asking about terms that would benefit any specific person
but instead about the terms all individuals would demand in order to
be treated as free and equal contributors to communal life.4 This ques-
tion, it bears emphasizing, is not concerned with generosity. It asks how
people can get along with one another while still pursuing their own life
plans. It’s this last point that’s essential to understanding the concept of
justice. In thinking about generosity, we consider acts that exceed the
obligations of justice. In thinking about justice, on the other hand, we
ask about the terms every reasonable person would insist upon as a con-
dition for living with others.
When considered in this light, a reasonable person would say there
indeed is a right to be free of a threat of violence when such a threat is
used to secure an unearned benefit. This conclusion isn’t simply a mat-
ter of opinion. Claims that merely state an opinion can be infected by
personal bias, but the conclusion just reached is based on a conclusion
that would be reached by every reasonable person. We thus can identify
a right each person can claim against everyone against everyone else:
A Right to be Free of Physical Violence. Each person has a right to be
free not only of unprovoked violence but also of threats of violence designed
to override a person’s freedom to choose for him or herself.
Would the Carls of this world acknowledge the soundness of this
right? Perhaps not—that is, they perhaps wouldn’t accept it as sound
when thinking in terms of their specific circumstances. But this of
course isn’t the appropriate perspective for thinking about justice.
Rather, claims about rights and obligations must be identified without
regard to personal circumstances—from behind the veil of ignorance,
to use Rawls’s term. When analyzed from this perspective, someone
wouldn’t know whether he would be strong or weak, tall or short, male
or female, etc. By setting aside these individualizing characteristics,
someone thinks about terms that make communal life possible—terms
a reasonable person would accept if unaware of his own characteristics,
not terms someone has actually accepted (or rejected) given the circum-
stances of his own life.
10
W. C. Heffernan
Reasoning from this perspective, someone would say that there

is a reciprocity of restraint characteristic of the obligations of justice.
Someone would say, in other words, that a claim concerning a right
to be free of an unprovoked threat of physical violence is objectively
sound—sound even if another person (a Carl, for instance) would deny
the validity of such a right. This rights claim is not a matter of personal
opinion. Rather, it is objectively valid since reasonable people unaware
of their own specific circumstances would identify it as a term essential
to fair cooperation. Because it’s objectively sound, the right just iden-
tified isn’t subject to negotiation. Needless to say, people sometimes
bargain away their rights: a weak David might decide that it’s tactically
wise to forgo some of the benefits associated with his right to be free
of physical violence (and so allow a strong person like Carl to get away
with bullying so as to avoid being hurt). This doesn’t mean, though,
that deliberators unaware of their circumstances would agree that rights
are properly conceived as transactional devices subject to bargaining.
On the contrary, because rights are essential components of fair com-
munal life, any person’s inability to exercise his or her rights means that
fairness itself has been compromised. Rights aren’t fungible commodi-
ties, in other words. Rather, life with others is just only when they are
honored.
In generalizing on the points just made, we can identify numerous
other rights essential to a communal order composed of free and equal
individuals. Because criminal justice will be our central concern, we
need only consider two others, one having to do with fraud, the other
with equal treatment. The fraud right can be formulated as follows:
A Right not to be Defrauded. Each person has a right to be free of
fraudulent misrepresentations by others.
A justification for this right also depends on veil-of-ignorance reason-
ing: No one would agree to be the victim of fraudulent misrepresenta-
tion, so no one can legitimately engage in this. Clever people routinely
resort to fraud, but this descriptive fact doesn’t establish that the clever,
when stripped of their individualizing characteristics and so uncertain
whether they would be fraudsters or the victims of fraud, would say that
they’re entitled to engage in acts of deception.
11
Veil-of-ignorance reasoning is also essential to justifying rights con-

cerning equal treatment. It’s of course descriptively accurate to say that
burdens and benefits are sometimes distributed in a way that favors
members of one group (members of a racial group, for instance) even
when there is no substantial difference between the people receiving
them. This doesn’t mean, though, that the distributions are defensible.
On the contrary, when stripping themselves of their specific character-
istics, individuals who gain from the unequal distribution of benefits
would endorse a right to equal treatment:
A Right to Equal Treatment. Each person is entitled to have burdens
and benefits distributed without regard to factors unrelated to the factors
pertinent to the distribution.
A Question of Motivation
The three rights noted above are components of a comprehensive frame-
work of fair communal life. If this were a book devoted solely to jus-
tice, we might expand the list and so try to identify the entire range
of constraints essential to the fair organization of social relations. For
our purposes, though, the three rights identified above are sufficient
to introduce the further questions that need to be asked about the fair
response to malicious acts that violate rights.
Those questions are best posed by returning to the Carl/David sce-
nario. Imagine that Carl responds to the veil-of-ignorance argument
outlined above by saying I don’t care about fairness. I realize reasonable
people might reach conclusions about rights and obligations bearing on
unprovoked physical aggression when deliberating from behind the veil of
ignorance. I realize I might even reach conclusions that would call on me to
exercise restraint when dealing with someone like David. But none of this
matters to me. I’m out for myself, not for other people. Obligations are for
suckers!
Statements like this are concerned with motivation, not with the con-
cept of justice itself. They don’t deny the soundness of veil-of-ignorance
reasoning. Rather, they treat such reasoning as irrelevant to the conduct
of life. In their simplest form, such statements rely on naked egoism:
12
W. C. Heffernan
they assert the priority of the person uttering them over others (and
thus discount the possibility of cooperation while welcoming the oppor-
tunity to exploit, degrade, cheat, or brutalize people). Because few speak
so baldly about the possibility of getting their way, motivational deficits
are actually more common in subtler forms. That is, people often con-
cede the soundness of claims about obligations to others in most set-
tings but nonetheless grant themselves exemptions on some occasions.
On occasions such as these, people don’t entirely reject the legitimacy of
considerations that focus on the fair terms of communal life. They sim-
ply carve out exceptions for themselves, thereby giving way to a moti-
vational deficit concerning their obligations of justice while (typically)
insisting that others must honor these same obligations.
Motivational deficits can’t be addressed in the same way that
questions about the identity of obligations can be addressed. Veil-
of-ignorance reasoning is essential when trying to specify the obliga-
tions essential to communal life. It remains relevant to questions about
the appropriate response to malicious acts attributable to motivational
deficits, but more is needed as well, for the appropriate response here
will also require consideration of the exercise of authority when impos-
ing punishment for violations of communal obligations. These two
perspectives—obligations-identification and obligations-enforcement—
are of course closely connected, for it’s necessary to identify first the
obligations each person owes others before thinking about punitive
measures that respond to motivational deficits. Remarks so far have
focused on justice itself. We turn next to criminal justice—i.e., to con-
demnation and punishment of those who have violated their obligations
to others.
Notes
1. These remarks rely on the distinction between positive and critical
morality H.L.A. Hart develops in Law, Liberty, and Morality 17–18
(1969).
2. As should be clear, the question posed here has to do with moral, not
legal, rights. In posing it, I rely on Joel Feinberg’s argument that “moral
13
rights are not some esoteric construction of otherworldly philosophers,

but common parts of the conceptual apparatus of most if not all of us
when we make moral and political judgments.” See Feinberg, “Moral
Rights: Their Bare Existence,” in Freedom and Fulfillment: Philosophical
Essays 199–200 (1994).
3. The argument here follows John Rawls’s description of moral reasoning,
and in particular his conception of the veil of ignorance. See John Rawls,
A Theory of Justice 136–42 (1971).
4. Although they differ on many questions bearing on justice, Rawls and
Gerald Gaus converge on the argument advanced here: that any evalua-
tive proposition concerning the conduct of communal life must be uni-
versalizable. For Rawls, see id. 17–22; for Gaus, see The Order of Public
Reason: A Theory of Freedom and Morality in a Diverse and Bounded World
299–301 (2011).
2
Thinking About Criminal Justice
The discussion so far has touched only indirectly on questions about

power. The reason for this is straightforward: to the extent people honor
their obligations to one another, power is merely a background con-
sideration. It has to be exercised to coordinate behavior in public life
(to make sure drivers stay on the right side of the road, for example).
On the other hand, if people are willing to live in accordance with the
fair terms of cooperation, the exercise of power to enforce those terms is
unnecessary.
But of course, power is inescapably important here as well. This is
because grievances about injuries are socially corrosive—and because
the exercise of power is needed to contain this corrosion. The chain
effect of felt grievance is a familiar one. It begins with the pain of being
injured. In feeling resentment toward the person who inflicted injury,
an injured party may want to strike back at the injurer. That person may
also decide to strike back. The party initially injured may strike back
again, thus establishing a cycle of retaliation with no clear end point of
resolution.
This cycle is particularly troubling given the question it raises about
justice—i.e., whether an initially injured party acts unjustly in striking

https://doi.org/10.1007/978-3-030-12782-4_2
16
W. C. Heffernan
back at his/her injurer. The answer is not necessarily. A claim that the
other guy started it relies on a premise about justice, after all—a premise
that someone should be held responsible for violating the terms of com-
munal peace. Because it has this character, the injured party can make a
minimally plausible case as to payback. Tit-for-tat has it negative as well
as its positive side, someone might reasonably point out, so it’s a mis-
take to say that striking back at an aggressor is always wrong.
But self-help tit-for-tat has a deeply destructive potential, and it’s
because this is so that the socially corrosive costs of retaliatory payback
are so steep. The person initially injured may exaggerate the amount of
harm suffered. Alternatively, he/she may distort the circumstances in
which the injury occurred. And, in any event, retaliatory payback can
inaugurate the kind of socially corrosive cycle just described. Each of
these factors is relevant to the claim that communal power—or, to be
more precise, communal power that relies on a third-party perspec-
tive untainted by the original injury—is essential to the resolution of
grievances.
Must this power be exercised by the state? Must it be a component of
criminal justice? The answer to each question is no. Impartiality is essen-
tial to the just resolution of grievances. It’s not essential to justice for
state officials to resolve claims about wrongdoing, however. Indeed, only
a moment’s thought is needed to establish that grievance-resolution is
a routine feature of communal life outside the domain of state power.
Parents resolve grievances among siblings. Umpires resolve baseball dis-
putes. School authorities preside over student fights. Each of these is an
example of grievance-redress undertaken without reliance on the state.
Justice matters in each instance—that is, children, baseball players,
and students assess the fairness of the punishments imposed on them
through reliance on the concept of justice. They aren’t concerned with
criminal justice, however; they’re instead concerned with justice effectu-
ated by non-state agents.
So what’s unique about criminal justice? In some respects, not much,
for state officials address grievances by following procedures that have
much in common with those employed by a fair parent, baseball
umpire, or school principal. In other respects, however, criminal justice
stands apart, for criminal justice involves state-imposed punishment for
2 Thinking About Criminal Justice
17
rules applicable to all persons within a given jurisdiction. Criminal jus-

tice has a general scope, in other words: it’s concerned with complaints
that can be brought by any member of community for violations of that
community’s legal code. Moreover, criminal justice involves sanctions
(in particular, imprisonment) no other authority may impose. Given
these characteristics, criminal justice performs a special role in societies.
It alone can ensure fairness to any complainant about malicious incur-
sions on his/her rights, and it alone can do so in a way that prevents a
cycle of violence from metastasizing throughout an entire society.
This chapter examines the principles of fairness essential to criminal
justice. It begins with the obvious—with the indispensability of a
grievance-resolution process for those complaining about the inju-
ries they have suffered. In its most elementary form, grievance-redress
takes a tit-for-tat form: eye for eye, tooth for tooth, life for life, to use
terms found in the Bible. It’s worthwhile to start here because crimi-
nal justice is indeed concerned with negative reciprocity—concerned, in
other words, with the imposition of pain-for-pain already inflicted. Fair
grievance-redress cannot, however, follow the eye for eye model, so
in examining it we will have an opportunity to see why this model is
defective and to see why justice requires more than a crude form of
retaliation for injury. The chapter’s later sections build on this point. In
particular, they examine the principles essential to fair punishment and
the state’s role in imposing punishment for malicious violations of rights
essential to the creation of enduring community.
The Lex Talionis Framework of Negative

Reciprocity
Blood for blood, limb for limb—this is surely one of the most basic
forms of grievance-redress imaginable. An injury having occurred, the
injured party retaliates in kind. In the Hebrew Bible, Moses announces
a set of rules for redressing grievances, rules that place an upper limit
on the amount of harm an injured party can inflict, but that author-
ize someone aggrieved by an injury to take action in satisfaction for the
18
W. C. Heffernan
harm done. In Exodus, the second book of the Hebrew Bible, Moses is
reported to have said: “[Y]ou shall give life for life, eye for eye, tooth for
tooth, hand for hand, foot for foot, burn for burn, wound for wound,
stripe for stripe.”1 In Leviticus, the book that follows Exodus, Moses is
reported to have announced:
Anyone who kills a human being shall be put to death…. Anyone who
maims another shall suffer the same injury in return: fracture for frac-
ture, eye for eye, tooth for tooth; the injury inflicted is the injury to be
suffered.2
Modern research has established that these commands, which have

become known as lex talionis (or the law of the talion), were contained
in only slightly different form in the Code of Hammurabi3—and
so were announced prior to composition of the Hebrew Bible. They
became a part of Western culture by virtue of their inclusion in the
Bible, however, so we shall consider them in their Biblical form and not
in light of their previous sightings in the ancient world.
As a law governing communal life, lex talionis is unmistakably con-
cerned with resolving grievances in a specific way. It’s grounded in a
principle of negative reciprocity since its aim is to ensure exact equiva-
lence between the harm inflicted by an offender and a victim’s response
to that harm.4 Reflections on reciprocity typically center on the
exchange of benefits: You scratch my back and I’ll scratch yours. There’s
no reason in principle, however, why they can’t center on the exchange
of pain: You wound me and I’ll inflict an equivalent wound on you (even if
you don’t want me to). Indeed, there’s no reason why negative reciprocity
shouldn’t be considered in terms of precise equivalence.5 This appears
to be the significance of the passages in both Exodus and Leviticus.
The insistence on responding to an injury with exactly the same kind
of injury (eye for eye, tooth for tooth, etc.) presupposes maintenance of
a mental ledger for giving and getting pain, one in which the phrase
the same injury in return sets an upper limit on revenge (an eye for an
eye, but not two eyes for one) while authorizing the party aggrieved by
an injury to seek equivalence for harm suffered. Payback thus consists
of getting exactly even, with even understood in terms of the mental
19
ledger victims maintain when thinking about what they’ve suffered at

the hands of others.
Because criminal justice is also built on a model of pain-for-pain,
it might be argued that there is only a short route from this Biblical
code to the modern system of state-sponsored punishment. On care-
ful reflection, though, it can be seen that there are substantial differ-
ences between the two—indeed, once the issue is examined carefully,
it can be seen that lex talionis sometimes fails to ensure justice in the
grievance-resolution process. Two examples help illustrate this point.
Imagine that A launches a surprise attack on B ’s person and that B
repels it by wounding A. The wound can be classified as an injury, so A
might invoke lex talionis to justify an equivalent injury (an equally seri-
ous wound) on B. But this kind of equivalence is deeply problematic. A
initiated the cycle of violence. His conduct was blameworthy, B ’s was
not, so C, an impartial observer committed to upholding the fair terms
of communal life, would not grant that A may properly retaliate for the
injury he suffered.
Lex talionis also merits rejection, though for a different reason.
Imagine that D positions himself so that he can kill E with his sharp-
shooter rifle, but imagine further that D shoots at E and misses. Because
no injury occurs, lex talionis precludes retaliation by E (or, at most, per-
mits E to shoot as long as his shot misses). Both remedies are absurd, of
course. D acted culpably; E didn’t—so it’s D who can be reproached for
his conduct, an impartial observer would say. One might of course pro-
pose a supplement to lex talionis, one that calls for a negative response
to unsuccessful attempts to injure someone else. To take this position,
however, is to concede by implication culpability’s importance in deter-
mining the justifiability of grievance-redress efforts.
This critique of lex talionis can be formulated in a more general way.
In reasoning from behind the veil of ignorance, a deliberator (still com-
mitted to identifying the fair terms of communal life) would consider
the possibility of being the object of someone else’s unprovoked aggres-
sion. Injuries can be inflicted non-culpably (as when an innocent party
successfully wards off an aggressor’s attack), the deliberator would real-
ize. Furthermore, culpable activity doesn’t have to result in an injury at
all (as when an attempt to injure someone is unsuccessful). Given these
20
W. C. Heffernan
possibilities, an impartial observer would conclude that the brute fact

of injury shouldn’t serve as the prerequisite for redressing the grievance
prompted by the injury. Rather, culpability is critical to the redress of
grievances. What matters isn’t injury but instead the blameworthiness of
the person against whom a complaint is brought.6
The Possibility of Dispensing Entirely

with Negative Reciprocity
The points just made establish that lex talionis offers too crude an
approach to grievance-redress. The remaining portions of the chapter
defend criminal justice’s more refined approach to this. Before turn-
ing to an argument in support of this position, however, it would be
helpful to examine two proposals that dispense entirely with grievance-
redress. The proposals are radically different. They converge on one
point, though—on the desirability of dispensing entirely with negative
reciprocity. The proposals matter, in other words, because they make
it possible to consider the soundness of the claim, essential to crimi-
nal justice, that it’s fair and just to entertain a victim’s complaint about
wrongdoing and to consider the possibility of imposing punishment if
the complaint turns out to be accurate.
Turn-the-Other-Cheek. The first alternative worth considering calls
for a non-response to injury. Lex talionis assumes tit-for-tat. Turn-the-
other-cheek rejects this. As in lex talionis, turn-the-other-cheek assumes
an unpleasant event, but it calls on the recipient of the unpleasantness
to rein in the retaliatory emotion triggered by the event. Aggression
should not beget further aggression, an advocate of this position would
say. Step outside negative tit-for-tat altogether: do nothing—and so
make sure a cycle of violence doesn’t begin.
In endorsing turn-the-other-cheek, someone might argue against
punishment of any kind—and, in doing so, would challenge the very
legitimacy of negative reciprocity (while still welcoming the possibil-
ity of a positive cycle of reciprocity in which someone returns a ben-
efit roughly comparable to a benefit received). Rather than consider
21
this option in the abstract, we can instead examine a specific argument

on its behalf, one that is rarely noted in discussions of criminal justice
despite its direct bearing on lex talionis. The author of the Gospel accord-
ing to Matthew reports that Jesus offered the following critique of lex
talionis in the Sermon on the Mount. “You have heard it was said, ‘An
eye for an eye, a tooth for a tooth,’” Jesus is reported to have remarked.
But I say to you, Do not resist an evildoer. But if someone strikes you on
the right cheek, turn the other also; and if someone wants to sue you and
take your coat, give your other cloak as well, and if anyone forces you to
go one mile, go also the second mile. Give to everyone who begs from
you, and do not refuse anyone who wants to borrow from you.7
If one thinks in terms of rights of personal security, one might say

that Jesus urges his listeners not to insist on them even in the face of
wrongdoing—not to protest an act of aggression (being struck on
the cheek, for instance), and not to protest a theft (having one’s coat
taken), but instead to aid the people who engage in these acts. Christ’s
remarks don’t reject the abstract claim that people can properly claim
rights of personal security. His remarks do, however, urge people not
to stand on their rights. His comments thus urge people to discard the
mental ledger typically employed to keep track of rights and wrongs.
In suggesting this, Jesus also implies that self-respect does not depend
on standing up for yourself. They imply instead that self-respect comes
from responding with charity even to acts of aggression.
Once this point is borne in mind, it can readily be seen that Christ’s
remarks allow for the possibility of a downward spiral of predatory
behavior. As we’ve seen, lex talionis opens the door to a cycle of retali-
atory vengeance. Turn-the-other-cheek holds out a different possibility:
not a cycle of violence but rather a pattern of unending victimization.
When a victim declines to stand on his/her rights of personal security,
that person acquiesces in aggression—and while the victim may display
an admirable forbearance in doing so, he/she also undermines the con-
ditions of enduring community. This is because lasting social bonds are
forged in reliance on the if…then dynamic outlined in the first chapter:
if I can count on you to act in a certain way, then I will reciprocate with
22
W. C. Heffernan
something roughly comparable. Because it fails to insist on this condi-

tion for interaction, turn-the-other-cheek makes enduring social rela-
tionships unlikely.
Given these points, it becomes possible to understand why the cri-
tique of lex talionis contained in the Sermon on the Mount has not
figured prominently in discussions of the just response to injuries.
The reason is straightforward, for it should be clear that Christ’s com-
ments are not concerned with the reciprocity essential to justice. Rather,
they’re concerned with saintly forbearance in the face of wrongdoing.
They promise the kingdom of heaven to those who suppress the instinct
to retaliate.8 But this promise comes with a qualification, for the king-
dom of heaven becomes possible only at the expense of an enduring
community on earth. Such a community can be sustained only by prac-
tices that rely on a cycle of positive and negative reciprocity—can be
sustained, other words, only when someone suffering from a motiva-
tional deficit concerning the fair terms of cooperation knows there is a
reasonable prospect of a setback if he/she fails to honor those terms.
Would someone deliberating from behind the veil of ignorance be
convinced by turn-the-other-cheek? Perhaps. That is, if the goal is to
encourage saintliness, the deliberator would treat turn-the-other-cheek
as the correct guide for conduct: the deliberator would say, in other
words, that the mental ledger that guides everyday relations should be
set aside in favor of kindness under all circumstances. But if the goal is
to identify the preconditions for honoring the fair terms of communal
life, turn-the-other-cheek is distinctly unpromising while the practice
of positive reciprocity supplemented by reliance on negative reciprocity
in cases of wrongdoing is particularly promising. Indeed, it stands out
as the most desirable possible means of achieving long-term communal
stability when enforced by an impartial arbitrator, for this promotes the
possibility of unbiased fact-finding about the actual circumstances of
an injury. Turn-the-other cheek is likely to undermine the prospects of
long-term stability, in other words, since it bypasses altogether the wary
self-interestedness that’s essential to reciprocal respect for rights.
Preventing Dangerous Behavior Before It Occurs. What about
another alternative, then, one that also rejects the pain-for-pain
dynamic of negative reciprocity but that does so by offering a way to
23
prevent harmful acts before they occur? In taking this approach, some-
one might contend that punishment comes too late. Policymakers
should focus on dangerousness—on preventing harmful behavior
before-the-fact, not on punishment after-the-fact, it could be con-
tended. If they identify features of the physical environment that make
communal life more dangerous (dimly lit public spaces, for instance)
or people likely to commit offenses (teenagers with a record of run-ins
with the police, for example), they can undertake preventive measures
that will make it unnecessary to address harmful acts after they occur.
Clearly, there is something to be said for this approach. It seems par-
ticularly promising as far as the arrangement of public space is con-
cerned, for if plazas, streets, bus terminals, train stations, etc., are laid
out in ways that discourage predatory behavior, preventive measures
such as these will protect personal security rights in the absence of pun-
ishment.9 But however promising these preventive measures are when
considered in conjunction with public spaces, they’re troubling, indeed
wholly unacceptable, when applied to people. There are two reasons—
complementary reasons, it turns out—why this is so. Each merits inves-
tigation on its own, though it will become clear as discussion progresses
why the two reasons are closely related.
Think first about the importance of individual liberty. One of the
premises critical to criminal justice is that rights of personal freedom
can properly be taken away on suspicion of wrongdoing. The preven-
tion approach discards this premise. It holds that individual freedom
can be denied even when someone has not engaged in a harmful act if
it appears likely that person will be dangerous to others in the future.
On this analysis, one would have to speak of preventive restraint rather
than punishment. This is because punishment is in order for culpable
conduct that has already occurred whereas preventive restraint can be
imposed on the basis of a prediction of future conduct. Indeed, preven-
tive restraint isn’t necessarily imposed to condemn wrongdoing. Rather,
it’s used to avert harm.10
The prevention framework thus relies on a stark trade-off when
applied to human beings, one in which social control is achieved at
the expense of false positives (i.e., inaccurate predictions of what some-
one will do). A deliberator reasoning from behind the veil of ignorance
24
W. C. Heffernan
might conclude that this trade-off is never acceptable. Predictions of

future dangerousness are too speculative (and thus too uncertain) ever
to serve as a justification for denying an adult the right to make deci-
sions for himself, the deliberator might conclude. An after-the-fact
framework—one that takes away freedom for culpable acts in the way
that criminal justice does—is compatible with the general principles of
justice, it could be said, for such a framework holds people responsible
for their blameworthy acts, but a framework that denies freedom on the
basis of something that has yet to happen is simply unacceptable as a
matter of fundamental fairness.
But what if it could be shown that there is a strong likelihood that
someone will endanger others in the near future? This question takes
us to the second, and related, problem with a prevention of framework.
On the rare occasions when a prediction of dangerousness can be sup-
ported by strong evidence of empirical validity, there may be sound
reasons to restrain freedom—and so to prefer social control to a core
commitment to personal freedom. But highly accurate predictions of
future dangerousness are very uncommon. Even when the level of pre-
dictive accuracy is lowered to, say, 50%, success is rare.11 Because this is
so, the advocate of a preventive framework is faced with an unwelcome
dilemma: accept a high proportion of error by denying freedom to peo-
ple who meet the profile for dangerousness but who nonetheless will
not commit injurious acts or settle for less control (and greater fairness)
by adopting the framework of criminal justice by denying freedom only
after someone has engaged in culpable behavior.
A deliberator from behind the veil of ignorance would have no dif-
ficulty with this. Given the possibility of substantial error in predict-
ing dangerousness, the deliberator would of course prefer an after- to
a before-the-fact framework, for the after framework affirms the value
of personal freedom in a way that the before does not. This approach
makes allowance for the rare case in which a prediction appears highly
likely to be accurate (cases in which preventive detention may be
employed to restrain someone in the absence of evidence of culpable
conduct). It affirms the twin values of personal freedom and punish-
ment for blameworthy acts, thereby affirming the overall framework of
criminal justice.12
25
Negative Reciprocity Once Again: Impartial

Imposition of Punishment for Malicious
Violations of the Fair Terms of Cooperation
The argument so far has set the stage for thinking about punishment
as a just response to acts of wrongdoing. It has done so by criticizing
other approaches to grievance-redress, not by advancing a positive thesis
concerning punishment. As a negative matter, it has criticized lex tal-
ionis, for this can unleash a cycle of retaliatory violence. Second, it has
criticized turn-the-other-cheek, for this produces a downward spiral of
predation. And third, it has criticized an exclusive commitment to pre-
vention-before-the-fact, for this unnecessarily sacrifices individual free-
dom to social control. We turn now to a positive argument, one that
identifies the principles appropriate for imposing punishment and that
applies these principles to criminal justice.
This section focuses on the general features of fair punishment. The
section’s points are pertinent to criminal justice. However, its arguments
are relevant to any person who punishes—to parents, baseball umpires,
and school principals, for instance (to use the examples mentioned at
the beginning of the chapter). Because punishment is a common feature
of all kinds of collective life, it’s essential to begin by thinking about
the features of just punishment whether this is imposed by a state- or a
non-state agent.
We should start by defining punishment itself.
Punishment. Punishment consists of a condemnatory deprivation.
This is a two-part definition. In adopting it, someone focuses not
merely on denial of some kind of good but also on the condemnation
that accompanies this act of denial. After all, punishment isn’t simply
characterized by loss of something; it consists of a reproach as well. Lex
talionis doesn’t necessarily involve a reproach. It hinges on payback—
on exact payback for harm received (on negative reciprocity, in other
words, without any consideration of the wrongfulness of any harm
inflicted). This is surely unsatisfactory from the standpoint of justice.
A fair framework of grievance-redress doesn’t simply aim at evening the
score. It aims at this only if wrongdoing occurred.
26
W. C. Heffernan
A closely related feature of fair punishment has to do with the impar-

tiality of the person who imposes a condemnatory deprivation.
Impartiality. A condemnatory deprivation should be imposed by some-
one who is neutral as between the complainant and the alleged offender.
This requirement is absent from lex talionis. The commands in Exodus
and Leviticus presuppose the exercise of communal power in limiting
complainants to equivalent payback (one eye when only one has been
taken, for instance), but they make no effort to rein in bias in deter-
mining whether payback is in order in the first place.13 In contrast,
the impartiality of judgment requirement insists on arbiter neutrality.
In other words, it presupposes a three-, rather than a two-, way rela-
tionship—not only A and B but also C, the party with the power to
resolve grievances about the A and B encounter. In noting this point,
one doesn’t offer an explanation as to how power to resolve grievances
is acquired. Rather, one notes only that the fair resolution of grievances
hinges on the exercise of impartial judgment14—and thus that power
must be vested in an impartial party to insure punishment’s legitimacy.
Even when punishment is legitimate, it’s still unwelcome, for pun-
ishment isn’t merely condemnatory, it’s also an exercise in depriva-
tion. Condemnation and deprivation are justified only when imposed
for wrongdoing, so an eligibility principle limits punishment to
wrongdoing:
Eligibility for Punishment. It is impermissible to impose punishment
except for acts that maliciously interfere with the security rights of others.
This principle links rights and wrongs. Condemnatory deprivations,
it holds, are acceptable only when imposed for acts that maliciously vio-
late the security rights of others. Deprivations unaccompanied by con-
demnation may be appropriate for faulty, non-malicious, interference
with others’ rights; in particular, they’re appropriate as compensation in
settings involving carelessness (compensation without condemnation is
appropriate for a fender bender, for instance). In contrast, condemnatory
deprivations are warranted in a much more limited range of settings—
in settings where someone has recklessly or intentionally violated the
personal security rights of another person.
As we’ve seen, lex talionis doesn’t make allowance for this distinction.
It focuses on injuries, not wrongdoing, and because wrongdoing admits
27
of degrees (intentional harm is more wrongful than reckless harm, for

instance) the framework of impartial administration of punishment
allows for variable severity of punishment even when the injury inflicted
is the same. Dead is dead; a wound is a wound—but once wrongdoing
is taken as a guiding consideration in the grievance-response process,
it becomes essential to consider how an injury was brought about, not
merely that an injury occurred.
In drawing on these comments, one can see why punishment of an
offender is justified over and above compensation for the harm the
offender has inflicted. Damages are reparative: their aim is to undo a
wrong. They provide a way to restore the victim of a harmful act to
the position he/she would have occupied but for the wrong suffered.
Punishment has a different function. It addresses a victim’s dignity, not
his/her material condition. It does so by affirming the victim’s status as
someone whose worth was violated by a malicious act. Without punish-
ment, grievance-redress can’t vindicate the victim’s respect-worthiness.
Needless to say, an offender’s provision of compensatory damages offers
a way to show respect. Compensation is primarily concerned with mak-
ing a victim whole, however, not with affirming a victim’s dignity. It’s
only by imposing punishment that one can affirm a victim’s status as
someone who should not have been the object of a malicious act.15
This point can be expressed differently by saying that it relies on a
retributive justification for punishment. Unlike ambitious versions of
retributivism, the argument just advanced doesn’t hold that there is an
exact amount of punishment due for different malicious acts. The argu-
ment does hold, though, that the provision of compensatory damages
to a victim responds insufficiently to malice, for punishment is essen-
tial to affirm the dignity that’s undermined by an offender’s exercise of a
vicious will.
The points just made say nothing about whether punishment must be
imposed for a given act of wrongdoing. Rather, they impose a constraint
on an impartial arbiter considering the possibility of punishing others.
That constraint is best understood in terms of a key feature of punish-
ment: its usefulness in promoting social order. It’s undeniable that pun-
ishment is exceedingly important in this regard—undeniable, in other
words, that condemnatory deprivations promote adherence to fair rules
28
W. C. Heffernan
for conducting communal life, for punishment is something people

want to avoid and the threat of it has a deterrent effect. To note this is
not to say, though, that punishment may be imposed merely because
it promotes social control. After all, it’s sometimes socially useful to
punish people in the absence of wrongdoing. A corollary to the eligibility
principle is needed, then, one that allows for deterrence but that limits
its deployment.
Deterrence as a Subordinate Justification for Punishment. The
imposition of punishment often produces general and specific deterrence, but
deterrence is a legitimate consideration in this context only when punish-
ment is imposed for wrongdoing.
This corollary to the eligibility principle is so important that we
should pause to consider its significance. In speaking of deterrence, we
consider a communicated threat of unpleasant consequences if someone
engages in a prohibited act. Given this definition, justly imposed pun-
ishment can have a deterrent effect, for when A is punished B, C, D,
etc., come to understand that they may also be punished if they engage
in a similar act (general deterrence) and A also comes to understand that
he/she may further be punished on repeating the act (specific deter-
rence). It’s in this way that the threat of punishment for wrongful acts
promotes social order, for in reminding people that they’re eligible for
condemnatory deprivations when they violate the terms of fair commu-
nal life, someone promotes the likelihood of adherence to those terms.
On this analysis, negative reciprocity has the potential to complement
positive reciprocity: each sustains the fair terms of cooperation.
A key qualification is needed, however, when thinking about deter-
rence. This is because threats of punishment can be used to discourage
acts that are not wrongful. Punishment can promote social control at
the expense of justice, in other words. Scapegoating, the factually inno-
cent serves as a straightforward example of this. It’s possible to deter E,
F, G, etc., for instance, by framing Z for an offense he/she didn’t com-
mit—and so to encourage E, F, G, etc., to obey the law. Whenever this
happens, the eligibility principle of punishment is dishonored.16 It’s in
this way that social control can be achieved by trampling on the require-
ments of justice—and whenever this possibility looms, justice must be
accorded higher priority. It’s of course the aim of justice to promote
29
stable fair cooperative activity. But because deterrence can be pursued

at the expense of justice, it’s essential to treat deterrence as a subordinate
justification for punishment.
Criminal Justice
What distinguishes criminal justice, then? The short answer to this is
that criminal justice is a system of state-imposed punishment. A longer
answer requires consideration of the characteristics of the state. When
speaking of the state, we refer to a permanent enforcement agency that
exercises exclusive power to impose punishment for violation of pro-
hibitions issued in its name. As is obvious, this definition says noth-
ing about either justice or criminal justice. A permanent enforcement
agency can adopt unjust rules (think, for example, about the laws that
enforced slavery in pre-Civil War America). Furthermore, this kind of
agency can enforce just rules unjustly (think, for example, about murder
convictions in which prosecutors fail to provide evidence of a defend-
ant’s innocence).
Why, then, grant such power to a permanent agency? The answer
to this is that deliberators reasoning from behind the veil of ignorance
would realize that the alternative to exclusive state power is worse. It’s
easy enough to imagine this alternative. Every person living under con-
ditions of decentralized power, we can imagine, would agree to the prin-
ciples of justice. In particular, they would agree on the security rights
mentioned in Chapter 1. They would also agree on the principles of
punishment—they would agree, in other words, that punishment may
be imposed for acts that maliciously violate security rights and that it
must be imposed impartially. They would not, however, agree to the
existence of an institution exclusively vested with the power to impose
punishment for violations of security rights. Instead, they would settle
on a system that calls for ad hoc arrangements of grievance-redress. That
is, whenever a grievance is expressed, parties would work out ways to
entertain and resolve it.
This would surely prove unsatisfactory in the long run. After all,
those accused of wrongdoing would be reluctant—to put it mildly—to
30
W. C. Heffernan
concede to others the authority to punish them, for punishment is

always unwelcome, even when justified. These two considerations (the
disinclination of wrongdoers to accept punishment plus the proposition
that punishment of wrongdoing is nonetheless justified) make it essen-
tial to establish a permanent institution—the state—that adopts prohi-
bitions essential to the just conduct of communal life and that’s vested
with exclusive power to enforce those rules by punishing wrongdoing
(thus eliminating the retaliatory revenge option associated with lex tal-
ionis ). Such an institution must be strong enough that no one can evade
its exercise of power. An ad hoc framework is unacceptable because it
can be evaded.17
This point about the inescapable need for coercive power must be
complemented, though, by consideration of the threat to justice posed
by the existence of an entrenched state. Unfortunately, history provides
numerous examples of state officials’ indifference to the requirements
of justice in resolving grievances. Indeed, the state can be captured by
some of its members and so used to inflict injustice on other mem-
bers (think, for example, about Jim Crow laws in the American south).
Moreover, even when no one group dominates the organs of govern-
ment, individuals charged with enforcing the law can do so in a biased
way (think, for example, about racially abusive practices by police
officers and corrections officials). A momentously important trade-
off is at stake, then, one that grants coercive authority to a centralized
enforcement agency despite the risk that this authority will sometimes
be abused by that agency’s officials.
This trade-off is best considered in terms of a proposition about the
state’s utility:
A Permanent Enforcement Agency. On balance, it’s socially useful
to vest a permanent enforcement agency with the coercive power to punish
wrongdoing that affects communal order.
We can best appreciate the significance of this proposition by not-
ing how it differs from others discussed in the first and second chap-
ters. Earlier propositions have been stated in exceptionless terms.
They have relied on principles (honor the fair terms of communal life,
enforce those terms impartially, limit punishments to acts that violate
those terms) that are always valid and that therefore don’t have to be
31
justified on an on balance basis. In contrast, any justification of state

power requires consideration of pluses and minuses. In particular, it has
to serve as the foundation for an institutional framework that grants the
state power of the kind just described but that also establishes counter-
vailing mechanisms that monitor state officials’ exercise of power. Four
propositions make it possible to understand the role of the state in a just
system of grievance-resolution. The first is concerned generally with the
state’s role in vindicating the security interests of members of the public.
The State’s Surrogacy Role. In exercising coercive power to enforce the
fair terms of cooperation, the state should act as a surrogate for its citizens,
adopting only those laws that impose punishment for malicious interfer-
ence with the security rights of others within its territorial boundaries and
enforcing these laws impartially.
Unlike the previous proposition about an enforcement agency, this
one is formulated in exceptionless terms. It calls on the state to play a
unique role in the administration of grievances. Civil law adminis-
ters grievances by pitting a party complaining about a violation of the
law against one who denies such a violation. Criminal justice operates
differently. It vests in state officials (prosecutors) the power to initiate
complaints about malicious acts, and it further vests in other state offi-
cials (jurors, who function as temporary state agents for purposes of a
trial) the power to determine the accuracy of claims while vesting in still
other officials (judges) the power to settle on punishment. The surro-
gacy principle covers each exercise of power. It denies citizens a payback
option. They can’t strike back against offenders (except when confronted
with an imminent threat to their lives for which no state agent can serve
as a protector). They can’t even decide on their own whether they’ve suf-
fered a wrong that merits punishment (again, subject to the self-defense
qualification just noted). In treating the state as a surrogate, one thus
says that, apart from self-defense issues, it alone possesses legitimate
punitive power to vindicate citizens’ rights against malicious infringe-
ment of its prohibitions.
It’s arguable that this degree of concentrated power is dangerous in
itself. The alternatives seem worse, however. Even a slight modifica-
tion of the concentration of power—letting complainants bring their
own criminal actions, for instance—is open to serious objection, for if
32
W. C. Heffernan
complainants were able to do so, they could harass people with frivolous
claims and so use the criminal process as a tool to retaliate against those
they dislike. The surrogacy theory of criminal justice is sound, then.
In particular, it explains why it’s wise to concentrate power in a single
enforcement agency, and it does so by emphasizing the importance of
impartiality by all officials of the state.
But because it can’t reasonably be expected that state officials will
always honor their duties impartially, it’s essential to rely on a coun-
tervailing mechanism—a constitution—that aims at ensuring officials’
fidelity to their surrogacy role.
A Constitutional Commitment to Justice. A body of rules should be
adopted that commit the state (and its officials) to faithful commitment of
the principles of justice.
Needless to say, a constitutional commitment to justice won’t ensure
that state officials will act impartially. But the norms stated in a consti-
tution will encourage this—and thus are not to be scorned, for a body of
constitutional norms will go far toward enforcing punishment within
limits announced by the law. In particular, a constitutional commit-
ment of the kind just noted will require the state to honor a principle
limiting punishment to violations of publicly announced prohibitions.
This further principle relies on the notion of fair warning:
A Fair Warning Principle. State agents may impose punishment only
for conduct that violates publicly announced prohibitions on conduct.
This principle is understandable in terms of a maxim of Roman law
(nulla poena sine lege—no punishment in the absence of law). Given the
principle, even wrongful conduct is immune from state-imposed pun-
ishment absent publication of the prohibition.
This said, though, neither a constitution nor a fair warning principle
can ensure just enforcement of prohibitions of wrongdoing, so public
discussion of the principles of justice is needed over and above judicial
decisions that enforce the constitution. A final principle is in order,
then.
A Civic Commitment to Adherence to the Principles of Justice.
State power must constantly be monitored to promote adherence to jus-
tice in settings where judicial oversight fails to ensure state adherence to its
surrogacy role.
33
It’s this proposition that informs discussion in the second half of the
book, for the argument advanced in that portion of the book is that the
American Constitution doesn’t fully ensure criminal justice, thus mak-
ing it essential to invoke the concept of justice to evaluate state practices
above and beyond judicial interpretations of the Bill of Rights. Before
turning to these comments on the current state of American criminal
justice, though, we should consider the institutional changes that have
made it possible for the state to exercise its nearly monopolistic power
in criminal justice. The next two chapters emphasize the delicate bal-
ance at stake in the actual institutions of criminal justice, a balance
that promotes public safety while limiting the authority of the state.
The chapters that immediately follow this one thus consider the align-
ment of theory of practice. We have already examined theoretical ques-
tions about justice and criminal justice. We will now see how practice
unfolded in a way that is largely, though not entirely, consistent with
theory.
Notes
1. Exodus 21: 23–24 (New Revised Standard Version, 2007).
2. Leviticus 23: 17–12 (New Revised Standard Version, 2007).
3. Code of Hammurabi, Sect. 196 (Stanley Cook, trans.), as discussed in
Cook, The Laws of Moses and the Code of Hammurabi 249 (2010).
4. Alvin Gouldner was among the first commentators—indeed, he was
perhaps the first—to use the term negative reciprocity in the sense
employed here. See his “The Norm of Reciprocity,” 25 American
Sociological Review 161, 172 (1960).
5. These comments are compatible, in at least some respects, with
Friedrich Nietzsche’s remarks on justice: “Justice (fairness) originates
between parties of approximately equal power, as Thucydides correctly
grasped (in the terrible colloquy between the Athenian and Melian
ambassadors [reported in The Peloponnesian War Bk. 5, Chapter 7]);
where there is no clearly recognizable superiority of force and a contest
would result in mutual injury producing no decisive outcome the idea
arises of coming to an understanding and negotiating over one anoth-
er’s demands,” Nietzsche writes. Nietzsche thus asserts that “[j]ustice is
34
W. C. Heffernan
… requital and exchange under the presupposition of an approximately

equal power position” and that “revenge therefore belongs equally
within the domain of justice.” Human, All Too Human I, 92 [1878], as
found in supplementary material to On the Genealogy of Morality 132
(Carol Diethe, trans. 1994) (emphasis in original). Indeed, Nietzsche’s
linkage of positive and negative reciprocity (my terms, not his) pro-
vides a particularly insightful analysis of justice as a comprehensive con-
cept, one that includes mutually beneficial as well as mutually harmful
interaction.
In this respect, Nietzsche’s approach is considerably more satisfactory
than that of Rawls, for Rawls refuses to consider criminal justice (see
infra, note 6) as a component of justice itself. Nietzsche’s focus on
“requital and exchange under the presupposition of an approximately
equal power position” anticipates the equality component of the
Rawlsian concept of the original position while linking welcome and
unwelcome exchanges.
This said, Nietzsche’s account of equal power as the key to understand-
ing justice differs from Rawls’s account of the concept in two impor-
tant respects. First, Nietzsche’s analysis is naturalistic: it relies on a
supposed historical event (as reported by Thucydides) to explain the
origin of justice whereas Rawls introduces the concept of the original
position as part of an extended thought experiment designed to iden-
tify the ideal terms of fair cooperation. And second, Nietzsche’s discus-
sion accepts the betrayal option open to the ethical egoist in the event
that one party gains “recognizable superiority of force” over the other.
In contrast, the Rawlsian thought experiment presupposes parties com-
mitted to fair dealing with one another even when one acquires greater
resources than those of his/her peers.
Given these differences between Nietzsche and Rawls, it can’t be said
the former proposes a normative concept of justice. Rights and Wrongs
thus relies primarily on the Rawlsian thought-experiment (involving
the original position and the veil of ignorance) to introduce the con-
cept, and it does so in order to treat justice as a concept that overrides
the impulses of the ethical egoist. Nonetheless, Nietzsche’s comments
are worth careful consideration since they emphasize, as Rawls’s
remarks do not, the symmetry between beneficial and retaliatory inter-
action as components of a comprehensive account of justice.
35
6. Although the argument presented in this paragraph relies on the

Rawlsian concept of the veil of ignorance, it ventures beyond Rawls’s
comments on justice, for Rawls contends that “[t]he question of crim-
inal justice belongs for the most part to partial compliance theory,”
with the result that Rawls does not consider criminal justice within the
framework of the original position and the veil of ignorance. A Theory
of Justice 315 (1971).
In contrast, the premise of this book is that veil-of-ignorance reason-
ing is indispensable for resolving the questions associated with punish-
ment and the role of the state in imposing this. There are four reasons
why even Rawls might well agree with this point and might thus recon-
sider his refusal to bring criminal justice within the ambit of his general
remarks on justice. One is that Rawls argues that the concept of impar-
tiality is essential to his conception of justice as fairness. See id. 184.
As this chapter suggests, impartiality is procedurally necessary if pun-
ishment is to be justified. Second, Rawls contends, consistently with
J.S. Mill, that “paternalistic intervention must be justified by the evi-
dent failure or absence of reason and will….” Id. 250. This limitation
on legal paternalism is consistent with the argument for decriminali-
zation of most drug possession crimes advanced in Chapter 5 infra.
Third, his dismissive remarks on criminal justice notwithstanding,
Rawls concedes elsewhere that “we need an account of penal sanctions”
in order to understand the state’s legitimate role in punishing wrong-
doing. See id. 241. The account offered in Chapter 7 infra, while by
no means identical with Rawls’s remarks on penal sanctions, answers
this need. And finally, because Rawls is concerned with the conditions
of equal liberty (see particularly id. 100–8), it’s essential to consider
questions about the unequal application of penal sanctions. This issue is
addressed in Chapter 8 infra.
7. Gospel According to Matthew 5:38–42 (New Revised Standard Version,
2007).
8. The Sermon on the Mount culminates in the remarks on lex talionis
quoted in note 6, supra, and accompanying text, but it begins with
the following beatitude: “Blessed are the poor in spirit, for theirs is the
kingdom of heaven.” Id. 5:3.
9. For discussion of preventive measures that can be taken in the
absence of any restraint of individual liberty, see Marcus Felson and
36
W. C. Heffernan
R.V.G. Clarke, Opportunity Makes the Thief: Practical Theory for Crime
Prevention (1998).
10. For an argument that focuses on the state’s exercise of power to prevent
dangerous behavior, and that therefore discounts, and points toward
the possible elimination of, punishment the wake of a harmful act, see
Barbara Wootton, Crime and the Criminal Law (1965).
11. For a review of the relevant literature, and evidence that a 50% or bet-
ter rate of accuracy in predicting dangerousness is rarely attained, see
John Monahan, “A Jurisprudence of Risk Assessment: Forecasting
Harm Among Prisoners, Predators, and Patients,” 92 Virginia Law
Review 391 (2006).
12. For a review of current standards of civil commitment, see Candice
Player, “Involuntary Outpatient Commitment: The Limits of
Prevention,” 26 Stanford Law & Policy Review 159 (2015).
13. It’s essential to note, however, that passages in a different portion of the
Torah set procedural requirements for the imposition of punishment,
requirements designed to promote impartiality. See, e.g., Numbers
35:30 (requiring the testimony of two witnesses before someone can be
executed).
14. This point is consistent with John Locke’s concern that justice is under-
mined when “Men [are] Judges in their own Case….” Second Treatise on
Civil Government para. 13 (1690).
15. The argument advanced in this paragraph draws on the reasoning

of Jean Hampton in “Correcting Harms vs. Righting Wrongs,” 39
U.C.L.A. Law Review 1659 (1992).
16. For analysis of this point and of Jeremy Bentham’s position on the
social utility of framing the innocent, see Guyora Binder and Nicholas
Smith, “Framed: Utilitarianism and Punishment of the Innocent,” 32
Rutgers Law Journal 115 (2000).
17. The scope of state power outlined in the preceding paragraphs is weaker
than that discussed by Max Weber. Weber argues that “a state is a
human community that (successfully) claims the monopoly of legitimate
use of physical force within a given territory.” “Politics as a Vocation,” in
From Max Weber: Essays in Sociology 78 (H.H. Gerth and C. Wright
Mills, trans., 1958) (emphasis in original). No person concerned about
preserving his/her freedom would agree to grant a permanent enforce-
ment agency the kind of monopolistic power Weber mentions, for
none would agree that the state can legitimately abridge someone’s
37
right of self-defense. Even the more modest specification of the scope

of state power outlined in the previous paragraphs would evoke only
the equivocal kind of response described in the text. In this respect,
the four propositions about state power that are proposed at the end of
this chapter rely on a Lockean, not a Weberian, framework of criminal
justice, for Locke presupposes limits on the exercise of government’s use
of coercive power, limits that can ultimately be enforced through legiti-
mate resistance to government authority. See Second Treatise, supra note
14, paras. 213–20.
3
Redressing Grievances:
The Retaliation Model
In turning from theory to practice, it’s essential to begin with the most
basic of questions concerning social organization: how to resolve griev-
ances about harm. Grievances fester: they originate in resentment and
they culminate, at least sometimes, in retaliatory violence. The challenge
they pose has to do with the containment of violence—with identifying
and adopting procedures that forestall retaliation by persuading p arties
their grievances will be fairly resolved. Retaliation can be resolved if
grieving parties expect that their assailants will be punished. In this way,
punishment—even the prospect of punishment—can serve as a mecha-
nism for averting retaliation.
This said, a distinction must be drawn between retaliation and pun-
ishment. Retaliation is possible among equals. Punishment, in contrast,
presupposes inequality. It doesn’t presuppose social inequality. It does,
however, require a difference in authority, one in which someone asserts
that he/she may properly criticize someone else and so deprive that per-
son of liberty.
On this analysis, the path from retaliation to punishment couldn’t
have been a straight one. Lex talionis is a code of revenge. When adher-
ing to it, a member of, say, a tribe can permissibly strike back against

https://doi.org/10.1007/978-3-030-12782-4_3
40
W. C. Heffernan
another member of that tribe once the retaliator is able to point to an

injury (a lost eye or tooth) suffered at the hands of the other person.
Punishment, on the other hand, presupposes a hierarchy of power.
It’s properly imposed by someone not affected by another’s conduct—
properly imposed, in other words, by a third party (neither a victim nor
an offender) who evaluates a grievance without having been directly
hurt by it. This distinction as to power paves the way for others that
differentiate lex talionis from the practice of punishment—in particu-
lar, the distinction between injury and wrongdoing and the distinc-
tion between equivalence and proportionality in calculating the proper
response to a grievance. The power-hierarchy essential to punishment
makes it possible to understand, then, the social evolution that occurred
as grievance-redress ceased to be a matter of retaliation and came to be
the province of criminal justice, for it was only when state authority
came to be embedded in everyday life that the revenge practices charac-
teristic of tit-for-tat retaliation began to be supplanted by the exercise of
impersonal procedures for redressing grievances.
This transition is one of civilization’s great achievements. Although
the exercise of authority by the modern state is open to substantial crit-
icism, it’s also true that the rise of state power during the last millen-
nium has contributed to a dramatic reduction in acts of violence. This
chapter and the next chart the transition from retaliation to criminal
justice by treating each as a model of grievance-redress. The table below
outlines the factors peculiar to each model (Table 3.1).
In accounting for the transition from one type of grievance-redress
to the other, we will consider real-world factors that have made it
possible to replace self-help remedies with socially prescribed proce-
dures that channel, while not eliminating completely, the instinct for
Table 3.1 Two models of grievance-redress

Retaliation model Criminal justice model
Triggering event Injury Culpable act
Mode of grievance-redress Self-help State supervision of
complaint
Criterion for redressing Equivalence Proportionality
grievance
3 Redressing Grievances: The Retaliation Model
41
revenge. The factor essential to our analysis is the profound reluctance

of those who benefit from power-disparities to forgo their advantages
when settling grievances with others. As we have seen, arguments about
justice depend on hypotheticals: they are framed in terms of proposi-
tions about what individuals would do when reasoning behind a veil of
ignorance. Here, we dispense with hypotheticals and so turn to a key
question about human history, for we ask how governments succeeded
in getting the powerful to yield their advantages even in settings where
those with power could do better for themselves by preserving what
they had. We can call this the problem of social order. In considering it,
we will have no occasion to set aside the principles of justice and crimi-
nal justice outlined earlier. Rather, we will instead have an opportunity
to think about how those principles took on institutional form (albeit
highly imperfect institutional form) over the course of many centuries.
In thinking about this, we will see how centralized authority modified,
without eliminating, the revenge instinct essential to lex talionis.
In deploying the models noted above, we should start out with “pure”
versions of each: a pure retaliation model (analyzed in this chapter)
and a pure criminal justice model (analyzed in the next). These are
book-ends of historical development—book-ends in that they are pro-
posed as frameworks for thinking about the history of grievance-redress,
not because they have been encountered in their pure form at any
time in history. Once each chapter identifies the general features of the
pure model with which it’s concerned, it examines variations on that
model—i.e., the rules, regulations, and conventions the model helps to
illuminate. Patterns of practice considered in this chapter include rules
that mitigated the stark effect of self-help for grievance-redress without
wholly repudiating it. Patterns of practice considered in the next chap-
ter include rules that have diluted state domination of criminal justice
while nonetheless allowing government officials primacy in this context.
It’s because the changes at stake have been so momentous that mod-
els are needed to think about the course of historical development. The
models will guide our inquiry, then, although emphasis will be placed
throughout on the degree to which actual practice diverges from the
simplifications of reality they propose.
42
W. C. Heffernan
The Pure Retaliation Model

The Bible’s version of lex talionis presupposes a modest degree of com-
munal authority over the resolution of grievances. In limiting retaliation
to one eye when only one has been taken, Moses invoked the Lord’s
will to claim for the Israelite community the authority to restrain an
aggrieved party from exceeding a loss that had already been sustained.
While speaking as a prophet, Moses thus assumed the possibility of
some kind of legitimate public intervention to limit the scope of retal-
iatory self-help. The Mosaic limitations are not extensive. The pas-
sages quoted say nothing about the evidence an aggrieved party must
present. Moreover, they say nothing about whether a third party—an
impartial observer of some kind—must be summoned to evaluate the
aggrieved party’s evidence before a retaliatory strike may proceed.1
And the passages say nothing about who will administer the tit-for-tat
remedies—they say nothing, but it’s nonetheless clear that they con-
template that the aggrieved party will act on his own. In many respects,
then, the Exodus and Leviticus passages quoted in Chapter 2 are com-
patible with core components of the pure retaliation model. But
because they take for granted the possibility of legitimate communal
restraint of an aggrieved party’s effort to strike back, they can’t be classi-
fied as examples of the pure retaliation model of grievance-redress.
We can put this point differently by saying that the pure retaliation
model has nothing whatsoever to do with the exercise of authority by
members of a community in which one party strikes back at another.
The pure model is consistent with a claim by community members
that they expect aggrieved parties to exercise self-restraint. It’s even con-
sistent with community members’ belief that there is a norm which
mandates self-restraint. But the pure model doesn’t presuppose an
institution—an enforcement agency—vested with the power to restrain
victims aggrieved by other parties’ injuries. Given these points, we can
say that the pure retaliation model consists of three components. The
first has to do with injuries. Under the model, these consist of harm
to an aggrieved party. The second has to do with self-help—that is,
with a victim’s effort to satisfy his grievance on his own. And the third
has to do with equivalence—that is, with the rule (not enforced by an
43
authoritative communal institution but perhaps embedded in com-

munal norms) that limits the victim to infliction of no more than
the injury initially inflicted. Under the pure retaliation model, then,
(i) a party aggrieved by injury (ii) retaliates on his own by (iii) inflicting
equivalent pain (no more or less) on the offending party.
Needless to say, there is no document from the ancient world that
outlines this version of retaliation. The reason for this is easy to
understand. Rules about grievance-redress were written only after
government—i.e., an authoritative enforcement agency, however prim-
itive—emerged as a component of communal life.2 The Bible’s version
of lex talionis is compatible with this point. That is, the Torah (Exodus is
the second, and Leviticus the third, book of the Torah) treats Moses
not merely as a prophet but also as a spokesman for an embryonic
enforcement agency among the Israelites. Thus, the Torah demonstrates
at most that once a transition was made from an acephalous society
(i.e., one without a ruler) to a society with a leader acknowledged to
make authoritative rules for its members, someone who succeeds in
claiming this power for himself (perhaps by presenting himself as a
prophet, as Moses did, or perhaps in some other way) is also able to
place limits on revenge.
Can more be said on behalf of the historical standing of the pure
retaliation model? Can it be said that even before the emergence of rul-
ership there were expectations/understandings/unlegislated norms that
limited retaliatory self-help according to a criterion of equivalence? The
answer to this is that there is no conclusive evidence to support a prop-
osition along these lines. We thus must settle for the suggestive claim
that provisions such as the Exodus and Leviticus passages are compatible
with the speculative possibility that a tit-for-tat approach to retaliation
isn’t merely an artifact of archaic societies but that such an approach is
actually grounded in a deep evolutionary instinct to respond to injury
by inflicting an equivalent injury.3
But even if there is no support in the historical record for such an
ambitious claim about human nature, it can readily be granted that
there is ample evidence in modern life to underscore the persistence
of retaliatory feuding even after the growth of institutions designed
to restrain violence. The most salient feature of feuding—retaliatory
44
W. C. Heffernan
tit-for-tat—continues to exist in the present day. Some feuds erupt in

violence (think, for example, about the Hatfield/McCoy feud that
was lethally conducted by warring families for more than a genera-
tion in Kentucky and West Virginia). Some are conducted in nonvio-
lent ways, thus evading the modern state’s criminal and civil power
even though they do lasting damage to the people involved in them.
But whatever the specifics of this or that current feud, the pure retalia-
tion model helps to make sense of the structure of all such disputes, for
the pure retaliation model is concerned with the characteristics of con-
temporary as well as ancient feuds. Needless to say, because parties act
self-interestedly when feuding, they often disagree about the facts per-
tinent to each of the components just mentioned (and so disagree, for
example, about whether an injury occurred or whether a response was
exactly equivalent). But this point doesn’t undermine the soundness of
the model just mentioned. Rather, it underscores the importance of a
third-party’s role in mitigating disorder by arbitrating the grievances
produced by feuding.
It’s evident at today’s remove from the ancient past that the most
effective of all possible third parties for mitigating the ill effects of
feuding—i.e., the state—can reduce substantially the disorder gener-
ated by the revenge instinct. It’s also arguable that those who engaged in
feuding in the ancient world were dimly aware that a central authority
might succeed in restraining them. But even if this point was under-
stood in the distant past, it could not have been sufficient by itself to
banish feuding, for whenever efforts are made to limit violence the
question necessarily arises as to who should stop first—as to who, in
other words, should accept terms that limit the scope of retaliation
when acceptance of those terms might expose the person adopting them
to the risk of betrayal by others who have merely pretended to agree.
This is the practical challenge associated with the problem of social
order. To put this point in terms outlined earlier, it’s a challenge asso-
ciated with the if…then dynamic associated with all social relations: if
I refrain from aggression, then will you do as well (or will you instead
use my peaceful disarmament as an opportunity to engage in an unpro-
voked attack)? This question can’t be resolved by theorizing. The the-
ories discussed in Chapters 1 and 2 explain why someone reasoning
45
impartially about the fair terms of communal life would endorse certain
rights that facilitate peaceful social interaction. They don’t, however,
explain how institutions emerged that produced the social conditions,
in particular the degree of trust, essential for an aggrieved party to for-
swear retaliatory violence and instead rely on the impartial judgment of
an official operating on behalf of an enforcement agency.
No definitive answer is possible as to why people turn from retalia-
tion to cooperation.4 Because there is no documentary evidence of the
transition from acephalous social organization to rulership, we have to
begin with the brute fact of government authority (as reflected in the
decrees and scriptures that have survived from archaic societies), in par-
ticular with claims advanced by ancient emperors to wield power as a
consequence of divine blessing. In medieval Europe, rulers were typi-
cally called kings. Like their even earlier predecessors, they invoked the
blessing of God to assert that they could legitimately use force to rein
in feuds and so promote social order. Medieval monarchs were weak
enforcers, however. They had none of the components of the modern
state: there were no police or prosecutors in medieval kingdoms, and
although there were judges of royal courts, those judges were often
unable to ensure compliance with the orders they issued. In thinking
about medieval government, we thus have an opportunity to examine
an embryonic enforcement agency, one in which government exer-
cised weak, but not wholly nonexistent, power in restraining feuds. The
examples here are drawn primarily from Anglo-Saxon England (i.e.,
England from the ninth through the eleventh centuries). Although
peculiar to their time and place, the examples are nonetheless suggestive
of a more general trend away from self-help in retaliating for grievances.
Moving Away from the Pure Retaliation Model:

The Medieval State as a Weak Enforcement
Agency
In a pure retaliation scenario, A and B confront only each other as
they act on their grievances. The simplest modification of this setting
involves the introduction of a third-party arbiter to review the claims
46
W. C. Heffernan
that divide the disputants. As noted earlier, there are no documents

that explain why feuding parties came to accept the authority of kings
as arbiters. All that can be said with confidence is that leaders emerged
who presented themselves as impartial enforcers of God’s will. In
Anglo-Saxon England, aspirants to the various crowns of the British Isles
(there were multiple kingdoms in ninth-century England) combatted
other aspirants to those crowns, and the victors backed up their asser-
tions of legitimacy by claiming God’s blessing. Although medieval kings’
claims to divine favor are no longer plausible, it’s nonetheless clear that
the fiction on which these claims rested was socially beneficial, for kings
were uniquely suited to resolve problems of communal order. This is
because kings could claim to reason from a less partisan perspective than
the one employed by their subjects. It’s this contrast between the poten-
tial for royal impartiality and the naked partisanship of lesser aristocrats
that’s essential to understanding how rulers with relatively few resources
to ensure public order could nonetheless produce a modicum of restraint
in the violent, intensely partisan culture of the early Middle Ages.
That restraint was achieved through efforts to alter the culture of
feuding—to move it indoors, as it were, by changing the locus of the
feud from the fields and forests where partisans attacked one another
to an adjudicatory forum regulated by royal authority. One histo-
rian has asserted that “early English justice was essentially that of the
blood-feud”5—an exaggeration, perhaps, in that grievance-redress didn’t
always center on feud-like quarrels, but a helpful generalization none-
theless as long as we limit ourselves to the claim that early medieval law
was shaped (though not entirely determined) by a culture of feuding.
In particular, four factors, each related to feuding, shaped Anglo-Saxon
law. The first has to do with the catalyst for feuds: as medieval sagas
make clear, the thirst for retaliation had deep roots in a shame culture,
one in which a slight to someone’s honor was often sufficient to trigger
a violent reprisal.6 The second has to do with the multiparty nature of
feuding, in particular with the network of alliances (based in part on
clan relations, in part on strategic groupings unrelated to family ties)
that radiated out from an initial encounter.7 The third has to do with
the passage of time. Although feuds could sometimes last only a short
time, they often endured over generations (with the result that years,
47
even decades, might pass between eruptions of violence).8 And the

fourth has to do with the resolution of grievances. Given the relative
weakness of medieval monarchs, kings were often unable to bring feuds
to an end. Indeed, only on rare occasions could kings impose their will
by force of arms.9
This final point is sufficiently important that it’s worth quoting from
legislation adopted by Anglo-Saxon kings that openly acknowledged
the existence of feuding (and that implicitly acknowledged the limits of
royal power). One example of an indirect confession of weakness can be
found in a rule formulated by King Alfred, who presided over Wessex
in the late ninth century. “[W]e fix this peace for each church that a
bishop has consecrated,” Alfred declared, “if a man at feud reaches run-
ning or hiding, let no one pull him out for seven days.”10 Alfred offered
qualified protection for a feuding party, in other words—a week’s
exemption from seizure by rivals—but he could offer no more than this
given the intensity of the feud culture over which he presided.
In the centuries that followed, Alfred’s successors openly conceded
that it was difficult to stamp out feuding. For instance, Edmund, a
tenth-century king, stated plaintively that “[t]he authorities must put
a stop to vendettas,” a statement that identified a goal unlikely to be
achieved but that nonetheless affirmed the monarchy’s distinctive role
in trying to reduce the ill effects of widespread violence.11 A third exam-
ple underscores just how little Anglo-Saxon kings actually achieved.
A half-century after Edmund called for an end to vendettas, Canute,
who became king in 1016, conceded (though of course only by impli-
cation) the persistence of feuding by stating that killers must be handed
over to the victim’s kin.12 A rule of this kind accommodates retaliation.
Its adoption signals that government is unable to serve as an impartial
arbitrator. It instead grants the legitimacy of victim-initiated payback by
authorizing members of an aggrieved clan to get back at those who have
harmed one of their own.
Not every law of the time conceded so much to the culture of feud-
ing, however. Indeed, the examples of Anglo-Saxon legislation dis-
cussed in the remaining portion of the chapter demonstrate that kings
of the day strove mightily to restrain their vengeful subjects—and
the examples further demonstrate that kings could plausibly claim to
48
W. C. Heffernan
be impartial arbiters on behalf of the common good. But as will also

become clear, Anglo-Saxon monarchs could do little to ensure compli-
ance with the regulations they adopted. It’s for this reason that we can
say that they exercised royal authority but that we can’t take the further
step of saying that they exercised state power.13 Although there is no
threshold moment when the state emerged in Europe, it would clearly
be misleading to say that Anglo-Saxon monarchs presided over states.14
Rather, early medieval kings presided over super-fiefdoms—and they
did so without the bureaucratic apparatus available to Renaissance mon-
archs and their successors. Limitations on royal power are apparent in
all three variations on the retaliation model outlined below.
Seeking Redress for a Grievance. Anglo-Saxon law made no provi-
sion for public prosecution of those who injured others. As one histo-
rian has put it, the typical procedure “in the early Middle Ages hinged
on the appearance of the accuser, who brought charges, offered to prove
it, and took the consequences for doing so.”15
Did Anglo-Saxon jurists think of feuding and injurious acts under-
taken outside the context of feuding as purely private matters, then? The
answer to this is no. The very fact that laws announced by early medie-
val kings mentioned feuds indicates that these were treated as matters
of public concern. And the further fact that laws of the day anticipated
the possibility of royal involvement in the resolution of disputes indi-
cates that the issues under consideration were deemed public. This
said, though, it’s clear that Anglo-Saxon law placed the victim, not the
community, at the center of the grievance-resolution process. As noted
in the previous chapter, criminal justice treats the community as cen-
tral to grievance-resolution, for it vests prosecutors, not victims, with
the exclusive authority to seek legally authorized punishment. In con-
trast, Anglo-Saxon law was grounded in the elementary—one might say
elemental—premise that the victim, as the one who suffers injury, must
also be the one to seek redress for this.
Because victims set the grievance-redress process in motion,
Anglo-Saxon law is best understood as an extension of feuding.

It provided a forum for adversaries to continue their disputes. It
“domesticated” them, we might say, by providing adversaries with an
opportunity to continue their disputes under the watchful eye of the
49
community. In some respects, the degree of restraint demanded by

Anglo-Saxon law was modest indeed. When someone was caught in a
prohibited act, for instance, a victim was permitted to retaliate immedi-
ately.16 In a circumstance such as this, the law merely added its impri-
matur to what might otherwise have been an act of wild justice.
But what if the evidence was unclear? For example, what if there was
no eyewitness to a prohibited act? When this was the case, Anglo-Saxon
law sought to restrain the impulse for immediate redress. It did so, how-
ever, by relying on modes of proof that seem primitive by later stand-
ards, for its prime vehicle for resolving disputed questions of fact was
the ordeal, a procedure in which the accused either was dunked in water
or subjected to a hot iron, with the result interpreted as evidence that
God had reached a conclusion about the suspect’s guilt.17 Needless to
say, this is hardly a rational means of establishing a disputed fact, for the
accused’s response to an extreme physical challenge has no bearing on
the validity of an accusation lodged against him. But to the extent that
ordeals satisfied doubts about guilt (a distinct possibility since the out-
comes were viewed as expressions of God’s will), they almost certainly
contributed to crown efforts to reduce the incidence of violence.
Injury vs. Wrongdoing. The pure retaliation model relies on a the-
ory of strict liability for injury. It holds, in other words, that the mere
fact of harm is sufficient reason for imposing equivalent harm on the
person who brought it about. Anglo-Saxon law did not go this far,
for even in the early Middle Ages, jurists appear to have recognized,
though not clearly, that one person can harm another blamelessly.
This said, though, judges of the day focused primarily on results (on
the fact of injury), not on culpability. Put differently, Anglo-Saxon law
was concerned mostly with harm, not on the culpability of the person
who brought this about. In trying to come to terms with this result-
centered frame of mind, we have to consider distinctions that emerged
in the centuries following the Anglo-Saxon era. Anglo-Saxon officials
may have reasoned primarily in terms of results, but later generations
now distinguish between the disposition of an offender (i.e., his/her cul-
pability) and the injury occasioned by an offender’s act. The table below
traces the evolution of the concept of injury in English legal thought. It
notes (by drawing distinctions not entertained by Anglo-Saxon officials
50
W. C. Heffernan
but essential to modern notions of liability) that injuries can occur in

the absence of wrongdoing, and it further notes that the term crime
came to be applied to wrongdoing that affects the communal order,
thus making it possible to distinguish between crime and tort.
We can summarize the points made in this table by saying that they
rely on an intergenerational act of translation. Because the distinction
between criminal and civil law was unknown in the Anglo-Saxon era,
what we now call crimes could have given rise to a variety of griev-
ance-redress options—among them, execution, bodily mutilation, and
damages. Given the different types of responses possible for an injury,
it’s best to accept the verdict of a distinguished legal historian that
“[t]he distinction between crime and tort is … one of the classifications
which it is futile to press on medieval law.”18 In settling for the generic
term injury, we should nonetheless note that the concept of a seriously
culpable act was implicitly acknowledged in Anglo-Saxon rules (and we
should thus accept the further claim that those rules departed modestly
from the strict liability approach to grievance-redress characteristic
of the pure retaliation model). At stake here, in other words, is a pro-
cess of conceptual differentiation, one that unfolded gradually over the
centuries. The potential for this process of differentiation is discernible
in Anglo-Saxon law, for if some injuries were thought to merit greater
punishment than others, it can be said that Anglo-Saxon law antic-
ipated, albeit unclearly, the injury/wrongdoing distinction essential to
modern criminal justice. But the importance of this distinction is dis-
cernible only in retrospect. Indeed, the nature of historical change is
distorted if the categories on the right side of Table 3.2 are imposed on
the early Middle Ages. For that period of history, we should confine our
attention to the left side of the table—and so focus, as the Anglo-Saxons
did, on the brute fact of injury rather than the subtle distinctions that
can be drawn about the way in which an injury was brought about.
Payback. If the term crime has to be set aside when talking about
Anglo-Saxon grievance-redress, the term punishment should be set aside
as well, for talk of punishment makes sense only when condemning
an act of wrongdoing, and medieval law was (at most) informed by an
implicit distinction between mere injury and malicious harm. It’s for
this reason that we should use the term payback, a word that’s eminently
51
Table 3.2 Distinguishing between different types of injuries
Crime (public wrongs)

Wrongdoing →
Injury→ Tort (private and public wrongs)
Harm in the absence of
wrongdoing
suitable for a retaliatory framework, in particular because it emphasizes

the importance of a mental ledger in which an injured party “gets even”
by imposing harm roughly similar to harm already suffered.
Did retaliatory payback in Anglo-Saxon law hinge on a rule of exact
equivalence in this context? Given the Bible’s endorsement of lex talionis,
medieval jurists might have insisted on nothing short of this. They didn’t,
however.19 It’s unlikely that their unwillingness to aim for exact equiva-
lence is traceable to Talmudic interpretations of the Bible, for while the
rabbis who produced the Talmud’s teachings concluded that lex talionis
should not be construed literally (and instead concluded that it should be
read as a rule that requires compensation for an injury), there is no reason
to believe that this exegetical conclusion was something Christian jurists
of the Middle Ages ever encountered.20 It’s thus particularly intriguing
that medieval jurists also backed away from a demand for exact equiva-
lence as far as bodily injury is concerned. They didn’t completely repudi-
ate the equivalence principle, though. Instead, their legislation sometimes
authorized bodily mutilation, sometimes authorized this in addition to
compensation (calculated in terms of wergild, a term that can be translated
as “man-price”), and sometimes authorized only compensation (again, cal-
culated by reference to wergild ). We should first examine authorized muti-
lation sanctions (which were accompanied by wergild tariffs). After that,
we can turn to compensation in the absence of mutilation.
Even when Anglo-Saxon law did insist on bodily mutilation, it
departed from Exodus and Leviticus by settling for sanguinary punish-
ments only roughly equivalent to the injuries suffered. For example, the
laws of King Canute, in setting the penalty for a “thoroughly untrust-
worthy” man, state that such a person “shall have his eyes put out and
ears and upper lip cut off or his scalp removed….”21 The laws of King
Alfred authorize severing a hand or a foot if someone has failed to sur-
vive the ordeal after being accused of theft.22 And the laws of King
52
W. C. Heffernan
Edgar authorize cutting out a perjuror’s tongue.23 Even the last of these
sanguinary punishments has only an approximate equivalence to the
underlying offense, it should be noted. Lex talionis aims at replicating
the harm a victim has suffered. Cutting out a perjuror’s tongue doesn’t
replicate the offense committed; rather, it captures the essence of the
offense (i.e., lying) by eliminating the body part (i.e., a tongue) that
made the offense possible. Exact tit for tat is for forgone, then, though
a rougher version of it (that still relied on shedding an offender’s blood)
was considered acceptable.
On those occasions when the law called for shedding blood, the act
of mutilation served three functions. First, bodily mutilation alerted
the public that someone had been deemed an offender. Second, muti-
lation had a general deterrent effect: disfigurement not only warned
the public that an “untrustworthy man” (the term used in Anglo-Saxon
legislation) was present, it also discouraged others from engaging in the
kind of behavior that could bring about the result. And third, mutila-
tion degraded offenders. To put this point differently, someone suffering
mutilation became a partial outlaw. That person continued to live in the
community, but the stigmatization produced by mutilation meant that
that person was consigned to a permanently lower status than the one
he/she had previously enjoyed. (It should be added that those who were
charged with injuring others but who escaped capture were classified as
outlaws; they were complete outcasts, in other words.24)
On some occasions, legislation called for mutilation in the event an
offender failed to provide monetary compensation. Canute’s laws state,
for instance, that someone who is “guilty of a capital deed while serving
in the army … shall lose his life or his wergild.”25 In this case, wergild
operated as a fine payable to the crown. An offender’s man-price would
be recouped by the crown, in other words. Given this rule, we can say
that the borderline separating infliction of pain and compensation was
permeable. Compensation may have been preferred, but bodily pain
could be imposed if it wasn’t provided.
On other occasions, compensation alone was authorized. The laws of
Aethelbert establish the following price schedule: 20 shillings for a sev-
ered thumb, nine shillings for a shooting finger, four shillings for a mid-
dle finger, and six shillings for a gold finger (i.e., the finger traditionally
53
used for rings). One can imagine a rule of exact equivalence here: the
offender’s thumb for the victor’s thumb, the offender’s shooting finger
for the victim’s, and so on.26 Instead, Aethelbert settled for a pricing sys-
tem: he settled on a menu for body parts, as it were. The difficulty with
this menu-based approach can easily be understood, for a price-tariff
in body parts (in human life, for that matter) carries with it the moral
hazard that the rich will view fines as the acceptable of taking revenge
on opponents. Moreover, a tariff on body parts creates an incentive
even for those who aren’t wealthy to save up for acts of revenge—to
anticipate an act such as finger-severing as a pleasurable experience
worth the price assigned it. Because this menu-based approach is so
striking, it’s essential to emphasize that Anglo-Saxon law didn’t follow it
in all instances: the exclusive penalty for some injuries was bodily pain.
That a price-framework was ever followed, however, underscores the dif-
ference between archaic law and criminal justice.
A final example, drawn from a series of laws announced by King
Edmund during the late tenth century, brings together many of the
themes discussed in this chapter—and so serves as a coda for thinking
about Anglo-Saxon grievance-redress. “Henceforth,” Edmund declares,
“if anyone slay a man, he shall himself bear the vendetta, unless with
help he pays composition for it, to the full amount of the slain man’s
wergild, according to his inherited rank.”27 This rule addresses, in a sin-
gle sentence, five features of the laws we have been examining. First,
it deals explicitly with feuding: a killer shall “bear the vendetta” unless
he and his allies pay compensation. Second, it presupposes a network
of loyalties, a network that radiates out from an initial aggressor to his
kinfolk and acquaintances. Third, it allows for the possibility of com-
pensation for homicide—“wergild according to [an offender’s] inherited
rank,” a term that underscores the inequalities built into Anglo-Saxon
law in that sanctions were graded according to a victim’s rank. Fourth, it
focuses on injury, not wrongdoing: its concern is slaying, not murder, so
it opens up the possibility of legal liability even in settings where A kills
B in self-defense. And fifth, it suggests that Edmund, while anxious to
serve as the order-enforcer of his realm, had few reserves of his own to
ensure compliance with the laws he announced.
54
W. C. Heffernan
This last point is underscored by the rules that follow the one just
quoted. “If, however, all his kindred [i.e., the killer’s kin] abandon him
and will not pay compensation on his behalf,” Edmund states, “it is my
will that, if afterwards, they give him neither food nor shelter, all the
kindred except the delinquent shall be free from vendetta.”28 If compen-
sation isn’t paid, in other words, the king has to operate by indirection.
He can’t imprison the offender (for he has no prison on which to rely),
so he exempts kinfolk from sanctions even when they fail to pay for an
injury brought about by an offender provided they don’t offer him food
and shelter.
And what if the kinfolk actually do shelter the offender (while also
failing to pay compensation)? The very question underscores the limits
of royal power? Modern legislation only occasionally consists of if …
then statements that contemplate noncompliance with its prohibitions.
In contrast, the possibility of noncompliance is critical to Edmund’s
decree. His rule for this eventuality is straightforward: seize the property
of the sheltering kinfolk and grant legal standing to the feud. “If, how-
ever, any of his kinfolk harbor him hereafter,” he states, “that kinsman
shall forfeit all his property to the king, and shall incur vendetta with
the kin.”29
And what if the feud metastasizes? What if one or more of the
offender’s kinsmen don’t simply provide shelter but actually join the
offender by attacking one or more of the victim’s kin? In the final rule
of the series, Edmund answers that he’ll side with the party suffering
the original injury. “If, however, anyone from the other kindred shall
take vengeance on any man other than the actual delinquent,” Edmund
states, “he shall incur the hostility of the king and of all his friends, and
shall suffer the loss of all that he possesses.”30 This remedy is grounded
in a corollary of the principle of negative reciprocity (a corollary that
might be formulated in the following way: he started it, so he has to
accept the consequences of what he did ) as applied to an entire commu-
nity, with the result that the entire community is authorized to retal-
iate against the person who brought about the initial injury. Given
Edmund’s limited resources, it’s understandable that he settled on this
way to contain feuding. He had no police force, no network of prisons.
His only option was to turn to those not involved in a feud: to treat the
55
community as a party to a feud by authorizing it to act by force of arms

against the person who initiated the cycle of violence. In adopting this
approach, Edmund treated the community as the agent of negative reci-
procity against an aggressor.
Looking back, one might say that this last rule anticipates the possi-
bility of criminal justice. It does so only vaguely, however, for Edmund
couldn’t rely on the apparatus of state power essential to criminal jus-
tice. The challenge Edmund’s successors confronted was to establish
institutions that could serve as a meaningful surrogate for victims of
wrongdoing—and thus eliminate the culture of feuding.
Notes
1. As pointed out in Chapter 2, note 13, Numbers 35:30 imposes an evi-
dentiary rule (two witnesses) for convicting someone of murder. If the
Torah (i.e., the first five books of the Hebrew Bible) is read as a sin-
gle unit, it thus might be said to qualify the no-witness framework of
the Exodus and Leviticus passages cited in Chapter 2, notes 1 and 2.
Standing alone, though, those passages say nothing about the evidence
a party must present before seeking “life for life.”
2. There are numerous rules of grievance-redress from the ancient world
that authorized sanguinary sanctions similar to the ones found in
Exodus and Leviticus, but these of course are examples of officially
authorized retaliation. See, e.g., Code of Hammurabi, Sect. 196 (Stanley
Cook, trans.). See also the Twelve Tables of Ancient Rome (John Paul
Adams, trans.), available at: csun.edu/--hcfl00412tables.html.
3. For extended analysis of this speculative point, see Robert Axelrod,
The Complexity of Cooperation: Agent-Based Models of Competition and
Cooperation (2009).
4. Nonetheless, an extensive literature now exists as to the social precon-
ditions of cooperation and trust. For a helpful introduction, see Samuel
Bowles and Herbert Gintis, A Cooperative Species: Human Reciprocity
and Its Evolution (2011).
5. Patrick Wormald, “Early English Justice,” in James Campbell et al., The
Anglo-Saxons 98–99 (1982).
56
W. C. Heffernan
6. For discussion of Anglo-Saxon and Norman shame culture, see Paul

Hyams, Rancor and Reconciliation in Medieval England 11–12 (2003).
7. A telling example of this can be found in the rules adopted by the
Cambridge Thegns’ Gild, which were recorded in the tenth cen-
tury, but which almost surely were introduced at an earlier time. See
Dorothy Whitelock, ed., Councils and Symbols with Other Documents
Relating to the English Church, Document 136 (1981).
8. Hyams speaks of “the uneasy equilibrium” that augured the end of a
feud but that could also be the prelude to a renewal of hostilities.
Hyams, supra note 6, at 88.
9. In discussing the laws of King Edmund, Hyams flatly asserts that “the
king intended no outright prohibition of feud.” Id. at 83.
10. As quoted in Patrick Wormald, The Making of English Law: King Alfred
to the Twelfth Century: Vol. 1, Legislation and Its Limits 272 (1998).
11. II Edmund, Sect. 7, in A.J. Robertson, The Laws of England from

Edmund to Henry I 11 (1925).
12. For discussion of this rule, see Hyams, supra note 6, at 106.
13. James Campbell, it should be noted, entitles one of his books The
Anglo-Saxon State (2000). He does not, however, claim (as one of
course cannot) that the authority of Anglo-Saxon kings was backed up
by the administrative apparatus essential to criminal justice—an inves-
tigative body (police) or one that can carry out incarceration (correc-
tions). This is the state apparatus whose emergence is examined in the
next chapter.
14. For analysis of the factors that account for the emergence of the mod-
ern state, see Gianfranco Poggi, The Development of the Modern State:
A Sociological Introduction (1978).
15. Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal
29 (1986).
16. Sed II Canute, Sect. 26, 1 in Robertson, supra note 11, at 189.
17. For discussion of modes of proof under different types of ordeals, see
Bartlett, supra 15.
18. Theodore Plucknett, A Concise History of the Common Law 422 (5th
ed., 1956).
19. For discussion of medieval jurists’ analysis of lex talionis, see Patrick
Wormald’s commentary on Lex Baiwarium, an eighth century text that
reviews Mosaic law, in Wormald, supra note 10, at 43–44.
57
20. For the Talmud’s explicit rejection of a literal interpretation of lex tal-
ionis, see Talmud Baba Qama 83b–84a, as quoted and discussed in
James Kugel, How to Read the Bible: A Guide to Scripture Then and Now
268 (2007).
21. II Canute, Sect. 30, 5 in Robertson, supra note 11, at 191.
22. For discussion of this, see Wormald, supra note 10, at 148.
23. III Edgar, Sect. 4, in Robertson, supra note 11, at 25.
24. See, e.g., Aethelred’s rule concerning outlaws: “And everyone who is
an outlaw in one district shall be an outlaw everywhere.” III Aethelred,
Sect. 10, in id. 69.
25. II Canute, Sect. 61, in id. 205.
26. For the entire “menu,” see Lisi Oliver, The Beginnings of English Law 72
(2002).
27. II Edmund, Sect. 1, in Robertson, supra note 11, at 9.
28. II Edmund, Sect. 1, 1 in id.
4
Redressing Grievances: The Criminal
Justice Model
Both before and after the Norman Conquest of 1066, English

monarchs made pledges to exercise power consistently with the princi-
ples of justice. Edgar, who was crowned in 973, stated in his Promessio
Regis (Promise of the King): “I promise and enjoin justice and mercy
in the decisions of all cases in order that God, who liveth and reigneth,
may in His grace and mercy be brought to grant us his eternal com-
passion.”1 Medieval successors to the Anglo-Saxon kings—Henry I and
Henry II, for instance—pledged to keep the peace and ensure justice for
all.2 And Elizabeth II, the current monarch, made a commitment in her
coronation oath to “cause justice in mercy to be executed in all judge-
ments” while ruling the realm.3
But while appeals to justice have been a constant in royal discourse
over the last millennium, applications of the term have changed dra-
matically during this time. Indeed, the very term criminal justice is a
relatively modern one. It’s possible, of course, to impose this label on
Anglo-Saxon law. To do so, however, is to rely on a conceptual anach-
ronism. It’s to apply a term that refers to a government-controlled sys-
tem of grievance-redress to an era in which accusations were brought
by injured parties—and so to ignore the fact that the bureaucratic

https://doi.org/10.1007/978-3-030-12782-4_4
60
W. C. Heffernan
apparatus essential to criminal justice (prosecutors, police, prison offi-

cials) had no role in early medieval government. The better approach
is to recognize that a profound transformation has occurred during the
last millennium. It’s to recognize that the negative reciprocity compo-
nent of justice continues to guide human behavior—but to recognize
as well that government now performs a surrogacy role for complain-
ants about grave injury when, in the past, it was victims themselves who
sought redress for the injuries they had suffered.
How did this transformation come about? How did the institutions
of government change in such a way as to promote the principles of
criminal justice outlined in the opening chapters? Needless to say,
today’s criminal justice system doesn’t operate in a way that’s entirely
consistent with the principles discussed in Chapters 1 and 2. Practice is
frequently inconsistent with theory, a point of general significance that
extends beyond the issues addressed here. Nonetheless, the changes we
will consider have produced a rough alignment of theory and practice,
one that places the state at the center of the grievance-resolution process
and that aims at ensuring official impartiality when reviewing facts and
imposing punishments.
This chapter discusses the factors that made such a change possible.
In particular, it focuses on evolving understandings of the proper way
to redress grievances about grave injury. Those understandings were
rarely expressed in concrete terms. To grasp the developmental trajec-
tory that’s unfolded, it’s essential, then, to consider the unstated premise
that’s guided it—that strengthening government power promotes collec-
tive security and contributes as well to fairer treatment of those charged
with wrongdoing. This point may at first sight seem paradoxical, for
while the exercise of government power can often promote public safety,
it doesn’t necessarily produce fairer outcomes. In the case of Anglo-
American law, however, centralization of power has had the effect of
promoting both goals. It has contributed to the reduction of violence—
and it has done so through legal elaboration of safeguards essential to
the fair adjudication of guilt.
Needless to say, this developmental process isn’t attributable to any
one person or even to a master plan adopted by a committee. Rather,
4 Redressing Grievances: The Criminal Justice Model
61
it is the outcome of numerous innovations, many of which were intro-

duced without concern for the delicate balance of state power and
rights-protection that is a hallmark of Anglo-American criminal jus-
tice. We can best understand this process of emergence by referring to
a model—the pure criminal justice model—that simplifies the process
of institutional evolution over the last millennium by accentuating the
coherence of the results achieved. This model serves as a counterweight
to the pure retaliation model examined earlier. Neither one has an exact
equivalent in history. But by considering the contrast between the two,
we will find a useful way to make sense of the course of change. In par-
ticular, as we rely on the pure criminal justice model, we will have an
opportunity to appreciate the subtle way in which enhanced govern-
ment power has contributed to the protection of individual security
and also to the identification of rights that enhance fairness in criminal
matters.
The chapter that follows is divided into two sections. After provid-
ing a brief overview of the pure criminal justice model, the first sec-
tion examines the institutional innovations that accorded government
decisive power in the grievance-redress process. The points made in
the later portion of this section work variations on the pure crimi-
nal justice model; in particular, they explain how lay participation has
served as a modest counterbalance to the exercise of authority by gov-
ernment officials. The second section returns to the pure criminal jus-
tice model. It does so, however, not to comment on the overall course
of change but instead to examine opportunities for taming state
power. Given the nature of contemporary criminal justice, this sec-
tion suggests, it’s essential to draw on the perspective of liberal politi-
cal theory when assessing the structure of grievance-redress—essential
to ask whether the state now exerts too much power given the oppor-
tunities it has to interfere with virtually all aspects of individual lib-
erty. This question would have baffled Anglo-Saxon officials given
the weakness of royal authority in their day. However, it’s inescapably
important now given the accretions of state power since the end of the
Middle Ages.
62
W. C. Heffernan
Moving Toward the Criminal Justice

Model: The Rise of the Modern State
To say that government should serve as surrogate for victims of aggres-
sion is to accept it as an intermediary in the process of negative reci-
procity. As we have seen, under early medieval law, victims spoke for
themselves in seeking redress for their injuries. During the late Middle
Ages, this began to change. Government agencies started to domesticate
the retaliatory impulse: they succeeded, though only gradually, in taking
the initiative in the grievance-redress process and so succeeded in reduc-
ing the incidence of personal vendettas. Three innovations were critical
here. First, the jury of accusation, the forerunner of the grand jury, was
established. Second, judges began to distinguish between crimes and
torts—and so to distinguish between public and private wrongs. And
third, punishment, a term that takes on legal significance only when a
distinction is drawn between crime and tort, began to be understood as
something imposed by government, not by private parties.
Each of the changes just noted is understandable in terms of an
entity that emerged from the feudal rivalries of the Middle Ages—the
state. There is an important sense in which the state was reinvented in
late medieval Europe. Many institutions that can be grouped under the
heading of the state (e.g., a standing army, a corps of administrative offi-
cials, and a judicial system) existed in the ancient world. With the fall
of Rome, though, Western Europe was ruled mostly by skeleton gov-
ernments, by monarchs who were little more than chief warriors within
a network of warring aristocrats.4 The modern state that emerged from
the late Middle Ages gradually reduced aristocratic rivalries. Its insti-
tutional innovations made it possible for kings to exercise more fine-
grained control over the territory they ruled.5 One of the results of this
extra degree of centralized control was a decline in violence. In England,
another result was the extension of power of common law courts—
and thus the elaboration of rules pertaining to the treatment of those
charged with crime.
The criminal justice model presupposes robust state power. In
its pure form, this model is understandable in terms of exclusive
63
government authority over victim complaints about serious wrongdo-

ing. Under the pure model, state officials have sole discretion to deter-
mine whether to lodge charges against alleged offenders that can result
in legally authorized punishment. Private parties still have the option to
seek compensatory damages at civil law, but access to the condemnatory
forum offered by the criminal courts is controlled by officials by the
state. Second, state officials determine the terms of redress. They settle
on the appropriate level of culpability (intentionality, recklessness, and
negligence) for convicting an offender. And third, state officials alone
identify the appropriate punishment for commission of a public wrong.
The pure model doesn’t preclude the practice of punishment outside the
legal domain. Parental punishment remains acceptable, for instance,
though only for conduct classified as private.
Clearly, implementation of the pure model can lead to abuse—to
injustice in the name of criminal justice. This issue is investigated in
the book’s second section. For the moment, though, we should consider
variations on the pure criminal justice model as we trace the evolution
of Anglo-American grievance-redress.
Promoting Impartiality in the Complaint-Initiation Process.
Because early medieval law left it to victims to decide whether to com-
plain about injuries, it seems likely there were many grave incursions on
individual security under Anglo-Saxon kings that were not followed by
formal complaint. Victims are often reluctant to object to the behavior
of strong aggressors. Even when willing to complain, victims may back
down in the face of a powerful opponent. Because these are constants in
social life, it’s reasonable to suppose that Anglo-Saxon law did little to
ensure that victims’ complaints were systematically addressed.6
The Assize of Clarendon, convened by Henry II in 1166, took a crit-
ical step toward correcting this. Declaring that the King’s Peace (i.e.,
communal order) was at stake, rules adopted at the Assize made mem-
bers of the village responsible for identifying the perpetrators of illegal
acts. It did so by establishing what became known as the jury of accusa-
tion. This body didn’t actually preside over prosecutions of individuals
who had violated the King’s Peace. However, because it didn’t rely on
victim complaints, it overcame a key deficiency in earlier law by identi-
fying offenders even when those injured were unwilling to seek redress
64
W. C. Heffernan
on their own.7 If we assume (as is reasonable) that relatively weak mem-

bers of the community were more reluctant to seek redress than strong
ones, we can then say that the new procedure took a first step toward
ensuring protection for all of the king’s subjects.
Although the Assize of Clarendon reformed the process of com-
plaint-initiation, it left in place the system of ordeals that had been used
to resolve questions of guilt. Half a century later, the Fourth Lateran
Council, held in 1215, called for abolition of ordeals as well,8 with the
result that the English began to use the petit jury to determine ques-
tions of fact bearing on guilt. No royal decree mandated this. Rather,
trial by jury was a “makeshift expedient,” as one historian has put it, a
measure adopted to fill the gap left by termination of the ordeal.9 Over
the course of half a century, then, two profound changes occurred in
English law that inaugurated the trend toward criminal justice. Given
creation of the jury of accusation, the public took the lead in initiat-
ing charges about serious wrongdoing. Furthermore, guilt and inno-
cence were resolved by petit (i.e., trial) juries. Because injured parties
continued to prosecute cases (after the jury of accusation had brought
charges), the most that can be said is that institutional reforms of the
late Middle Ages signaled a change of direction. They established that
government would exercise more power in resolving grievances, though
they didn’t grant the power decisive power in this regard.
Three centuries later, legislative reforms sponsored by Queen Mary
injected government further into the criminal process. The new legis-
lation, adopted in 1555, directed justices of the peace to interrogate
accused parties and witnesses; it further directed to bind them over for
trial on finding sufficient evidence to do so. Justices of the peace were
not full-time representatives of the crown. But even though they weren’t
employed by the government, they extended royal power, for in con-
ducting interrogations they served as a bridge between the jury of accu-
sation and the trial jury.10
Nineteenth-century America took yet another step toward entrench-
ing government power. In the decades following the Civil War, most
states made the office of prosecutor a full-time position—and, in doing
so, those states accepted, largely as a matter of implied power, the
prosecutor’s decisive role in bringing criminal charges.11 Because the
65
prosecutor’s role in settling on charges has rarely been spelled out in leg-
islation, one has to turn to judicial opinions to understand the office’s
authority. Commenting generally on prosecutorial power, for instance,
the United States Supreme Court has stated that a “citizen lacks stand-
ing to contest the policies of the prosecuting authority when he himself
is neither prosecuted nor threatened with prosecution.”12 In comment-
ing on federal law, the Court has gone even further. The “[e]xecutive
branch has exclusive authority and absolute discretion,” it has remarked,
“to decide whether to prosecute a case.”13
This last comment is understandable in terms of the pure criminal
justice model, at least as far as the initiation of charges is concerned,
for it completely freezes out aggrieved parties from deciding whether
to lodge criminal charges. Many jurisdictions accord this kind of exclu-
sive authority to prosecutors. Some do not, however. Among the states,
Pennsylvania permits private parties to participate in prosecutions.14
As far as other countries are concerned, Great Britain allows this.15
Rather than speaking of exclusive power in this regard, then, we should
speak of a dominant prosecutorial power, for public prosecutors in the
United States and Great Britain now resolve most charging issues and
so serve as de facto gatekeepers to the criminal courts. They vindicate
the rights of injured parties, arguing (at least implicitly) on their behalf
while arguing explicitly on behalf of the state, with the result that crim-
inal cases are entitled People v. Jones and State v. Smith even though they
are concerned with violations of the security rights of parties not men-
tioned in the case titles.
It’s in this way that the criminal justice model reverses the priorities
of its retaliatory counterpart. The sense of grievance remains a constant;
so too does the underlying principle of negative reciprocity—i.e., bal-
ancing pain with further pain. Two features are novel, however. One is
that crime victims are to be taken as equals. Anglo-Saxon law relied on
a different assumption, it will be recalled. In drawing on the concept
of wergild, Anglo-Saxon jurists calibrated penalties in light of a victim’s
social status.16 This kind of calibration has of course disappeared from
criminal justice. Equality before the law has become the norm, in other
words. That norm may not always be honored (an issue examined in the
66
W. C. Heffernan
book’s section). Nonetheless, the law is committed, at least in principle,

to treating like cases alike.
The other novel feature of the criminal justice model worth noting
here is that the quest for redress is not undertaken by a resentful vic-
tim. Rather, it’s undertaken by an official committed to impartial eval-
uation of a grievance. Gate-keeping impartiality isn’t invariably assured:
we’re concerned here with an institutional commitment to impartial-
ity, not with its reality in practice. This said, it’s reasonable to suppose
that the indignation of a third party is more likely to be grounded in
concerns with fairness than is the resentment felt by an injured adver-
sary. Prosecutors filter the emotions of justice, in other words. They are
instruments of pain for pain, but they implement this at one remove
from the victim of an injury.
Moreover, modern prosecutors aren’t expected to act as mouthpieces
for victims, for prosecutors express indignation about an offender’s con-
duct only in those instances when they deem it appropriate to bring a
complaint. When confronted with a victim’s objection to a prosecutor’s
refusal to bring charges, modern courts have typically offered a systemic
justification for refusing to uphold the objection. Although prosecutors
may sometimes err, courts have noted, their record is generally sound,
for it’s preferable to let an unbiased agent of the state make a decision
about whether to initiate charges than to let a party aggrieved by injury
make this decision.17
Is this position sound? Should victims be prevented from pursuing
criminal complaints if prosecutors decline to bring charges? Questions
such as these challenge the foundations of criminal justice as it’s admin-
istered today, for it might be argued that the state’s virtual monopoly on
charging power undermines the just resolution of grievances by vesting
state officials with nearly exclusive power to determine whether a pros-
ecution will be brought for wrongdoing. A variation on the retaliation
model would be preferable, it could be argued, one that allows victims
to bring charges on their own if they believe prosecutors have failed to
pursue a case vigorously.
But this alternative suffers from even greater flaws than does the
criminal justice model. Granted, that model may leave some victims
dissatisfied. However, the alternative just sketched out makes it possible
67
for some victims—in particular, rich victims—to pursue cases venge-

fully so as to intimidate their adversaries. Given this distinct possibil-
ity, the allocation of discretion to prosecutors is surely preferable, for
its institutional emphasis on impartial decision-making contributes to
fairness in the grievance-resolution process.
Apart from this point, there is another reason to appreciate state
domination of grievance-redress, for the rise of state power over the
last 500 years seems clearly to have contributed to a decline in vio-
lence, in particular a decline in homicides. In recent years, criminolo-
gists have identified an unmistakable trend line in violent crime, one in
which English homicide rates have declined by more than 80% since
the 1400s.18 Needless to say, these results don’t establish that the con-
solidation of state power has contributed to a decline in homicides. It’s
possible, after all, that the increased legitimacy of the state has been crit-
ical here rather than the exercise of force by government officials—and
possible as well that change in mores have made it less acceptable for
people to rely on violence in settling disputes than was the case in ear-
lier times. Even these alternative explanations, however, rely indirectly
on the rise of the state, in particular on its transmission of norms that
discourage violence. It’s thus reasonable to conclude that the estab-
lishment of a central enforcement agency armed with nearly exclusive
power to bring charges for wrongdoing has contributed substantially to
the reduction in violence that’s occurred during the last 500 years.
Refining the Criteria of Culpability. As noted in the previous chap-
ter, Anglo-Saxon law implicitly relied on a distinction between con-
duct that is merely injurious and conduct that is actually culpable.19
Common law judges of the later Middle Ages explicitly embraced
this distinction. They thus endorsed a key premise of the criminal jus-
tice model: that culpable conduct which undermines communal peace
should be subject to criminal censure but that culpable which is pri-
marily the concern of the parties involved should be exempt from the
criminal sanction even if it is injurious. Late medieval jurists accepted,
in other words, the notion that wrongdoing which threatens the public
order must occur if criminal liability is to be imposed. On this analysis,
someone may be guilty of a crime even if she inflicts no harm as long as
her act could undermine communal peace (attempt liability is possible
68
W. C. Heffernan
in the absence of harm, for instance). Furthermore, on this formula-

tion, someone may be exempt from criminal liability even if she actually
harms another person (as in a case of justifiable use of deadly force).
It should come as no surprise that this subtle formulation of the cri-
teria of criminal liability wasn’t announced all at once by common law
judges. If the approach to this issue had been formulated in terms of a
variation on lex talionis (i.e., state officials will impose the same kind of
injury on an offender that a victim has suffered at the offender’s hands ),
a single statement might have sufficed. An approach that emphasized
culpability plus harm was announced in stages, however. The first, and
most important, step toward refinement was taken when crime and
tort began to be treated as separate categories. In classifying crimes as
offenses against the community, twelfth and thirteenth-century courts
rejected the private-law framework of grievance-redress characteristic of
Anglo-Saxon law. Unprovoked acts of violence have an immediate effect
on victims, late medieval judges can be understood to have said, but
they can’t be classified as merely personal wrongs. Because they affect
communal solidarity (i.e., “the King’s Peace”), they should be classified
as public wrongs (i.e., crimes), although they can also be classified as
private wrongs (i.e., torts).20 Adoption of this conception of crime as a
public wrong contributed to the emergent principle of equality before
the law, for while tort law places a monetary value on human life (and
so awards greater damages to a high-, as opposed to a low-, class vic-
tim), criminal law focuses on an equalizing factor—i.e., on the brute
fact that a human being’s right to personal security has been violated.
It’s for this reason that the Anglo-Saxon concept of wergild came to be
viewed as irrelevant in criminal law. Needless to say, social gradations
have continued to matter in the prosecution of crime. Nonetheless, the
potential for treating people equally is possible in any criminal code that
treats personal rights, not market value, as the informing consideration
for imposing liability.
Parliamentary legislation adopted in the fourteenth century affirmed
the importance of the crime/tort distinction. The legislation recognized
a new criminal category—misdemeanor—and classified it as something
subject to indictment.21 An overlap in subject matter continued to exist
between crime and tort, for each was concerned with acts that interfere
69
with basic individual rights, in particular with rights of personal secu-

rity. Thus, it was possible, once the crime/tort distinction emerged, to
commit a tort and by the very same act to commit a crime. This overlap
continues to exist today.
But while the subject matter of the two categories overlaps, the rem-
edies associated with each came to be recognized as distinct. Successful
tort actions generate compensatory damages for victims: they’re exer-
cises in private law in the straightforward sense that the victim of the
harm is their intended beneficiary. In contrast, successful criminal
actions lead to punishment of offenders: they’re exercises in public law
in that the victim receives nothing directly in return while the public
interest in vindicating security rights is satisfied through imposition of a
sanction. It’s this distinction that’s critical to the criminal justice model.
Indeed, the validity of the argument that criminal justice is a distinc-
tive subject for study hinges on the claim that a line can reasonably be
drawn separating crime and tort—that criminal justice is properly a
subject for state surrogacy and that tort is properly a concern of the pri-
vate party seeking it.
Once the crime/tort distinction was widely accepted, further refine-
ments were introduced into the concept of criminal responsibility. The
most important had to with the possibility of injury in the absence of
culpability. Anglo-Saxon law did not recognize a special category of
justifiable homicide. If someone killed another person while protect-
ing himself against that person’s use of deadly force, the defendant
convicted of the killing had to appeal to the crown for a pardon. Over
time, common law judges began to rely on the category of homicide
se defendo. In turning to this new category, common law courts held
that even if someone intentionally kills another person, the fact that
the killer acted in justifiable self-defense meant that he lacked the mal-
ice essential to establish criminal liability.22 It would be hard to over-
state the importance of this new category. In deploying it, common law
courts unequivocally rejected the strict liability principle implicit in lex
talionis—that is, they unmistakably repudiated the notion that injury is
sufficient in itself to justify punishment.
What about culpability in the absence of harm? The possibility of
criminal liability for unsuccessful attempts to inflict injury was a subject
70
W. C. Heffernan
often considered by early modern jurists. For example, Edward Coke

discussed this in his Third Institute, published in 1644.23 It was not
until 1784, however, that a criminal defendant was found guilty of an
act that did not result in harm to another person. At stake in Rex v.
Scofield, the case in which a court explicitly recognized the possibility of
criminal liability for an unsuccessful attempt, was a prosecution claim
that the defendant had intended to set fire to a house and had actually
taken steps to do so (despite the fact that no harm had ensued). The
court viewed the absence of harm as irrelevant. “The intent may make
an act, innocent in itself, criminal,” Lord Mansfield stated in the course
of upholding an indictment for attempted arson, “nor is the completion
of an act, criminal in itself, necessary to constitute criminality.”24
Mansfield might have gone further. He might have asserted that cul-
pability alone matters in determining criminal liability for an act that
has the potential to undermine public safety. He thus might have stated
that courts should ignore resulting harm and so impose the same pun-
ishment for attempts as for consummated acts. Had Mansfield taken
this position, he would have endorsed a key component of the crimi-
nal justice model—that culpability alone matters once it’s demonstrated
that someone attempts to commit a public wrong. Later judges and leg-
islators have also declined to take this position. They have adopted a
variation on the pure model, in other words, one in which culpability is
critical to the determination of criminal liability but in which resulting
harm is viewed as a further factor worth considering when meting out
punishment.
In the centuries that followed Scofield, English and American judges
further refined the criteria of culpability. Of particular importance was
the development of the insanity defense during the course of the nine-
teenth and twentieth centuries, a legal doctrine that exculpates defend-
ants who injure others when they are found incapable of distinguishing
right from wrong.25 Even before the insanity defense was adopted, how-
ever, the critical importance of culpability had become clear. Adoption
of the defense of justifiable homicide had made it possible for parties
to avoid punishment despite the harm they had brought about. And
Scofield’s endorsement of liability for an unsuccessful attempt had estab-
lished the reverse—the possibility of punishment for a culpable act that
71
produces no harm. Although strict liability (i.e., eligibility for pun-

ishment in the absence of culpability) is still accorded a minor role in
criminal law,26 this point is of peripheral importance and, in any event,
doesn’t undermine the generalization that culpability is a necessary con-
dition for felony liability in modern criminal law.
If we step back, we can draw a helpful distinction between harm,
dangerousness, and wrongdoing when thinking about culpability as a
precondition for the state’s exercise of its punitive power. Modern crim-
inal justice is centrally concerned with wrongdoing—with acts that
maliciously interfere with other people’s security rights while threat-
ening communal order. It’s also concerned with harm, though only
incidentally. That is, modern criminal justice addresses harm in the
context of addressing wrongdoing, but it allows for the possibility of
excusable harm (the insanity defense, for example), and it insists that
wrongdoing can occur in the absence of harm (attempt liability, for
example). Moreover, modern criminal justice addresses dangerousness
only obliquely. There is no doubt that many convicted defendants are
dangerous. The rationale for their punishment, however, is that they
have acted culpably; it is not because they are dangerous. A disposi-
tional fact—culpability—is at the core of modern criminal justice, in
other words. The harm generated by a defendant’s act and his/her future
dangerousness is by no means irrelevant considerations, but they’re
addressed in light of this core factor.
Punishment: From Equivalence to Proportionality. If culpability is
the central concern of criminal justice, what kind of punishment should
be imposed when someone unsuccessfully attempts to murder another
person? When someone negligently knocks out another person’s eye? Or
recklessly damages another person’s tooth? The retaliatory principle at
the heart of lex talionis is problematic in each of these instances—prob-
lematic not because it fails to generate a definite answer (on the con-
trary, the answer is clear in each case: no penalty against the offender
who unsuccessfully attempts to commit murder and equivalent pain
in the case of negligent and reckless assault), but problematic because
the focus is on results, not culpability. It’s hardly surprising, then, that
once culpability began to be treated as the organizing idea for resolving
grievances, the focus on equivalence disappeared almost entirely from
72
W. C. Heffernan
commentary on punishment. Proportionality came to the fore. In the

process, sanguinary punishments that did not aim at equivalence but
that nonetheless mutilated the body were also repudiated by judges
and legislators. The overarching principle of inflicting pain for pain
was preserved, but it was expressed in a way that no longer emphasized
equivalence.
Needless to say, the transition from equivalence to proportionality
unfolded gradually. Sanguinary punishments continued to be imposed
in England and America throughout the eighteenth and nineteenth cen-
turies. When Congress passed the Crime Act of 1790, for instance, it
mandated flogging as the sentence for larceny and corruption of judicial
records.27 Furthermore, public execution remained a common practice
in many American states during the course of the nineteenth century.28
These practices notwithstanding, a countertrend of lenity came to
matter more. Transportation—forced exile of convicts to another part
of the world—offered the English government a way to deal with con-
victed defendants without imposing sanguinary punishment (indeed,
settlement of the American colonies is attributable in part to the crown’s
reliance on a policy of transportation).29 Moreover, even if they weren’t
transported to other parts of the world, many convicted felons began to
be sentenced to prison and not to death.30 One of the first state consti-
tutions—that of Pennsylvania, adopted in 1776—signaled the impor-
tance of this new trend. “The penal laws as heretofore used shall be
reformed by the legislature of this state,” the Pennsylvania Constitution
declared, “as soon as they may be, and punishments made in some cases
less sanguinary.”31 The Vermont Constitution, adopted a year later,
followed suit,32 thus underscoring the importance of a trend, albeit
one that unfolded slowly, that disfavored the shedding of blood when
imposing punishment. As culpability came to be considered critical to
the determination of criminal liability, then, proportionality began to be
viewed as the appropriate guide to sentencing.
Two European authors whose works were widely read in the Anglo-
American world—Charles Louis de Secondat, Baron de Montesquieu,
and Cesare Beccaria—campaigned for the principle of proportional-
ity. “It is an essential point that there should be a certain proportion
in punishments,” Montesquieu contended in The Spirit of the Laws,
73
published in 1748, “because it is essential that a great crime should

be avoided rather than a smaller, and that which is more pernicious to
society rather than that which is less.”33 Writing 16 years later, Beccaria
adopted the same position. “[T]here ought to be a fixed proportion
between crime and punishment,” Beccaria stated. “Punishments should
be proportional among themselves to crimes, not only in their sever-
ity but also in the manner in which they are inflicted,” for only then,
Beccaria wrote, “will citizens acquire that sense of security which is just
….”34
How, though, can a proportionality criterion guide judges and leg-
islators when grading crimes? The answer is that such a criterion can
provide only general guidance: it can set a direction, but it can’t resolve
concrete cases. If treated as a general guide, a proportionality framework
calls on sentencers to take a retributive approach to punishment. It calls
on them, in other words to settle on the nexus between an offense and
its sanction—and so to impose a sentence that responds to the gravity
of a defendant’s wrongdoing. It also calls on them to reason in terms
of a rank-order of wrongdoing (Montesquieu, it will be recalled, states
that greater crimes should receive more severe sentences than lesser
ones). Unlike an equivalence criterion, however, one that relies on pro-
portionality can’t answer how much questions with respect to specific
offenses. Indeed, one of the issues on which Montesquieu and Beccaria
disagreed—the appropriateness of the death penalty—underscores this
point, for the former accepted capital punishment whereas the latter
rejected it.35 Each, in other words, endorsed a proportionality frame-
work while discussing gradations of punishment, but each applied his
framework in different ways.
If we step back, we can make sense of this new interest in proportion-
ality without fretting about the problems associated with its application.
Montesquieu and Beccaria, it seems clear, were not trying to introduce
a new criterion that would resolve the contestable judgment calls that
arise in trying to determine the exact amount of punishment appro-
priate for, say, assault or robbery. Rather, their aim was to reform the
practice of state-sponsored punishment by moving it in the direction of
lenity. In other words, they accepted the state’s decisive role in resolving
grievances. Neither one rejected the claim that punishment should be
74
W. C. Heffernan
imposed only for wrongdoing. Moreover, each accepted the transforma-

tion of the preceding centuries, a transformation that had accorded state
officials decisive power in administering penal justice.
Montesquieu and Beccaria weren’t prophets of a new order, in
other words. They were incrementalists: they wanted to tame state
power over grievance-redress without undermining the state’s central
role in presiding over this. The categories they employed—moderation
(Montesquieu)36 and mildness (Beccaria)37—suffer from the impreci-
sion characteristic of reform movements. The categories are suggestive
nonetheless since they point to the possibility of change. Like the provi-
sion in the Pennsylvania state constitution that called for a reduction in
sanguinary punishments, the arguments advanced by Montesquieu and
Beccaria point toward limitations on the pain-for-pain framework with-
out explaining exactly how much less should be imposed.
Once understood in this light, we can make sense of a key fea-
ture of the eighteenth-century program of penal reform advocated by
Montesquieu, a program implicitly endorsed in state constitutions
adopted in the 1770s in the wake of the American revolution. Although
Montesquieu and Beccaria used deterrence as a criterion for criticizing
existing penal practices, their reliance on the concept of proportional-
ity indicates that they didn’t appeal to deterrence at the expense of the
concept of deserved punishment—i.e., retribution. When they invoked
proportionality as a criterion for evaluating sentences, they were direct-
ing legislators to look back at past events—to match sanctions, as a
retributivist would, with acts of wrongdoing that have already occurred.
But in endorsing deterrence as a consideration pertinent to punishment,
they were also calling on sentencers to consider the future—that is, they
were encouraging sentencers to assess a sanction in terms of its potential
to discourage future behavior. Beccaria, in particular, has been identified
in popular thought with this forward-looking perspective, and because
he also emphasized that punishment can contribute to social stability
by deterring crime one might that he would even have accepted the
possibility of punishing the innocent when this contributes to general
deterrence. That is, if Beccaria is interpreted as advocating deterrence
as the sole justification for punishment, one might say that he endorsed,
at least by implication, the claim that it’s acceptable to punish the
75
innocent (i.e., acceptable to punish people in the absence of evidence that

they have engaged in wrongdoing ) provided this promotes social order.
Beccaria, however, never took so extreme a position. On the contrary,
because he stated that “there ought to be a fixed proportion between
crimes and punishments,”38 the best interpretation of his framework
is that he reasoned in terms of a retributive range of punishments, one
that treats deterrence as a pertinent consideration only after sentencers
have identified a retributive floor and ceiling for a wrongful act.39 On
this analysis, Beccaria’s approach is consistent with the eligibility for
punishment principle identified in Chapter 2, a principle that limits
punishment to acts of wrongdoing. But because it’s often unclear how
much punishment should be imposed for an offense, substantial leeway
is left to sentencers to entertain deterrence considerations when settling
on penalties. It’s this consensus position—government officials should
take both deterrence and retribution into account when sentencing, though
they should refrain, on retributive grounds, from setting punishments that
are manifestly disproportionate to the offenses for which they’re imposed—
that’s central to the criminal justice model. Modern practice begins with
this principle inherited from the past.
The Possibility of Taming State Power

Because criminal justice institutions emerged gradually, it’s impossible
to point to a single event in which their presuppositions were clearly
articulated. It’s for this reason that we’ve used a model to make sense of
an overabundance of factual detail. Three presuppositions are essential
to this model. The first is that each individual has a right to security of
his or her person. The second is that acts which culpably interfere with
the social order are eligible for punishment. And the third is that gov-
ernment may use its coercive power to punish such acts. One cannot
make sense of modern criminal justice without taking seriously each of
the points just made.
The third feature of the criminal justice model—government’s surro-
gacy role—can be analyzed in its “pure” and “diluted” form. According
to the former, malicious interference with the security rights of
76
W. C. Heffernan
members of the public is exclusively a state concern. Police investigate

claims of wrongdoing. Prosecutors are not influenced by complainants
in determining whether to bring charges. Other government officials
settle on verdicts of guilt or innocence. And corrections officers admin-
ister punishment. All this is done in the name of the public interest
(thus the importance of the claim that state officials act impartially as
surrogates of the public), but it’s done solely through reliance on offi-
cials’ exercise of discretion.
It’s because criminal justice tends to, but doesn’t completely, con-
form to this model that we also have to consider diluted versions of the
criminal justice model. Private parties sometimes conduct investiga-
tions on their own. They occasionally participate in prosecutions. They
often serve as fact-finders (i.e., jurors) in delivering verdicts of guilt or
innocence. As for the administration of legally mandated punishment,
though, this indeed is something carried out exclusively by government
officials.
On balance, then, modern criminal justice bears a substan-
tial (though not complete) resemblance to the pure criminal justice
model. Because there is a good reason to suppose that a strong govern-
ment contributes better to the protection of public security than the
weak governments characteristic of the early Middle Ages, the rise of
state can be said to have contributed to communal safety. Moreover,
because the severity of punishment has been reduced over the last two
hundred years, there is also good reason to say that the criminal jus-
tice is more closely associated with justice than the retaliatory model of
grievance-redress.
But even if it’s granted that the criminal justice model has improved
on the past, one has to add that further improvement is possible.
Indeed, the ideas that inform Montesquieu’s and Beccaria’s comments
on the law—the importance of lenity in punishment, the indispensa-
bility of a norm of equality before the law, and above all the minimi-
zation of degradation when imposing sanctions—are core components
of modern efforts to humanize criminal justice, so much so that mod-
ern movements can be said to have inherited not merely the sense
of urgency felt by eighteenth-century reformers but their agendas
as well. The tragedy of course is that the urgency remains relevant.
77
Beccaria’s punish only when absolutely necessary40 can still be invoked to

challenge the severe sentences imposed by American courts. Disparities
of treatment continue to be a matter of concern, though admittedly
the occasion for disparate treatment in modern criminal justice is not
attributable to distinctions explicitly recognized by the law (such as
those bearing on class and race) but instead to differences that are dis-
cernible in its modern-day application. And tragically, degradation con-
tinues to be a recurrent problem in contemporary corrections, racial
degradation in particular. Sad to say, then, the opportunities for making
criminal justice more just remain plentiful in today’s world.
These opportunities do not require challenging the core premises of
the criminal justice model. State domination of the grievance-redress
process is indeed defensible, both because it enhances collective security
and because it improves on the grievance-resolution process of earlier
times. The state alone has the resources to act as a powerful surrogate
for victims of aggression. A theory of criminal justice that fails to take
this into account is woefully incomplete. But a theory that fails to
press the state to perform its role better is also incomplete, for once it’s
granted that the state’s role is to resolve impartially claims about public
wrongs, it becomes reasonable to say that the state is open to criticism
on an ongoing basis for its shortcomings in this regard. The next section
considers this critique and also the steps that might be taken to make
justice a stronger component of criminal justice.
Notes
1. “Promessio Regis,” Sect. 1, 3, in A.J. Robertson, The Laws of the Kings
of England from Edmund to Henry I 143 (1925).
2. For discussion of this pledge, see Bruce O’Brien, God’s Peace and King’s
Peace: The Laws of Edward the Confessor 46 (1999).
3. For the full text of her oath, see Norman Bonney, Monarchy, Religion
and the State: Civil Religion in the United Kingdom 34 (2003).
4. For commentary on parallels between the premodern and modern
state, see George Steinmetz, “Culture and the State,” in State/Culture:
State Formation and the Cultural Turn (1999).
78
W. C. Heffernan
5. The emergence of the modern state in late medieval and Renaissance

Europe is examined in Gianfranco Poggi, The Development of the
Modern State: A Sociological Introduction (1978).
6. For discussion of the many features of Anglo-Saxon law that were
preserved by Norman and even Angevin kings, see John Langbein,
Renee Lerner, and Bruce Smith, A History of the Common Law: The
Development of Anglo-American Institutions 29–35 (2009).
7. Discussed in id. 35–37.
8. See Theodore Plucknett, A Concise History of the Common Law 118
(5th ed., 1956).
9. The term is Frederic Maitland’s. See his “Introduction,” Pleas of the
Crown for the County of Gloucester in 1221 xxxvi (1884).
10. For discussion of the Marian legislative reforms, see John Langbein,
Prosecuting Crime in the Renaissance: England, Germany, and France
5–21 (1974).
11. For discussion of the prosecutor’s position in American history, see
Carolyn Ramsey, “The Discretionary Power of ‘Public’ Prosecutors
in Historical Perspective,” 39 American Criminal Law Review 1309
(2002).
12. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
13. United States v. Nixon, 418 U.S. 683, 693 (1974).
14. See, e.g., 16 Pa. Cons. Stat. Sect. 1409 (the court “may direct any pri-
vate counsel employed by complainant to conduct the entire [criminal]
proceeding”).
15. For discussion of British law, see Juan Cardenas, “The Crime Victim
in the Prosecutorial Process,” 9 Harvard Journal of Law & Public Policy
357, 365 (1986).
16. For discussion of wergild, see Chapter 3, note 25 and accompanying
text.
17. For a judicial decision that rejects private prosecution on the ground
that this is “inherently and fundamentally unfair,” see State v.
Harrington, 534 S.W. 2d 44, 49 (Mo. 1976).
18. For a summary of findings concerning England, other parts of the British
Isles, and selected continental countries, see Manuel Eisner, “Long-Term
Historical Trends in Violent Crime,” 30 Crime & Justice 81 (2003).
19. See Chapter 3, note 18 and accompanying text.
20. For discussion of the distinction late medieval common law judges
began to draw between crime and tort (initially, through reliance on
different kinds of writs), see Plucknett, supra note 8, at 458.
79
1. For discussion of this legislative innovation, see id. 458–59.

2
22. See id. 444–45.
23. Edward Coke, Third Institute 69 (1644).
24. Rex v. Scofield, Cald. 397, 400 (1784).
25. The insanity defense was first recognized in Regina v. M’Naghten, 8
Eng. Rep. 718 (1843).
26. The Model Penal Code, for instance, limits strict liability, in most
instances, to violations, the lowest level of criminal offenses. See Model
Penal Code Sect. 2.05.
27. Crimes Act of 1790, 1 Stat. 112.
28. For discussion of continued reliance on public execution in nineteenth
century America, see Stuart Banner, The Death Penalty: An American
History, Chapter 6 (2002).
29. For discussion of British authorities’ adoption of transportation as

an alternative to the death penalty, see J.M. Beattie, Policing and
Punishment in London, 1660–1750: Urban Crisis and the Limits of
Terror 438 (2001).
30. Pieter Spierenberg documents this trend in The Spectacle of Suffering
and the Evolution of Repression: From a Preindustrial Metropolis to the
European Experience (1984).
31. Pa. Constitution of 1776, Art. II, Sect. 38.
32. Vt. Constitution of 1777, Art. II, Sect. 35.
33. Charles Louis de Secondat, Baron de Montesquieu, The Spirit of the
Laws [1748], Book VI, Chapter 16, at 161 (David Carruthers, trans.
1977).
34. Cesare Beccaria, An Essay on Crime and Punishment [1764], Chapter 6,
at 28–29 (trans. not identified), at www.thefederalistpapers.org.
35. For Montesquieu, see Spirit, supra note 33, at Book XV, Chapter 2, at
260. For Beccaria, see Essay, supra note 34, at Chapter 28, at 37–39.
36. Spirit, supra note 33, Book XXIX, Chapter 1, at 373.
37. Essay, supra note 34, Chapter 27 (“Of the Mildness of Punishments”).
38. Id., Chapter 6, at 28–29.
39. Some commentators have (insightfully) commented on this point.

For example, Thomas Winfree and Howard Abadinsky state, in the
course of summarizing Becaria’s theories: “Accordingly, the purpose
of the law is not simply retribution but also deterrence.” Essentials of
Criminological Theory 22 (4th ed., 2016).
40. Essay, supra note 34, Chapter 2, at 9.
Part II
Taming the Power of the State
5
Decriminalization
A strong government is needed to promote justice. Weak political

institutions are unable to ensure personal security—and because pro-
tecting each person’s security is a precondition for implementing jus-
tice in everyday life, the possibility of just governance is, at a minimum,
compromised by weak institutions and may even become unattainable.
But strong institutions can impose a steep price as well. Once power is
concentrated in an effective enforcement agency, government can exer-
cise its will one-sidedly. That is, even though a strong government can
serve as a surrogate for the public, it can disregard the constraints essen-
tial to the just imposition of punishment. When this happens, power is
pathologized. Power is exercised in the name of public safety, but gov-
ernment officials act in ways that are incompatible with the principles
essential to criminal justice. If the state is to serve as a representative of
all members of the public, it must honor these principles while also pro-
tecting public safety.
What role does a constitution play in protecting against the heavy-
handed exercise of government power? When a constitution contains
a bill of rights which is subject to frequent judicial interpretation, this
combination (bill of rights plus routine judicial review) can serve as a
substantial counterbalance against the pathologies of power. Even this
https://doi.org/10.1007/978-3-030-12782-4_5
84
W. C. Heffernan
may be insufficient, however. Gaps are possible, sometimes because a

constitutional text is silent on a given subject, sometimes because it’s
interpreted in such a way as to open the door to the heavy-handed exer-
cise of state power. It’s because this is so that we need to invoke consid-
erations of justice to challenge state power in settings where constitutional
limitations have not been placed on the state.
The four chapters that comprise the second half of the book consider
settings in which these gaps exist. They are concerned, in other words,
with measures designed to tame state power in the interest of justice
where constitutional law is silent. This chapter considers a particularly
serious kind of constitutional silence: the text’s failure to address the
possibility of imposing punishment on someone who hasn’t harmed, or
even attempted to harm, another person. At one time, criminal law was
routinely used for this purpose. People were punished for traveling on
the Sabbath.1 Possession of alcohol was a criminal offense.2 Consensual
sodomy was also a crime.3
The state no longer criminalizes any of these activities. But drug pos-
session remains a crime throughout most of America. Indeed, because
half the inmates in federal prisons are serving time for drug-possession
offenses of one kind or another,4 it’s clear that a critique of criminal leg-
islation pertaining to this is of practical, not merely theoretical, inter-
est. In developing this critique, we should begin with the elementary
point that the state’s power to punish must be limited to cases involving
wrongdoing. Later chapters in this section examine remedies for taming
the state’s exercise of power when wrongdoing has actually occurred. It’s
essential, though, to begin with something even more basic: with the
principle that forbids state-imposed punishment for acts that do not
involve wrongdoing.
The Eligibility Principle and Decriminalization

In Chapter 2, a straightforward proposition was introduced concerning
eligibility for punishment:
Eligibility for Punishment. It is impermissible to impose punishment
except for acts that maliciously interfere with the security interests of others.
5 Decriminalization
85
This principle is understandable in terms of punishment’s unique

characteristic: its status as a condemnatory deprivation, one in which
a cherished good (typically, freedom of movement) is denied follow-
ing criticism for having violated another person’s rights. Punishment
is warranted for any number of wrongful acts, not merely for physical
interference with the security interests of others (rape and murder, for
example) but also for nonviolent acts such as fraudulent misrepresenta-
tion, tax evasion, treason, and extortion. Punishment is not warranted,
however, for acts in which someone harms only him/herself. Pity may
be in order here. Medical treatment—even forcible treatment—may
also be in order. Condemnation is unwarranted, however: this should be
reserved for acts that interfere with the rights of others.
These points are compatible with the principle concerning eligi-
bility for punishment. In applying that principle, one can see why it’s
wrong—wrong as a matter of justice—for the state to punish adults
who engage in acts harmful only to themselves. These acts include:
smoking, surfing, bear-wrestling, shark-hunting, rock-climbing, sky-
diving, deep-sea diving, hang-gliding, flame-juggling, and marathon-
running, to name only a few. Some of these activities are deemed
admirable, some lamentable. Their connecting link is that all are man-
ifestly risky to those who engage in them. Yet despite the risk of harm-
to-self posed by each one, none is subject to criminal prohibition.
Might the state punish, say, smoking or hang-gliding consistently
with the principle of legality noted in Chapter 2? That principle limits
state-imposed punishment to activities that have been declared crimi-
nal consistently with the Constitution’s prescription of the procedures
for adopting legislation. Someone might thus argue that drug possession
actually may be criminalized as long as the statute prohibiting it has
been adopted in accordance with the legislative procedures set by the
Constitution (majority vote by each house of Congress plus signature
by the President).
This line of reasoning is unsatisfactory, though. It would allow for
criminalization of any act not expressly prohibited in the Constitution—
criminalization of driving, for example, or of wood-chopping (subjects
also not mentioned in the Bill of Rights). The better approach is to
return to the eligibility principle also outlined in Chapter 2. Under that
86
W. C. Heffernan
principle, someone is eligible for punishment only if he/she has engaged

in conduct that maliciously interferes (or attempts to interfere) with
the rights of others. This principle places limits on the legality princi-
ple. Under the legality principle, the state must announce which acts are
subject to punishment. But the legality principle is insufficient by itself
to ensure justice. The eligibility principle is essential as well, for some
acts not mentioned in the Constitution must also be exempt from state
criminalization if the principles of justice are to be honored. Smoking
and sky-diving are among these. So too is drug possession.
The remarks contained in this chapter are concerned not merely with
drug possession but also with two activities that actually have been
punished (at least indirectly) by the state: alcohol and drug consump-
tion. The fact that alcohol and drug consumption haven’t been directly
punished need not concern us here, for in each instance the legal pro-
hibition on possession functions as a stand-in for consumption (since
possession is a prerequisite to consumption). In the syllogism proposed
below,5 which draws on the limiting principle for punishment, posses-
sion is the topic for analysis, but of course prohibition is sanctioned as a
way to address consumption:
Major Premise The state may punish only those acts that wrongfully harm,
or attempt to harm, other people.
Minor Premise Although possession of alcohol and drugs can harm the
person who engages in these acts, consumption of these substances does
not harm others.
Conclusion The state may not punish someone for possessing alcohol or
drugs.
The Eligibility Principle’s Ramifications

The syllogism establishes a presumption against criminalization of the
possession of alcohol and drugs. It does no more than this. It doesn’t
conclusively establish that criminal statutes concerning possession
5 Decriminalization
87
of these substances are impermissible as a matter of justice. This is

because the consumption of drugs (like the consumption of alcohol)
can increase the risk of harm to others. Alcohol and drug consumption
increases the odds of accidents when people are driving cars, piloting
planes, or working on construction sites (to note some obvious exam-
ples involving hazardous activities), so it’s reasonable for the state to test
for consumption of these substances in the context of such activities.
It’s also reasonable for the state to regulate the sale of alcohol and drugs
(and so to criminalize acts that violate regulatory statutes), for otherwise
children could get hold of these substances. The presumption against
criminalization can be rebutted, then. In particular, it can be rebutted
to shore up a regulatory scheme that takes reasonable measures to pre-
vent harm to others.
The presumption allows for more than regulation-promoting pro-
hibitions, however. It also calls for inquiry into the possibility that
particularly potent substances should be prohibited because their con-
sumption might trigger imminent harm to others. Relying on the pre-
sumption, one thus has to consider the possibility that possession of
some drugs may be criminalized, not because these drugs will harm
those who consume them but because their ingestion will provoke
aggressive behavior toward others. This section considers both issues.
It begins by examining the criminal prohibitions essential to a regula-
tory regime for drugs. It then turns to the harm-to-others issue.
Criminal Prohibitions That Support a Regulatory Regime. In
1933, after it became legal once again to sell alcohol to adults, crimi-
nal laws were adopted that provided enforcement tools for a regulatory
regime that would govern the sale and distribution of intoxicating bev-
erages.6 Criminal sanctions had three functions in this context. First,
even though adults were allowed to possess alcohol, they could be pun-
ished for alcohol-related activities that might harm others (drunk driv-
ing remained an offense, for instance). Second, certain classes of people
(minors, for example) continued to be barred from possessing (or pur-
chasing) alcohol. And third, the state-regulated stores that sold alcohol.
A drug-regulation regime reliant on criminal prohibitions could adhere
to this model while continuing to honor the presumption stated in the
syllogism’s conclusion. Indeed, because the more than half dozen states
88
W. C. Heffernan
that now permit people to possess marijuana for recreational purposes

have adopted the regulatory regime just outlined, one need only say that
a framework is already in place to facilitate drug regulation.
Prophylactic Criminal Legislation. Because the presumption in
favor of decriminalization allows government to adopt rules to prevent
harm to others, it’s compatible with prophylactic criminal laws—i.e.,
with laws that criminalize behavior that is accompanied by a substan-
tial, though less than certain, risk of harming others. In speaking of a
substantial risk, someone relies on a term that’s subject to gradations.
The gradations are sufficiently hard to calibrate that it would be wise, in
order to protect people against the injustice of being targeted merely for
consuming drugs, to limit government power to those instances where
individuals engage in hazardous activities that are highly likely to harm
others. Drunk-driving laws are illustrative in this context. Government
power can’t properly be used to arrest someone merely because she’s
drunk in her own home. It can, however, be used to detain someone
who may be driving while under the influence of alcohol. Indeed, it can
be used not merely to detain speeding drivers but also erratic ones. By
parity of reasoning, erratic driving can be a predicate for investigatory
stops of drivers for drug consumption.
The marijuana-decriminalization laws adopted by states such as
Colorado and Washington are understandable in terms of this frame-
work. In decriminalizing the possession of small amounts of marijuana,
Colorado and Washington now refrain from punishing marijuana pos-
session per se. They do, however, punish people who engage in a hazard-
ous activity (i.e., driving) while consuming a mind-altering substance.7
Legal Paternalism for Minors. The presumption against criminali-
zation casts doubt on the validity of drug-possession laws as applied to
adults. Adults must be permitted to harm themselves, it holds, even if
their behavior brings on mental or physical deterioration. Cigarette-
smoking, it’s now widely understood, will harm the lungs. Alcohol
consumption will harm the liver. Drugs are known to harm numerous
bodily organs, the brain included.
These are points adults should bear in mind. It’s reasonable, though,
for the state not merely to alert adolescents to the kinds of harm just
mentioned but also to adopt laws that prohibit them from possessing
5 Decriminalization
89
cigarettes, alcohol, and drugs. Adolescents haven’t the maturity to assess

the risk posed by these harmful substances. Because they don’t, the state
has an enhanced surrogacy role to play as far as minors are concerned. It
properly protects them from themselves, but it cannot properly play this
role as far as adults are concerned.8
Criminal Legislation in Support of Government Oversight of
Commercial Outlets. Criminal prohibitions may also facilitate govern-
ment supervision of the sale and distribution of drugs. As in the previ-
ous cases, alcohol serves as the model here. Every state licenses alcohol
distributors. In doing so, states subject retail outlets to intrusive forms
of inspection. The government also requires clear labels on the contents
of the items being sold—and so establishes a framework of legal liability
that can be imposed on firms that deceive consumers. This kind of over-
sight would be unacceptable for items that aren’t dangerous. It’s very
much in order, however, for risky substances such as drugs and alcohol.
Criminal Legislation Prohibiting the use of Performance-
Enhancing Drugs by Athletes. On this point, alcohol regulation can’t
serve as a model, for consumption of any kind of alcohol is likely to
undermine competitive performance whereas certain types of drugs can
enhance it. The harm-to-others problem here centers not on a physical
incursion on someone else’s well-being but on compromising the terms
of fair competition. Because this kind of competition is a facet of just
communal life, the state performs a legitimate surrogacy role in punish-
ing those who act deceptively by taking performance-enhancing drugs.
Indeed, cheating in an athletic contest is a particularly clear-cut assault
on the reciprocity essential to communal life.
Possible Prohibitions Beyond Those Essential to Regulation. What
about further prohibitions? In particular, should possession of particu-
larly potent drugs be criminally prohibited? In posing this question,
someone can concede the presumption against criminalization—that
is, a person can concede that criminal prohibitions against drug pos-
session and consumption are incompatible with the surrogacy concep-
tion of criminal justice if their aim is to protect people from themselves,
but the questioner can ask whether potent drugs should be banned
because of the harm to others they might bring about when ingested. A
different question merits consideration as well, though, for it might be
90
W. C. Heffernan
asked whether a prohibition is warranted for a drug that poses a risk of

imminent death or paralysis to the person ingesting it. This question, it
should be noted, is concerned with harm-to-self, not harm-to-others.9
In posing it, someone casts doubt on the presumption itself—that is,
the questioner suggests there are certain substances that are so danger-
ous to the people who consume them that the law should protect peo-
ple from themselves. The two questions posed here thus straddle the
harm-to-others/harm-to-self divide, but they do so by focusing on par-
ticularly powerful drugs, not on drugs in general.
Think first about harm to others. Once it’s granted that a risk of
this kind might serve as a justification for criminalizing possession of
a substance, questions about the legitimacy of banning potent drugs
cannot be avoided. Such questions shouldn’t be posed in a vacuum,
however. Alcohol-consumption can be a psychopharmacological cata-
lyst to aggression, as when people quarrel after heavy drinking. It might
be argued that the commonness of alcohol-induced violence justifies
criminal justifies its prohibition, but if this option is rejected (as it was
when the Constitution was amended to repeal the earlier Prohibition
amendment), the question arises as to why drugs should be treated
differently.
A proponent of criminal prohibition of drug possession might argue
that alcohol is a weaker catalyst to violence. Drugs, this proponent
might contend, are more likely to provoke violence and so should be
banned altogether whereas alcohol should be subject to the kind of
regulatory regime outlined earlier. The experience of the last century
doesn’t support this claim, however. Because recreational marijuana
is legally available in a number of states and foreign countries, there
is strong evidence that its consumption does not provoke violence.
Furthermore, because some countries have decriminalized stronger
drugs—in particular, cocaine and heroin—there is credible evidence
that they, too, aren’t catalysts to violence to the degree that alcohol is. If
alcohol is acceptable as a recreational substance, in other words, there’s
a good reason to believe that standard recreational drugs (marijuana,
cocaine, and heroin) should be treated similarly. One prominent drug
researcher, Robert MacCoun, has put the point this way: “Alcohol is a
drug, and it stimulates, or augments, a great deal of criminal behavior,
5 Decriminalization
91
almost certainly more than the street drugs [i.e., marijuana, cocaine,
and heroin] combined.”10
This point doesn’t address the risk posed by more exotic drugs, how-
ever. It’s conceivable, for instance, that a drug might be produced that
immediately triggers violent behavior on the part of the person con-
suming it. If such a drug were ever to exist, the presumption against
criminalization would have to be set aside. Just as the state performs
its surrogacy role properly by prohibiting people from owning weap-
ons that substantially endanger public safety, it would perform that role
properly by banning the possession of drugs that would turn those con-
suming them into human bullets.
Now turn to the possibility of harm-to-self. In thinking about this,
we should assume that a regulatory regime would succeed in hav-
ing every recreational drug properly labeled before being sold in
government-supervised outlets. (Incorrect, or even misleading, labeling
would of course be subject to criminal penalties.) If this labeling regime
is effective, consumers would understand that ingestion of a drug could
have an immediate, and possibly very serious, effect on their cognitive
and physical capabilities. We thus should consider the possibility pro-
hibiting drugs—L.S.D., for example, or Salvinorin A—not because of
the harm to others their consumption might bring about but because of
the harm they might bring about to those consuming them. If a crimi-
nal prohibition were endorsed on this ground, one would have to reject
the presumption altogether. Instead, one would affirm, though in a lim-
ited range of cases, the argument that the state may properly use the
threat of punishment to save people from the impulses that might lead
them to harm themselves.
But why take this step? Why say that the state may properly pun-
ish people for the harm they might do to themselves? A different
approach is preferable. It is to say that the state may never condemn
someone who is merely harming himself, for while self-harm may be
lamentable, even pathetic, it can’t reasonably be classified as wrongful.
In adopting this position, one doesn’t reject the possibility of preven-
tive confinement: one doesn’t, in other words, reject deprivation without
condemnation. The involuntary commitment option is already availa-
ble in some jurisdictions.11 In taking this approach, one holds out the
92
W. C. Heffernan
possibility of treatment while reserving punishment for those acts that

threaten communal peace.
In authorizing preventive detention, the state uses its coercive power
to protect people from themselves. There are risks to liberty associated
with treating drug- (or alcohol-) consumption as a public health mat-
ter subject to involuntary confinement, for individual freedom is so pre-
cious that wariness is in order even when condemnation is eliminated
from the state’s exercise of power. Nonetheless, it may well be justifia-
ble on rare occasions to confine someone for his or her own good. This
argument, it should be emphasized, is pertinent only to civil commit-
ment, not to a contingent threat of criminal condemnation. It thus does
not sanction the use of drug courts, for these rely not only on the state’s
coercive power to send drug users to treatment programs but also rely
on a conditional threat of condemnation and deprivation if an addict
fails to complete a treatment program successfully.12 Rather, the qual-
ified endorsement of legal paternalism offered here is limited to invol-
untary civil commitment. This kind of legal paternalism, it can readily
be conceded, may be necessary to restrain people against their most
self-destructive impulses provided the state exercises its power rarely and
cautiously.
As in the case of alcohol, though, few drug users reach this extreme.
And, in any event, those who experience substantial mental or physi-
cal deterioration as a result of drug consumption can’t be said to have
done anything wrong to others, so the state abuses its power when it
sentences people to prison for this. Because this abuse of power is
common—because thousands of people are currently sent to prison for
long periods of time—the state’s exercise of power over consumers of
drugs is a glaring injustice. The time has come to rethink the exercise of
government authority in this context—and so to harmonize drug policy
with the policy already in place for alcohol consumption.
Notes
1. See, e.g., Stephen Miller, The Peculiar Life of Sundays, Chapter 1
(2008).
5 Decriminalization
93
2. The 18th Amendment to the United States Constitution, ratified in

1919, prohibited “the manufacture, sale, or transportation of intox-
icating liquors” and authorized Congress to enforce this prohibition
by appropriate legislation. The 21st Amendment, ratified in 1933,
repealed the 18th Amendment.
3. In upholding the constitutionality of a state criminal prohibition of
sodomy, the Court noted in Bowers v. Hardwick, 478 U.S. 186, 192
(1986), that “[s]odomy was a criminal offense at common law, and was
forbidden by the laws of all the original States when they ratified the
Bill of Rights.” Bowers was overruled in Lawrence v. Texas, 539 U.S. 558
(2003), but the Lawrence Court did not challenge the historical accu-
racy Bowers’s comment on the pervasiveness of eighteenth and nine-
teenth century criminal prohibitions on sodomy.
4. See The Sentencing Project, Fact Sheet: Trends in U.S. Corrections 2
“State & Prison Population by Offense, 2015,” at www.sentencingpro-
ject.org (noting that, as of December 2015, 49.5% of federal inmates
were serving terms for drug offenses).
5. The major premise in the syllogism proposed in this chapter depends
on the claim that it’s unacceptable, as a matter of justice, to punish
someone who engages in an activity that harms only him/herself. It
does not depend on the further argument that each person has a right
to use his/her body in any way he/she wishes. In this respect, the argu-
ment presented here is consistent with, and depends on, the insight-
ful challenges to the criminalization of drug possession advanced in
Douglas Husak, Legalize This! The Case for Decriminalizing Drugs
(2002). See in particular Husak’s statement that “[a]arguments against
criminalization need not accept the libertarian claim—that we have a
right to decide what substances to put into our bodies.” Id. at 61.
6. For analysis of post-Prohibition criminal regulation of the sale of alco-
hol, see Daniel Okrent, Last Call: The Rise and Fall of Prohibition,
Chapters 19–21 (2010).
7. For Colorado’s regulatory scheme, see Colorado Department of Public
Safety, Marijuana Legalization: Early Findings (2015), at www.epsdocs.
state.co.us/Scripts. For Washington’s scheme, see Washington State
Office of Financial Management, Forecasting and Research Division,
Monitoring Impacts of Recreational Marijuana (2015), at www.ofm.
wa.gov/reports/marijuana_impacts_update_2015.
8. The points just made are consistent with John Stuart Mill’s argument
in On Liberty (1859) about the proper scope of the exercise of state
94
W. C. Heffernan
authority. In particular, they are consistent with his defense of a limited

role for legal paternalism.
9. The distinction between harm-to-self and harm-to-others is essential to
Joel Feinberg’s books that examine the ramifications of Mill’s argument
in On Liberty. See Feinberg, Harm to Others: The Moral Limits of the
Criminal Law (vol. 1) (1984) and Harm to Self: The Moral Limits of the
Criminal Law (vol. 3) (1986). The framework employed throughout
the remainder of the chapter is compatible with the one proposed by
Feinberg.
10. Robert MacCoun, Beau Kilmer, and Peter Reuter, “Research on

Drugs-Crime Linkage: The Next Generation,” National Institute of
Justice: Special Report 65–66 (July 2003).
11. See, e.g., Florida’s involuntary civil commitment scheme for drugs and
alcohol. Fl. Stat. Ann. Sects. 397.301 to 301.998.
12. Although drug courts divert users from the criminal justice system,
they do so only conditionally, for “in cases where fail to meet the con-
ditions of the drug court (such as habitual recurrence of drug use), they
will be returned to criminal court for sentencing on the guilty plea.”
Ryan King and Joan Petersilia, Drug Courts: A Review of the Evidence 3
(2009). Needless to say, a conditional threat of punishment for harm-
to-self is preferable to an unconditional threat. As a matter of justice,
though, no threat is warranted.
6
Policing the Police
If justice requires the decriminalization of drug offenses, what m

easures
does it require for offenses that involve harm to others? Preventing
one person from injuring another is the standard concern of criminal
justice, so it might be said that the previous chapter was a detour from
the critical questions that arise about taming state power. Those ques-
tions center on a trade-off, one in which the state’s power to interfere
with individual freedom is weighed against the benefits it confers by
protecting people from harm. The trade-off matters because the state
can ruin lives while promoting public safety. For instance, the state has
the resources to conduct dragnet searches for violent criminals—and so
can detain hundreds of innocent suspects in the course of arresting a
genuine criminal. Similarly, it can prosecute numerous people who have
not committed crimes in order to secure the conviction of one who is
actually guilty of a crime. And most important of all, the state has the
resources to impose draconian punishments on those who’ve wronged
others. It can impose disproportionate sentences. It can single out
minorities for unequal treatment. It can operate prisons with hellish
conditions. And it can systematically degrade convicts, thereby adding
inhumanity to the denial of liberty.

https://doi.org/10.1007/978-3-030-12782-4_6
96
W. C. Heffernan
Each of these examples is concerned with a function the state ought

to perform. Each, however, is concerned with improper performance of
this function, for important as it is to have an enforcement agency that
vindicates the security interests of the public at large, it’s also important
to restrain officials of that agency as they go about their jobs.
It might be argued that there is no need to comment from the
perspective of justice on the matters mentioned above given the many
provisions of the United States Constitution that seek to restrain the
government’s exercise of power. The Fourth Amendment, for exam-
ple, places limits on the government’s investigative authority through
its prohibition of unreasonable searches and seizures. The Fifth
Amendment guards against the exercise of force in securing confes-
sions. The Sixth Amendment guarantees a right to trial by jury. And
the Eighth Amendment prohibits cruel and unusual punishments.
Taken together, these provisions of the Bill of Rights, when considered
in conjunction with other portions of the constitutional text, make it
unnecessary to appeal to justice when thinking about state power, some-
one might contend. Because the Constitution itself aims at taming the
power of the state, it could be contended, it’s superfluous to invoke con-
siderations of justice when thinking about the restraints essential to the
fair investigation of crime and the punishment of offenders.
But the Constitution doesn’t guard against every possible miscarriage
of justice. There are two reasons why it falls short in this respect. One
has to do with matters it doesn’t mention. The text says nothing about
privacy, for instance, so the Constitution has only an indirect bearing
on matters related to a person’s control over the informational traces of
his life or on freedom from surveillance in public places. The second rea-
son has to do with its vague specification of the rights it actually does
mention, for even when the Bill of Rights directly addresses a matter
essential to justice—as it does, for example, by prohibiting cruel and
unusual punishments—its words are so indefinite that they can be inter-
preted in such a way as to leave state power largely untamed. Each of
these problems contributes to a justice deficit—to a failure to promote
criminal justice even when interpreters claim to honor the Constitution’s
terms. Judges called on to interpret the Eighth Amendment punish-
ments clause, for example, have often refrained from applying it to the
6 Policing the Police
97
brutal conditions of American prisons.1 Similarly, given the vagueness of

the equal protection guarantee, judges have rarely used it to reduce racial
disparities in sentencing.2 To note these points isn’t to suggest that the
Constitution, as interpreted by the courts, plays no role in disciplining
the state. On the contrary, it often contributes to this. It’s essential to
add, though, that there are important restraints on the state that have to
be considered beyond constitutional law.
This chapter proposes two restraints on police power. Each pro-
posal—one has to do with stops and frisks, the other with the possibil-
ity of pervasive surveillance—is concerned with a requirement of justice
that (at least currently) is not constitutionally mandated. Needless to
say, stop and frisk is a topic routinely examined in Fourth Amendment
case law. But the chapter’s first section does not focus on the specific
rules courts have formulated for conducting stops and frisks. Rather, it
is concerned with decisions made by mayors and police chiefs concern-
ing the volume of these interventions; in particular, it’s concerned with
the cumulative weight of state power when the police flood neighbor-
hoods (by making aggressive use of their stop-and-frisk authority) while
trying to root out crime. The chapter’s second section also takes up the
theme of justice-beyond-the-Constitution, this time by examining the
state’s power to conduct surveillance of behavior in public places. It’s
possible that statutory or constitutional guidance will eventually be
adopted that limits police surveillance power in public places. At pres-
ent, though, the state is subject to no significant legal restraint as to its
surveillance power in public places. In thinking about the state’s power
in this context, we thus have an opportunity to move beyond legislation
as well as judicial interpretation of the Constitution and to focus on the
restraint the state owes its citizens as a matter of justice while its agents
investigate crime.
Stop and Frisk
The Fourth Amendment establishes a threshold for police intervention
in private life. In speaking of the “right of the people to be secure in
their persons, houses, papers, and effects against unreasonable searches
98
W. C. Heffernan
and seizures,” it takes a critical first step toward taming the power of the
state. It does so by identifying freedom of movement (and thus freedom
from police intervention in one’s personal affairs) as the default posi-
tion of daily life: this of course is the significance of a prohibition of
unreasonable seizures of the person. Absent a particularized suspicion of
some kind (that is, evidence that someone has engaged in or is about to
engage in a criminal act), there is a constitutional presumption against
state intervention in a person’s conduct of his or her life. A presumption
of this kind limits state power. It treats individual liberty as the basic
framework for thinking about state power—and so treats the exercise
of state power to detain a suspect as an exception that’s justified only
under unusual circumstances.
The Supreme Court’s decision in Terry v. Ohio, a 1968 case, is com-
patible with these points. At stake in Terry were constitutional questions
about the legitimacy of two different kinds of intrusions on personal
life: first, a question about the legitimacy of a brief detention in a pub-
lic place and second (assuming the legitimacy of such a detention), a
further question the legitimacy of a frisk of a detained suspect’s outer
clothing to check for weapons. Both questions were pertinent to the
Terry facts. After observing John Terry and another man walk back and
forth many times in front of a store located in downtown Cleveland,
Officer Martin McFadden, one of the city’s plainclothes detectives,
approached them and asked them to identify themselves. When Terry
failed to respond quickly, McFadden took hold of him, ran his hands
over his outer clothing, and (on feeling a hard object under Terry’s
clothing) went underneath the outer layers of his clothes and discovered
that Terry was carrying a gun.3
In challenging the criminal charge brought against him for possession
of an illegal weapon, Terry argued that the gun McFadden discovered
had been taken during the course of an improper stop and frisk—and
Terry therefore argued that the gun should not have been admitted in
evidence against him. Probable cause is the proper Fourth Amendment
threshold for interfering with a person’s freedom of movement, Terry
contended. Because McFadden didn’t have probable cause to believe
that Terry had violated the law, Terry argued, the gun was improperly
discovered and so should have been suppressed as evidence.
99
Terry’s argument was by no means frivolous. Indeed, it was consistent

with original understandings of the Fourth Amendment.4 Nonetheless,
the Court rejected it. In doing so, the Court reduced the threshold for
intervening in a citizen’s private affairs. Whereas probable cause had
previously been understood to set the standard for detaining someone,
Terry held that someone may be detained on the basis of reasonable
suspicion, a threshold (which is lower than probable cause, the Court
emphasized) that allows for state termination of someone’s freedom of
movement when objective facts exist to show that a person is about to
commit, is already committing, or has committed a crime. This thresh-
old is higher than a mere hunch. But because the threshold is lower
than probable cause, it allows for state intervention in personal affairs
even if it is less likely than not that criminal activity is afoot. Moreover,
because officers must protect themselves while investigating the possibil-
ity of crime, Terry held, they may also frisk suspects and so intrude on
private places (pockets and purses, for example) on feeling objects that
may be weapons.5
It might be argued that the Court erred in taking this position
(indeed, Justice Douglas suggested, in his Terry dissent, that the reduced
threshold threatened individual liberty by granting the police too much
power6). As against Douglas, though, it might be said that an insistence
on probable cause as the threshold for a brief intervention goes too far
in the other direction, for it might be said that the police ought to have
the authority, given their role as surrogates for the public, to investigate
crimes before they happen (and so to enhance overall safety). Terry’s new
threshold merits only a qualified endorsement, then. On the one hand,
it has to be granted that the Court’s decision in the case moved the nee-
dle substantially in favor of state power. On the other hand, it has to be
added that because it did alter the state/citizen balance in favor of the
former, citizens should be able to demand restraint from state officials as
they exercise their power to detain suspects in public places.
Have government officials exercised this power properly? Have
they limited themselves to cases in which it’s reasonable to take steps
that either nip crime in the bud or detain people who, it appears, have
already committed crimes? There are two reasons for saying that the
government abuses its Terry power. One has to do with the Court’s
100
W. C. Heffernan
application of its own framework. The precedent established in Terry

was limited to suspicious behavior observed by an officer. Shortly after
Terry was decided, however, the Court expanded the scope of police
authority by upholding a forcible stop based on an anonymous tip.7
In the decades that followed, the Court went even further. For example,
in California v. Navarette, a 2014 case, it held that a Terry-type stop is
constitutionally permissible if based on (i) an anonymous tip of suspi-
cious behavior that (ii) receives no confirmation in police observation of
the person detained.8 Navarette dramatically alters the balance between
citizens and the state. It invokes the Constitution itself in opening the
door to heavy-handed intervention state intervention in personal affairs.
Even if the Court had not enlarged on the original Terry framework,
though, there would have been reason to worry about the discretion
the decision conferred on government officials. This is because Terry
sets no limits on the frequency with which it can be used as a crime-
control measure. A city police chief might settle on a strategy that relies
on stop-and-frisk only sparingly. Nothing in Terry requires this, how-
ever. Terry sets standards for police intervention in an individual’s life, in
other words, but it says nothing about the frequency with which depart-
ments can rely on it to fight crime.
In the first decades of the twenty-first century, many big-city mayors
adopted an aggressive-use strategy for stop-and-frisk. New York City’s
experience with the strategy is particularly instructive, in part because
the city’s sheer size makes it an important laboratory for testing police
initiatives, in part because abundant data exists concerning the strate-
gy’s effect. On becoming mayor in 2002, Michael Bloomberg settled
on stop-and-frisk as a crime-control tool for New York’s poor neigh-
borhoods. Consistently with Terry and cases decided in its wake, sus-
pects were to be detained on the basis of observed behavior or on the
basis of anonymous tips. Weapons would then be seized in the course
of the frisks conducted of the suspects. Even if the cases for weapons
possession were later dismissed because the interventions were declared
invalid, success could be claimed, Bloomberg concluded, because ille-
gally possessed weapons and other contraband would not be returned
to those carrying them, thus enhancing the safety of the public
at large.9
101
During the twelve years Bloomberg held office as the city’s mayor,
the number of stop-and-frisk interventions conducted by the New York
Police Department (NYPD) increased by more than 575,000—from
97,000 in 2002 to a high of 685,000 in 2011. Residents of the neigh-
borhoods selected for stop-and-frisk frequently complained about the
“flood-the-zone” strategy being employed. They noted, in particular,
the vast racial disparities in NYPD interventions (about 90% of those
detained were black and Latino even though these minority groups
constituted less than 45% of the city’s population). Critics also noted
the relatively low success rate in recovering contraband (the recovery
rate for this never exceeded 15% of stops and in some years fell below
10%).10 As against this, the Bloomberg administration pointed to the
decline in violent crime that accompanied the dramatic rise in stop-and-
frisk. The number of index crimes (i.e., the seven serious crimes—mur-
der and non-negligent homicide, rape, robbery, felony assault, burglary,
grand larceny, and grand larceny of motor vehicles—the federal govern-
ment calls on local police to record) fell by nearly one-third between
2002 and 2011, the Bloomberg administration noted. A massive
increase in stop-and-frisk might ruffle feathers, it could say by way of
defending the initiative, but the effect of the interventions was to make
the city safer (Table 6.1).11
This trade-off (accept the crime-control benefits of aggressive stop-
and-frisk in return for a dramatic increase in state power, particularly
over minority communities) might have been accepted as tragically
necessary had it not been for New York City’s experience in the years
following Bloomberg’s departure from office. While running for mayor
in 2013 against Bloomberg’s record, Bill de Blasio promised that, if
elected, he would bring aggressive stop-and-frisk to an end.12 Once he
assumed his position, in early 2014, de Blasio kept his word. As indi-
cated in accompanying table, the number of stops-and-frisks conducted
by the NYPD declined dramatically in 2014 and 2015. Indeed, there
was a 98% drop from 2011, the high-point of the Bloomberg admin-
istration, to 2016, the second year of the de Blasio administration
(from 685,000 to 12,500). Given the aggressive policing/public safety
trade-off posited by those who adopted the Bloomberg approach, one
would have expected a rise in index crimes. But the opposite proved to
102
W. C. Heffernan
Table 6.1 Stop and frisk in New York City

(New York City seven major Felony offenses (index crimes) from 2002 to 2016/
Stop and frisk interventions conducted by the NYPD during the same period)
Year Number of index crimes Number of S & F
interventions
2002 154,809 97,296
2003 147,069 160,851
2004 142,093 313,523
2005 135,475 398,191
2006 128,682 506,491
2007 121,009 472,096
2008 117,956 540,302
2009 106,730 581,168
2010 105,115 601,285
2011 106,669 685,724
2012 111,147 532,911
2013 111,335 191,558
2014 106,772 45,787
2015 105,453 22,939
2016 101,716 12,404
Sources Index Crimes NYPD Website for Seven Major Felonies (Murder and Non-
Negligent Homicides, Rape, Robbery, Felony Assault, Burglary, Grand Larceny,
and Grand Larceny of Motor Vehicle)
Stops and Frisks NYPD Website Entitled “Stop-and-Frisk Database”
be the case. Violent crime decreased under de Blasio—not dramatically,

it has to be emphasized (only about 5%)—but even this is signifi-
cant given the NYPD’s termination of its aggressive policing strategy.
Municipal safety was not jeopardized, in other words. At the same time,
state power was tamed.
Systematic Surveillance of Behavior

in Public Places
These two factors are often at odds with one another. Public safety, it’s
frequently assumed, can be achieved only at the cost of state intrusion
into personal lives. New York City’s experience with stop-and-frisk mat-
ters, then, because it can be interpreted as a man-bites-dog story—not
103
quite as unusual as this, it has to be conceded, but intriguing

nonetheless since it demonstrates that, at least on some occasions, pub-
lic safety can be harmonized with the cautious use of state power. We
should now turn to an issue where these two factors are manifestly in
tension with one another. The issue has to do with the state’s power to
monitor each individual’s behavior in public places. Casual observation
of strangers is relatively innocuous when they walk about on the street
or in parks. Each of us frequently notices our neighbors as we circulate
in public places. Police officers often notice people in the same way. On
the other hand, if our behavior in public places is subject to sustained
observation—to scrutiny that amounts to systematic monitoring—the
ramifications become more serious. If a private party monitors another
person’s movement in a public place by following that person about for
a lengthy period of time, the follower can be said to engage in stalking.
If a police officer follows someone about for a long period of time, the
officer can be said to engage in surveillance.
What if an officer doesn’t actually follow someone about but instead
relies, while sitting in a station house, on videos broadcast by cameras
located in public places? And what if the officer performing this task
doesn’t rely on a single camera but instead uses multiple cameras and
biometric technology to monitor someone’s behavior, thereby tracking
a person’s behavior throughout an entire city? The opportunities for
systematic surveillance increase exponentially under these circum-
stances. Although few governments have yet to employ this kind of
strategy, there are currently only modest technological barriers that
prevent its adoption. Indeed, if the financial resources available to
the modern state are invested in the biometric technology likely to be
developed in coming decades, it will be possible to turn public places
into giant closed-circuit studios. Public safety might be enhanced under
this blanket-surveillance regime, but it would be enhanced at the price
of anonymity in public places.
This scenario invites further reflection on the possibility of taming
state power. It underscores a key trend—that state power has grown not
merely by virtue of the availability of the financial resources available
to the government but also because technological change contributes
to increased social control. It also underscores the need to rethink the
104
W. C. Heffernan
scope of personal liberty in the contemporary world. Public space has

traditionally been considered the state’s property—thus the different
rules that prevail for police arrests in public places as distinguished
from the home13 and the different rules that govern police chases when
they reach the boundaries established by the rules of private property
as opposed to chases conducted entirely in public areas.14 If the state’s
power to conduct observation in public places is subject to no legal
restriction, then the “giant studio” effect of blanket surveillance will be a
reality in the relatively near future.
Does the Constitution offer protection against this possibility?
It might be argued that behavior in public places is a matter of
privacy—that is, it might be contended that while brief observation of
someone’s behavior in a public place doesn’t violate that person’s inter-
est in privacy, sustained observation does. The Fourth Amendment,
the courts have often said, protects those expectations of privacy soci-
ety considers reasonable,15 and one such expectation, it could be con-
tended, is that each of us will be free of extended scrutiny by others of
our behavior in public places.
But this argument is problematic at best. One difficulty with it is
traceable to the text of the Constitution, for while the text manifests
a special concern for private places (for houses in particular, given the
reference to them in both the Third and Fourth Amendments), these
provisions suggest an absence of concern for government observation of
behavior in public places. Another difficulty is traceable to the Supreme
Court’s own comments on privacy. Although the Court has stated
that the Constitution protects each individual’s interest in privacy, it
has asserted as well that there is no protection for matters people have
displayed to the public at large. “What a person knowingly exposes to
the public,” the Court has remarked, “even in his home or office, can-
not be a subject of Fourth Amendment protection.”16 Because people
“knowingly expose” their faces, hands, and bodily frames to the public
when they venture outside their homes, it’s clear that there is no Fourth
Amendment protection for what’s been exposed.
Does some constitutional provision other than the Fourth
Amendment cover government surveillance in this context? There’s no
obvious candidate here. What about a statutory provision, whether
105
one contained in federal or state law? Once again, there is no obvious

candidate. This is a novel issue, in other words. It wasn’t addressed by
the Constitution’s framers, nor has it been addressed by Congress or by
state legislatures.
This said, there is a recent Supreme Court case, Jones v. United States,
decided in 2012, that deals indirectly with systematic government
surveillance, though it doesn’t provide a rule of law that will prove help-
ful in the future. Jones was concerned with a four-week surveillance
initiative that monitored a driver’s movements throughout a single city,
Washington, DC. The surveillance was conducted by means of a global
positioning system (GPS) that had been surreptitiously attached to the
car being observed. A warrant had been obtained on behalf of the initi-
ative. The warrant authorized installation of the GPS within a 10-day
period, however. Because it wasn’t installed until the 11th day after its
issuance, it didn’t cover the surveillance undertaken by the police. The
Court thus assumed that the surveillance was not authorized as per
the Fourth Amendment warrant clause, so it confronted the question
of whether government surveillance of someone’s movements solely
in public places over the course of 28 days is subject to constitutional
protection when this is carried out by means of a GPS surreptitiously
attached to a car.17
The Jones Court answered this question by turning to the concept a
trespass, a legal category that had once been deemed critical to Fourth
Amendment analysis but that had not figured importantly in recent
case law. Writing for a five-person majority, Justice Scalia held that the
fact that the fact that the government had trespassed on the car—that
its agents had committed an unauthorized physical incursion on it by
attaching the GPS—made the government’s surveillance unconstitu-
tional.18 The Jones Court thus revived an ancient category to address a
quintessentially modern problem. But it did so to avoid, not to resolve,
questions about the constitutional permissibility of systematic surveil-
lance in public places.
There is of course an obvious merit to this approach. It’s arguable
that a court shouldn’t take on a difficult issue when an easy solu-
tion is at hand. But on the other hand, it could be argued that blan-
ket surveillance is too important for a subject to leave to another day.
106
W. C. Heffernan
This is the (quite different) approach Justice Alito adopted in Jones.

Although he concurred with the result reached in Scalia’s Jones opin-
ion (indeed, all nine justices agreed that the government’s search was
illegal), Alito took the bull by the horns and argued that systematic
surveillance of a person’s conduct in a public place is constitutionally
impermissible. A focus on trespass, Alito remarked, “largely disregards
what is really important” in the case—i.e., “the use of a GPS for the
purpose of long-term tracking….”19
Alito, in other words, redirected attention from a category that offered
a straightforward solution to the case but that was unlikely to be criti-
cal in future cases to the category that made Jones important (and also
difficult to decide). In doing so, Alito emphasized the threat to personal
freedom posed by systematic surveillance. “In some locales,” he wrote,
closed-circuit video monitoring is becoming ubiquitous. On toll roads,

automatic toll collection systems create a precise record of the movements
of motorists who choose to make use of that convenience…. Perhaps
most significant, cell phones and other wireless devices permit wireless
carriers to track and record the location of users….20
By inventorying these technological innovations, Alito was of

course emphasizing the power of the modern state to intrude on per-
sonal affairs in order to combat harm-to-others. This portion of Alito’s
opinion was sound, then. Unfortunately, the category Alito used to
address this enlargement of power was flawed, for he argued that cases
concerning privacy provide the key to taming state power. Alito did
so by ignoring the key premise (already quoted) of those cases—that
“[w]hat a person knowingly exposes to the public … cannot be a sub-
ject of Fourth Amendment protection”21—so his remedy centered on
the following less than plausible claim: that something which cannot
be protected by the Fourth Amendment (because it’s been knowingly
exposed to the public) is nonetheless a subject of Fourth Amendment
protection.
What category other than privacy might Alito have invoked to resolve
the case? The answer is obvious—but also constitutionally problematic.
To note the obvious first, what was at stake in Jones—and what’s at stake
107
generally when people go about in public places—is an interest in ano-

nymity, not an interest in privacy. Chance encounters in public places
are an inescapable component of everyday life. On the other hand, sus-
tained scrutiny of public behavior is not a feature of everyday life. It’s
oppressive to be followed about in public places (for young women, this
is downright frightening)—and it’s also oppressive for the state to use its
resources to subject someone to sustained scrutiny in this context. For
the state to exploit advances in technology that facilitate this is to alter
fundamentally the balance between government power and individual
freedom. It’s reasonable to assume that turning public places into giant
TV studios will reduce violent crime. But this will alter for the worse
the context of our lives, so it’s imperative to tame state power here even
though an enlargement of it might promote public security.
Unfortunately, the argument for a constitutional right of anonym-
ity in public places—or, to put the more precisely, for a reasonable
expectation of anonymity in public places—finds no support in the text
itself. What legal initiative should be taken to support this? The most
credible initiative would come from legislatures, not from courts,
a point Alito recognized in passing in his Jones concurrence when he
remarked that “[i]n circumstances involving dramatic technological
change,” it’s best for a legislative solution to be found.22 Such a solu-
tion would rely on three premises. First, it would allow the police to
use closed-circuit television cameras to monitor public places. Second,
it would prohibit them from using the observations provided by those
cameras to monitor movements over a substantial period of time.
And third, it would permit them to refer back to images provided
by cameras when there is probable cause to believe that a suspect has
committed a crime. A regime such as this would preserve the state/
citizen balance while making allowance for the benefits provided by
technology.
And what if no legislation is adopted along these lines? What if the
giant-studio prospect becomes a concrete reality? If this dystopian
possibility becomes a reality, it would then be sound, textual silence
notwithstanding, for the courts to announce that there is a constitu-
tionally protected expectation of anonymity in public places. There have
been occasions in the past when the Court has disregarded the text’s
108
W. C. Heffernan
silence by recognizing a right it considers just. In doing so, it has

reasonably assumed that the preamble’s statement that the Constitution
protects “the blessings of liberty” is more important than the silence
of its specific provisions. If legislatures fail to act, this would another
case where the imperatives of justice trump concerns about textual
specificity.
Notes
1. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 347–49 (1981), discussed
infra in Chapter 7.
2. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 291–97 (1987), discussed
infra in Chapter 8.
3. Terry v. Ohio, 392 U.S. 1, 5–6 (1968).
4. For commentary on the problematic status of stop-and-frisk in original
understandings of the Fourth Amendment, see Justice Scalia’s concur-
rence in Minnesota v. Dickerson, 508 U.S. 366, 379–83 (1993).
5. Terry, 392 U.S., at 15–16.
6. Id. at 36–39.
7. See Adams v. Williams, 407 U.S. 143 (1972).
8. See California v. Navarette, 134 S.Ct. 1683 (2014).
9. For an overview of the Bloomberg stop-and-frisk initiative, see Michael
White and Henry Fradella, Stop and Frisk: The Use and Abuse of a
Controversial Policing Tactic, Chapter 5 (2016).
10. These trends are discussed in a report prepared by the New York Civil
Liberties Union, NYC: Stop-and-Frisk Down, Safety Up (December 2015),
available at https://www.nyclu.org/en/press…/stop-and-frisk-down-safety-
nyclu-data-analysis.
11. For Bloomberg’s defense of the program along these lines, see Stop and
Frisk supra note 9, at 138.
12. For de Blasio’s position, see id. 112.
13. See, e.g., Payton v. New York, 445 U.S. 573 (1980).
14. See, e.g., Warden v. Hayden, 387 U.S. 294 (1967).
15. The origin of the reasonable expectations of privacy test is to be found
in Justice Harlan’s concurring opinion in Katz v. United States, 389
U.S. 347, 360–61 (1967).
16. Katz, 389 U.S., at 352.
109
17. Jones v. United States, 132 S.Ct. 945, 951 (2012).

18. Id. 952.
19. Id. 962.
20. Id. 963.
21. See note 16 supra, and accompanying text.
22. Jones, 132 S.Ct., at 964.
7
State-Imposed Punishment
Even when it is justified, punishment remains problematic. This is

because punishment consists of a condemnatory deprivation. Standing
alone, any exercise in condemnation is troubling since it involves crit-
icism by one person of another’s shortcomings. When coupled with a
deprivation, condemnation is particularly troubling. And when carried
out by the most powerful of all social institutions—the state—even jus-
tified punishment stands out as the most problematic feature of the gov-
ernment’s exercise of its legitimate authority.
To note these points isn’t to suggest that state-imposed punishment
should be abolished. Rather, it’s to introduce a note of caution when
thinking about the scope of the state’s exercise of power, for punishment
carried out in the name of the government can produce unacceptable
results at both the individual and institutional level. As far as individu-
als are concerned, it’s possible for officials charged with operating penal
institutions to claim they are merely fulfilling a legal duty when they
in fact enjoy dominating and degrading those in their care. As far as
institutions are concerned, the government can use its power to confine
huge portions of the population, all in the name of social control.

https://doi.org/10.1007/978-3-030-12782-4_7
112
W. C. Heffernan
Because the Constitution’s Eighth Amendment prohibits cruel

and unusual punishments, it might be argued that there is no need to
inquire independently into questions about justice and state-imposed
punishment. The answer to this objection relies on the premise that
informed the previous chapters. It is that we should keep an open mind
about whether the Constitution, as interpreted by the courts, adequately
tames state power. That it provides a tool for doing so doesn’t mean that
it succeeds. In thinking about state-imposed punishment, we of course
will have occasion to consider case law bearing on it. We should not,
however, assume in advance that Supreme Court decisions interpreting
the Eighth Amendment offer definitive answers as to the proper lim-
its of state punitive power. Indeed, because the United States imprisons
a higher percentage of convicted offenders than any other industrial-
ized country,1 we will have good reason to question the Court’s con-
clusions concerning the Eighth Amendment. Judicial interpretation of
the Constitution, we will see, leaves much to be desired if the goal is to
tame state power. A focus on justice serves as a much-needed corrective
to the incarceration policies adopted by most American jurisdictions.
Whether, What Kind, and How Much

Questions Bearing on Punishment
To understand why this is so, we should return to the lex talionis
framework of eye for eye, tooth for tooth. Lex talionis offers a straight-
forward way to resolve grievances. It does so by insisting on a tight fit
between one person’s act and another person’s response to that act—
on equivalence between harm suffered and harm inflicted. If ease of
application were the decisive criterion for thinking about grievance-
resolution, lex talionis would of course be highly attractive. But sim-
plicity can’t be decisive when fairness is sacrificed, and the difficulty
with lex talionis, as noted in Chapter 2, is that it focuses on injury, not
culpability. Thus, even if A gouges out B ’s eye non-culpably (A may
have slipped on something and so have set in motion a chain of events
that led to B ’s loss of an eye), B can nonetheless invoke lex talionis to
7 State-Imposed Punishment
113
retaliate in kind. This is unacceptable as a matter of justice because

not all harmful acts are culpable—and culpability, not injury, is the
core consideration for thinking about the fair resolution of grievances.
Put differently, we can say that lex talionis focuses on an act/response
nexus whereas criminal justice focuses on an offense/sanction nexus,
with offense referring to a culpable act and sanction to a condemnatory
response to such an act. The offense/sanction nexus directs attention
to proportionality questions. It doesn’t ask whether the response to
harm should be equivalent to harm received. Rather, it asks the more
difficult, but also more pertinent, question whether the sanction to
be imposed responds adequately to the gravity of the wrongful act
committed.
Although indispensable to criminal justice, the concept of an offense/
sanction nexus can’t always produce a clear-cut answer as to the proper
response to a culpable act. This is because multiple factors have to be
considered when thinking about blameworthy conduct—among them,
the harm occasioned by someone’s act, the offender’s disposition to
inflict harm, the offender’s past history, and the offender’s expression of
remorse for harm imposed. These are incommensurable variables. Each
matters, and because each is important, it would be arbitrary to spec-
ify in advance the weight the different variables should receive in dif-
ferent settings. Nonetheless, in noting that deployment of the offense/
sanction nexus often fails to generate definite conclusions, one should
avoid the opposite extreme by concluding that reliance on the nexus is
useless. Rather, acceptance of its indefiniteness merely means that the
fit between offense and sanction is often less than tight—and thus that
sentences themselves are often contestable.
How are we to move from these general principles to specific con-
clusions about the scope of state-imposed punishment? The best way
is to pose three questions: whether to punish a harmful (or imminently
harmful) act, what kind of punishment to impose on the person com-
mitting that act, and how much punishment to impose. These are
sequential questions. The what kind question should be asked only if
whether is answered in the affirmative. Similarly, the how much question
should be considered only when what kind has been properly resolved.
114
W. C. Heffernan
If we turn to the first of the sentencing questions—whether to pun-

ish at all—we will be able to see why the offense/sanction nexus is a
loose one. Needless to say, there are many occasions when an offender
intentionally inflicts harm, expresses no remorse, and a victim is unwill-
ing to consider forgiveness. On these occasions it’s not only possible to
answer the whether question affirmatively but possible as well to answer
it by insisting on a tight fit between offense and sanction (i.e., by say-
ing that decisive weight should be given only to the first two factors
noted above—i.e., the harm occasioned by an offender’s act and the
defender’s intention to inflict injury). But what if other factors are pres-
ent? For example, what if an offender appears to be genuinely contrite?
Or what if a victim forgives an offender? Or what if a judge concludes
that a first-time offender (a late adolescent, perhaps, who has long had
troubles with impulsivity) should not be punished but instead should
be placed in a rehabilitation program?
Each of these considerations is pertinent to the whether question
(though the amount of harm inflicted and the offender’s disposition to
inflict harm continue to matter as well). Indeed, not only is the offense/
sanction nexus loosened when one or more of the considerations just
mentioned is relevant, there are occasions when the nexus is loosened
so much that a negative answer is in order as to whether punishment
is warranted. In some circumstances, after all—in particular, when the
harm has been modest, the offender is contrite, and the victim willing
to reconcile with the offender—forgiveness and/or mercy should be pre-
ferred to punishment. It’s arguable that this option should only rarely be
employed. However, because it can’t be dismissed out of hand, it’s also
clear that the whether question must continue to be posed.
This said, it can readily be agreed that punishment is in order for
most acts of malicious wrongdoing. Monetary compensation to a vic-
tim is insufficient in this context: merely paying money for wrongdo-
ing doesn’t capture the magnitude of the wrong brought about by, say,
rape or arson. Only when a condemnatory deprivation is imposed on
an offender can it be said that the condition of respect originally owed
the victim has been fully vindicated.2 The whether question having been
answered in the affirmative, then, it becomes necessary to address what
kind and how much questions.
115
As for the what kind question, two subsidiary issues merit consider-
ation: first, whether certain kinds of punishments are so barbaric that
they should never be imposed and second, the circumstances in which
non-incarcerative options should be preferred to imprisonment. The
first issue is important in its own right, for simply by raising it someone
emphasizes the immense power of the state, a power that can be used
to degrade those subject to its jurisdiction. A specific type of sanction
helps to illustrate this point. Even after the Constitution’s adoption,
whipping was used as a punishment for certain crimes; indeed, the first
Congress made public whipping (up to 39 stripes) the sentence for lar-
ceny when it adopted the Crimes Act of 1790.3
Did Congress prescribe an unjust punishment when it mandated
whipping? Although it was widely used as a noncapital sanction in the
eighteenth and early nineteenth centuries, whipping has disappeared
from modern penal practice,4 so it might be argued that, because the
term barbaric doesn’t admit of precise application, social conventions
should serve as a guide in determining whether to allow the state to
impose such a sanction. There is something to be said for this: after all,
there is no clear guide to the borderline between barbaric and harsh.
Whatever the merits of this appeal to changing convention, though, it’s
clear that whipping has always involved emotional and physical deg-
radation—and that even though officials of the early American repub-
lic routinely employed it as a penal sanction, later generations have
come to realize that it stigmatizes offenders. The best answer is to go
beyond convention, then—to say that it became clear, though it wasn’t
to the founding generation, that the imposition of punishment should
not stigmatize offenders beyond the bare fact of condemning them.
Sanctions that venture further than condemnation and deprivation of
physical liberty thus should be viewed with the deepest suspicion.
These remarks set the stage for consideration of most widely debated
what kind question—the death penalty. Dogmatic assertion too often
supplants reasoned deliberation in this context. This is unfortunate, for
there are sound points worth considering on both sides of the death
penalty debate. On the support side, it’s essential to note that, in cer-
tain circumstances, the act/response nexus championed by lex talionis
can converge on the same answer as the offense/sanction nexus as far
116
W. C. Heffernan
as capital punishment is concerned. That is, if an offender commits

intentional homicide, it’s reasonable not simply to say life for life (and
so to honor the lex talionis act/response nexus) but also to say that exe-
cution is an appropriate response to intentional killing (and so to honor
the offense/sanction nexus) since the offender’s culpability is answered
by a similar sanction.5 Needless to say, this point doesn’t settle mat-
ters as far as the offense/sanction nexus is concerned, for that nexus
calls (as lex talionis does not) for inquiry into numerous other issues—
for example, whether the victim provoked the offender, whether the
offender acted with premeditation, or whether the offender was con-
trite. Moreover, whatever the soundness of this point about conver-
gence, lex talionis remains a flawed framework of grievance-redress in
general, for despite the fact that it generates a plausible (though not
necessarily compelling) conclusion in some cases of intentional hom-
icide, the results it generates in other settings (for instance, where a
homicide was negligent or where it was carried out in self-defense) are
wholly unacceptable, making it unsatisfactory as a general guide to
grievance-redress.
Though substantial, the argument in favor of the death penalty has
to be weighed against the even more substantial arguments against
it. One has to do with the worldwide trend against sanguinary pun-
ishments. The decline of whipping is part of this trend, but its most
important component has been abolition of capital punishment. Blood
for blood was indeed the standard measure of punishment in the past.
It has been replaced, though—in all industrialized societies except the
United States,6 and in many parts of America states as well7—by pun-
ishments that don’t aim at destroying the offender’s body. Trend anal-
ysis, it has to be granted, is useful only for identifying the direction of
social conventions. It can’t settle questions about justice, for the course
of legal practice is sometimes incompatible with considerations of fair-
ness. Here, though, as in the case of whipping, the trend under review
highlights a troubling feature of state-imposed punishment—offender-
degradation. All sanguinary punishments (not only whipping, but other
punishments such as ear-cropping and branding) have the intended
effect of denying their recipients the full range of respect due others.
In the case of capital punishment, execution doesn’t simply degrade an
117
offender, it also wipes out (quite literally) his/her humanity. These con-
siderations, while not sufficient to eliminate all doubts about the propri-
ety of the death penalty in cases where the offender has murdered with
cold-blooded premeditation, nonetheless provide an adequate reason to
move from neutrality to opposition. Punishment is necessarily condem-
natory. There is no good reason to go further than condemnation by
ending the life of someone who has engaged in grave wrongdoing.
And what about the other extreme—i.e., what about the use of incar-
ceration for minor offenses, in particular for nonviolent crimes? In ask-
ing this question, someone deploys the offense/sanction nexus in its
standard form. That is, he/she relies on an implicit rank-order of sanc-
tions (one that moves from the most to the least severe) and an implicit
rank-order of offenses (one that moves from the gravest to the most
modest) and contends, consistently with proportionality reasoning, that
the least severe sanctions should be applied to the least grave offenses.
This approach does not generate categorical conclusions. In adopting it,
someone can’t say that sanction x is always in order for offense y. One
can, however, say that proportionality analysis establishes a presumption
in favor of a modest sanction for a modest offense.
In relying on this presumption, someone can plausibly contend that a
wide range of nonviolent crimes and even some violent ones that occa-
sion only minor pain should be addressed by non-incarcerative meas-
ures such as alternative dispute resolution8 and restorative justice.9
Each of these aims at avoiding offender-imprisonment by prescribing
steps that promote reconciliation, restitution, and community service.
Needless to say, the steps followed sometimes prove ineffective. In par-
ticular, steps taken to promote offender/victim reconciliation can break
down, either because the offender is unwilling to waive constitutionally
protected rights against self-incrimination or because he/she, despite
formally waiving legal rights, is unprepared to make amends in a way
that is satisfactory to the victim. But because alternative dispute reso-
lution and restorative justice have succeeded in many instances, they
should be classified as the preferred option for most misdemeanors. The
offense/sanction nexus can profitably be applied to modest wrongdoing,
in other words. It’s compatible with proportionality reasoning in that it
links low-ranked offenses with low-ranked punishments.
118
W. C. Heffernan
The parallelism of the preceding analysis can readily be extended to

more serious crimes. That is, once the what kind question is answered
in favor of imprisonment, the how much question can be addressed
through a rough pairing of offenses and sanctions: medium-ranked
crimes are to be answered with moderate sentences and serious crimes
with prolonged sentences. Precise answers to how much questions are
indeed unavailable for major crimes: anyone who responds with a pre-
cise answer to the question how much time in prison is warranted for
intentional homicide or rape relies on an unpersuasive claim to exacti-
tude. But because this point holds true for all crimes (how much time
is warranted for commercial burglary or tax fraud? ), the rank-order
approach just proposed for minor crimes serves as the next-best option
for answering the how much questions associated with serious criminal-
ity. Murder sets the standard. Aggravated rape comes next, followed by
other grave assaults on personal security rights. This rank-order frame-
work is consistent with the proportionality premises associated with the
offense/sanction nexus.10 Such a framework doesn’t specify what the
longest sentence in a jurisdiction should be (this is likely to vary over
time, as one would expect given the points made earlier about sentenc-
ing trends). It will, however, provide a principled basis for sentencing
in that the crimes mentioned in the rank-order ladder will continue to
have the same position in that hierarchy.
Because this approach is consistent with common-sense intuitions
about sentencing, it’s surprising that the Supreme Court hasn’t endorsed
it wholeheartedly when interpreting the Eighth Amendment punish-
ments clause. Needless to say, the Court hasn’t rejected proportionality
analysis altogether. It draws on this in its death penalty cases—and so
has rejected capital punishment as disproportionate for certain crimes
(rape, for instance11) and for certain types of offenders (adolescents12
and the mentally retarded13). And the Court even draws on the con-
cept of disproportionality when addressing noncapital sentencing. For
instance, it has remarked that a proportionality principle would “come
into play … if a legislature made overtime parking a felony punisha-
ble by life imprisonment.”14 It would come into play, in other words,
through judicial reliance on the offense/sanction nexus, for the Court
has stated that it would rely on proportionality analysis if confronted
119
with a claim that the Eighth Amendment prohibits the government

from exercising its power to impose a grave sanction on someone who
engages in a minor offense.
But what if an offense is modest? For instance, what if a legislature
calls for a grave sanction (life imprisonment, perhaps, or 25-years to
life) for a crime that ranks far below the most serious in its jurisdiction?
When confronted with this possibility—an offense/sanction mismatch,
though not the egregious mismatch hypothesized in the overtime park-
ing example—the Court has demurred. “The Eighth Amendment does
not require strict proportionality between crime and sentence,” Justice
O’Connor has remarked. “Rather, it forbids only extreme sentences that
are grossly disproportionate to the crime.”15 On the Court’s analysis of
the Constitution, then, the offense/sanction nexus reins in government
power when there is an outrageous mismatch between crime and pun-
ishment, but it imposes no limitation whatsoever when the mismatch
is substantial though not quite so extreme. As a practical matter, this
has led the Court to conclude that life imprisonment for a two-time
felon for defrauding someone of $125.75 is constitutionally accept-
able.16 The Court also has held that a sentence of 25-years to life, also
for a two-time felony offender, for stealing golf clubs is constitutionally
acceptable.17 It thus has given the green light to legislatures to prescribe
sentences that are substantially disproportionate to the offenses commit-
ted by defendants. In doing so, it has provided a constitutional stamp of
approval to the mass incarceration phenomenon of the last generation, a
trend that led to the 400% increase in imprisonment between 1980 and
2015.18 Put differently, the Court has declined to use the Constitution
to tame state power. Instead, it has been an institutional enabler of mass
incarceration.
How should the Court have resolved the how much questions just
noted? Each case involved repeat offending, so it would of course have
been appropriate to conclude that an enhanced sentence for the modest
crimes at stake was in order. What was not appropriate was a conclu-
sion that the enhancement should lead to a sentence on a par with
those imposed for murder and aggravated rape. In allowing this, the
Court undermined the offense/sanction nexus. It held that the state, in
pursuing its legitimate interest in deterring repeat offenses, may increase
120
W. C. Heffernan
sentences virtually at will. It has to be granted that there is no

principled answer to how much questions if the focus of inquiry is lim-
ited to line-drawing within numbers. A principled answer can be iden-
tified, however, once attention is given to the rank-order of offenses, for
it can then be said with confidence that sentences reserved for the most
serious crimes should not also be imposed on repeat offenders of mod-
est ones.19 To allow this is to license state power, not to tame it.
This critique of the Court’s reasoning points to a humane way
to think about criminal justice. It doesn’t invoke justice in the all-
or-nothing sense that’s possible when thinking about cases (such as
drug possession) where the state uses its power to punish people who
haven’t harmed others. Rather, the argument here has a subtler aim.
It shows that power can be abused even when there is no case of man-
ifest injustice, for even though no categorical answer is possible for
how much questions it’s nonetheless possible to compare sentences for
different crimes and so to show that state power has run wild if golf-
club thieves receive the same punishment as murderers. The argument
just presented shows as well that the Constitution, as interpreted by the
courts, may not serve as an adequate check on the government’s abuse
of power. This has certainly been the case as far as mass incarceration
is concerned. Decisions by legislators have of course been the primary
cause of mass incarceration, but the Court’s failure to heed the signifi-
cance of the terms cruel and unusual has also contributed to the extraor-
dinary growth in imprisonment of the last quarter century.
Prison Conditions: The State’s Carceral

Responsibility for Inmates
What about the conditions offenders confront when sent to prison?
Those conditions are often hellish. They include overcrowding; facil-
ities are sometimes packed beyond 150% capacity. They also include
brutality inflicted by corrections officials. And they include brutality by
fellow-inmates, in particular assaults (sometimes sexual) that are often
preventable as long as reasonable steps are taken to limit them.
121
Is the state responsible for these conditions? The answer is yes—in

each instance. It’s obvious that the state is responsible for prison over-
crowding: If a legislature embarks on a program of mass incarceration,
it must, as a matter of elementary justice, pay for this by building more
prisons to accommodate an increased number of inmates. The answer
is relatively clear in other cases as well. As for brutality by corrections
officers, the state should be held responsible for the harm its employees
commit. They are hired to enforce the law impartially; if they fail to
do so, their employer (the state) should provide compensation—while
the employees themselves should be disciplined. As for brutality by
fellow inmates, the state should take responsibility for all acts of inmate
wrongdoing that could reasonably have been anticipated in designing
and managing prison spaces. Inmate-on-inmate violence may occasion-
ally be inflicted in ways that could not possibly have been anticipated
by those responsible for the design and management of facilities. Apart
from these unusual cases, though, the state must compensate inmates
for the harm they suffer at the hand of other inmates.
The general principle of justice at stake here is easily stated. It is a
principle of carceral responsibility, a principle that holds the institution
using force to detain people against their will responsible for the rea-
sonably foreseeable harm that occurs as a result of their detention.20
This principle works a variation on you break it, you pay for it, which
in turn is understandable in terms of a larger concern with negative
reciprocity. In this instance, we focus on responsibility for depriving
someone of liberty—and we’re thus saying that the institution carrying
out such a deprivation is accountable for the harm that occurs during
the deprivation.
Have Supreme Court opinions honored the principle of carceral
responsibility? In some instances, they have. The Court has held, for
example, that because the state detains inmates it’s responsible for their
health care needs,21 a point of particular importance since the state
isn’t necessarily responsible for the health care needs of those released
from prison. The Court has also held that the state must take steps to
reduce prison overcrowding. It hasn’t required that states not exceed
100% capacity. It has, however, placed a limit at 133% of capacity in
litigation concerning the California prison system22 (a system whose
122
W. C. Heffernan
overcrowding is attributable in large measure to the kind of theft-

of-golf-clubs criminal sentence discussed in the previous section). This
is certainly a worthwhile start, though it’s hard to see why the Court
shouldn’t use its power to interpret the Constitution to cap prisons at
100% capacity.
On other issues, however, the Court has failed to impose the full range
of just responsibility on the state. Think first about the possibility of
degradation of inmates by corrections officers. As noted earlier, although
punishment is inherently condemnatory, it need not involve degradation
beyond the bare fact of condemnation. An inmate is subordinate to a
corrections officer; this doesn’t mean, though, that an inmate must be
subject to humiliation at the hands of those supervising him or her.
This straightforward point is best understood by thinking about
the possibility of degradation that arises when a corrections officer
exercises supervisory authority over an inmate. An officer can enjoy
degradation—can take pleasure, in other words, in the acts that debase
those within his charge. It’s this extra loss of dignity—the dignity
that can be retained even when someone has to subordinate him/
herself to another—that’s at stake here. In the Middle Ages, loss of
dignity was expressed physically; bodily mutilation rituals (ear-cropping
and thumb-severing, for instance) were employed to establish that an
offender no longer enjoyed the same status as other members of soci-
ety. Today, degradation is imposed through prison rituals, some of them
officially sanctioned, some informally adopted by corrections officers.
It’s essential for measures to be adopted that limit officers’ opportunities
to humiliate those they’re charged with supervising.
What measures are needed? At the systemic level, legislation should
be adopted that prohibits reliance on types of punishment that unnec-
essarily humiliates offenders. This has happened in many cases. For
instance, as noted earlier, during the course of the nineteenth and twen-
tieth centuries, most states abolished flogging. Furthermore, as also
noted, federal courts deployed the Eighth Amendment punishments
clause to invalidate the few flogging measures that remained in force.
Isolated and episodic acts of degradation remain a matter of ongoing
concern, however. Some corrections officers take pleasure in humiliat-
ing their charges, and because no set of rules for prison management
123
actually encourages officers to degrade inmates only court-adopted

remedies can protect inmates from petty sadism by guards. On this
point, Supreme Court decisions have been woefully inadequate. The
Court has held that lawsuits for money damages may be brought
against supervisors of prisons when those officials have acted in a way
that shows deliberate indifference to the well-being of inmates in their
charge.23 It has not, however, held supervising officials liable for neg-
ligent supervision of corrections officers—and so has failed to take
the steps necessary to promote the minimum degree of respect for
inmate humanity that’s essential to an anti-degradation regime. The
Constitution could be interpreted differently. The prohibition on cruel
and unusual punishment should be read in a way that holds the state
liable for negligent supervision of corrections, thus holding government
responsible for most acts of official brutality.
A further limitation on state power is closely related to, but not
identical with, the prohibition on degradation. This one has to do
with the state’s obligation to safeguard the physical well-being of
those it coercively detains. This obligation begins at the moment
someone is deprived of his liberty. It extends from the time of arrest
to pre-indictment detention through post-conviction incarceration. The
obligation is comprehensive in character. It includes a duty to make sure
that people deprived of their liberty are properly fed, clothed, housed,
medicated—and, of course, protected from physical assault by oth-
ers who’ve been detained and by corrections officials as well. Put dif-
ferently, we can say that the state’s carceral responsibility makes it a
super-surrogate for those it’s detained. In depriving someone of basic
liberties, the state assumes greater obligations than it has to citizens who
are free to take care of themselves.
Supreme Court interpretations of the Eighth Amendment have
only partially acknowledged that the state operates under this obliga-
tion. As noted, the Court holds the state responsible for the medical
needs of inmates, so in this respect it holds the state liable for the well-
being of those in its charge. However, because the Court’s rulings
offer no substantial protection for negligent supervision of corrections
officers, the Constitution does not provide a meaningful remedy for
inmates who’ve been injured by other inmates when these injuries could
124
W. C. Heffernan
have been prevented by proactive prison supervision. Clearly, more is

needed. Rules should be adopted (either legislatively or through inter-
pretation of the punishments clause) that protect inmates from any
harm that could reasonably have been anticipated in the wake of negli-
gent supervision of a correctional facility. A negligence standard doesn’t
make the government responsible for all harm suffered by inmates.
It does, however, underscore the government’s obligation to take the
prudent steps that can ward off foreseeable harm.
Notes
1. As of June 2018, the United States had an incarceration rate of 698 inmates
per 100,000 people. El Salvador ranked next, at 614, and Turkmenistan,
at 583. See Peter Wagner and Wendy Sawyer, “States of Incarceration:
The Global Context, 2018,” at www.prisonpolicy.org/global/2018/html.
2. For development of this point, see Jean Hampton, “Correcting Harms
Versus Righting Wrongs: The Goal of Retribution,” 39 U.C.L.A. Law
Review 1659 (1992).
3. See 1 Stat. 112, Sect. 16 (1790) (prescribing a fine and 39 stripes for
conviction of larceny).
4. In Jackson v. Bishop, the Eighth Circuit traced the gradual decline of
whipping in American penal practice, noting that by the mid-twentieth
century, only Arkansas and Mississippi continued to employ it, 404
F.2d 571, 575 (CA 8 1968), and stating that “we have no difficulty in
reaching the conclusion that the use of the strap in the penitentiaries
of Arkansas is punishment which, in this last third of the 20th century,
runs afoul of the Eighth Amendment…” (id. 579).
5. It’s arguable that this line of reasoning is compatible with Immanuel
Kant’s claim that “every murderer—anyone who commits murder,
orders it, or is an accomplice to it—must suffer death; this is what
justice, as the idea of judicial authority, wills in accordance with the
universal laws that are grounded a priori.” The Metaphysics of Morals
6:334 [1785] (Mary Gregor, trans.) 475 (1996). If analyzed in terms of
the categories employed in modern criminal law, Kant’s claim appears
to exempt from the death penalty offenders who commit negligent
homicide.
125
6. For a summary of the trend among advanced industrial societies, see

Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide
Perspective 49–59 (5th ed., 2015).
7. Id. 128–47.
8. For discussion of its methods, see Susan Blake et al., A Practical
Approach to Alternative Dispute Resolution (4th ed., 2016).
9. For discussion of its methods, see John Braithwaite, Restorative Justice &
Responsive Regulation (2002).
10. For a summary of modern theories that rely, at least in part, on the
rank-order principles outlined here, see Richard Frase, Just Sentencing:
Principles and Procedures for a Workable System, Chapter 2 (2013).
11. Coker v. Georgia, 433 U.S. 584 (1977); Kennedy v. Louisiana, 554 U.S.
407 (2008).
12. Roper v. Simmons, 543 U.S. 551 (2005).
13. Atkins v. Virginia, 536 U.S. 304 (2002).
14. Rummel v. Estelle, 445 U.S. 263, 274 n. 11 (1980).
15. Ewing v. California, 538 U.S. 11, 23 (2003) (O’Connor, J., for Ewing
plurality).
16. See Rummel, supra note 14.
17. See Ewing, supra note 15.
18. For a year-by-year summary of this trend, see The Sentencing Project,
“Trends in U.S. Corrections,” at sentencingproject.org/wp-content/
uploads2016/01/Trends-US-Corrections.
19. Justice Breyer takes this position in his Ewing dissent, see 538 U.S. at
45–47 (2003).
20. Sharon Dolovich uses the term carceral burden to discuss the state’s
obligations to incarcerated prisoners. See her “Cruelty, Prison
Conditions, and the Eighth Amendment,” 87 N.Y.U. Law Review 881,
892 (2009). The remarks here on the state’s carceral responsibility fol-
low her analysis.
21. Estelle v. Gamble, 429 U.S. 97 (1976).
22. Brown v. Plata, 563 U.S. 493 (2011).
23. Farmer v. Brennan, 511 U.S. 825 (1991).
8
Equality: Racial and Class Disparities
in State-Imposed Punishment
At present, the United States has more people under incarceration than
any other country.1 Of its nearly 1.5 million prisoners, more than half
(about 55%) are black and Hispanic.2 These ethnic groups comprise
about 30% of the country’s population,3 so their incarceration rate is
nearly double that of their representation in the population at large.
If current trends continue, their share of the inmate population will fur-
ther increase. Indeed, about one of every five black males born today
and about one of ten Hispanic males can expect to be imprisoned some-
time in his lifetime. The comparable figure for whites is substantially
lower,4 so a huge ethnic gap separates members of minority groups
from members of the population at large. Given this gap, it might be
argued, the primary function of criminal justice is not to vindicate
citizens’ security rights but to warehouse late adolescent males born into
minority groups.
Is America’s disproportionate incarceration rate for minority males
evidence that we have entered into a new Jim Crow era? Some com-
mentators have claimed this is so. Michelle Alexander argues that “mass
incarceration in the United States ha[s] … emerged as a stunningly
comprehensive and well-disguised system of racialized social control

https://doi.org/10.1007/978-3-030-12782-4_8
128
W. C. Heffernan
that functions in a manner strikingly similar to Jim Crow.”5 Dorothy

Roberts relies on the Jim Crow analogy when she advocates “abolish-
ment of the criminal justice institutions with a direct lineage to slavery
and Jim Crow….”6 Graham Boyd draws on the same imagery in criti-
cizing current drug laws.
“[T]he drug war,” he writes, “is replicating the institutions and
repressions of the plantation.”7
Clearly, there is much to be said for these indictments. A country
that engages in the mass imprisonment of its most economically vul-
nerable citizens should of course reconsider the soundness of its policies.
This doesn’t mean, though, that the Jim Crow analogy offers the key to
understanding injustice in contemporary penal policy. Indeed, the anal-
ogy has to be considered fundamentally unhelpful when thinking about
racial disparities in incarceration. This is because Jim Crow laws relied
on explicit racial classifications. Through their use of the terms coloreds
and whites, Jim Crow laws made skin pigmentation the legal basis for
subordination.8
In contrast, modern laws are race-neutral. They improve on Jim
Crow because they make no reference to race. Given this difference,
even critics of modern criminal justice who rely on the Jim Crow
analogy have to speak of a “well-disguised” system of social control.
They have to concede, in other words, that they are talking about
statistical patterns—patterns in which a majority of blacks are never
incarcerated (under Jim Crow, all blacks were legally subordinate) and
in which some whites actually are incarcerated (under Jim Crow, all
whites could lay claim to a superior status). In light of these patterns,
the Jim Crow analogy has to be considered a weak one. It paints with
too broad a brush—and so fails to capture the subtleties of racial depri-
vation in an era of race-neutral law.
Those subtleties are best captured by thinking about the distinction
between wholesale and retail conceptions of criminal justice. Wholesale
conceptions of the subject rely on statistical generalizations. Retail
conceptions, in contrast, rely on case by case analysis. Needless to say,
trends in the criminal justice system have to be considered in terms of
statistical generalizations. On the other hand, criminal justice itself can
be fairly administered only at the retail level—that is, justice is achieved
8 Equality: Racial and Class Disparities in State-Imposed Punishment
129
only by thinking about what an individual defendant did in a spe-

cific case. It would of course be wrong to hold a defendant’s race (or
class or gender) against him in determining guilt or innocence, but it
would also be wrong to think of these as factors that should favor him.
Categories (race, class, and gender, for example) are essential to statis-
tical generalizations about the outcomes of the criminal justice system.
To use them to determine those outcomes, however, is to undermine
the concept of justice. To put this point differently, justice is possible
only if like cases are treated alike—only if factors irrelevant to guilt and
innocence are banished from consideration, with the result that defend-
ants are assessed in terms of what they have done, not what they are.
This chapter examines contemporary criminal justice in light of the
maxim that like cases should be treated alike. It relies on the elemen-
tary point that the proper administration of criminal justice is con-
cerned with individual cases—concerned, in other words, with discrete
questions about wrongdoing, not with personal categories (such as race,
class, and gender) but instead with questions about what a defendant
actually did. Reliance on this point does not of course immunize con-
temporary criminal justice from criticism. In particular, it doesn’t mean
that racism is absent from the adjudication of criminal justice cases, for
it’s essential to ask whether prosecutors, judges, juries silently rely on
racial-, class-, or gender-based stereotypes when resolving cases. It thus
means that questions about the ill effects of racism, classism, sexism
remain important, but that racial, gender, and class categories cannot be
used, consistently with the concept of justice, to resolve questions about
guilt and innocence.
The chapter that follows considers these claims from two perspec-
tives. The first is negative. It’s concerned with the shortcomings of cri-
tiques of modern criminal justice that rely on wholesale reasoning; in
particular, it focuses on the shortcomings of the New Jim Crow critique
and also on the shortcomings of claims that criminal justice is possible
only when social justice has been achieved. The second perspective is
positive. It’s grounded in the premise already noted—i.e., that justice in
the adjudication of claims of wrongdoing is achieved only on a case by
case basis—and it then outlines proposals for reducing the influence of
factors such as race and class in the resolution of criminal cases.
130
W. C. Heffernan
Retail vs. Wholesale Approaches

to Criminal Justice
Imagine the following argument about criminal justice. The argument
starts with an accurate claim: that, despite the fact that the sexes
are just about equally represented in the population at large, men
are imprisoned far more frequently than women. (For violent crimes,
the ratio is approximately nine to one; for nonviolent crimes, it’s some-
what less steep, though men predominate here as well.9) The next step
in the argument is to suggest that the disparities are unfair. If the pro-
portion of men and women in the general population is nearly even,
a proponent of this position might say, imprisonment rates should
also be nearly even. And finally, the proponent would say, the dispar-
ity in incarceration rates reveals the actual function of criminal justice.
Its stated purpose is to vindicate the security rights of members of the
public at large, the critic would contend, but this is merely a ruse, for
in fact it functions as a well-disguised system for subordinating men
to women—for stigmatizing men by incarcerating them at a rate far
beyond the one for women.
This of course is an absurd chain of reasoning. It assigns a malign
purpose to criminal justice by relying exclusively on a wholesale per-
spective (on gender disparities in imprisonment) and by setting aside
a retail perspective (one that focuses on case by case adjudication of
guilt). Needless to say, an honest application of the retail perspective
might establish that women actually do commit crimes at the same rate
as men. It might, in other words, demonstrate that gender bias against
men so infects the administration of criminal justice as to produce huge
disparities in imprisonment that bear no relationship to rates of offend-
ing. The question of unfairness remains unresolved, then. A convinc-
ing resolution can be achieved, though, only through reliance on the
retail perspective. Painting with a broad brush makes it possible to pose
questions about fairness, but the attention to detail associated with a
miniature brush is needed to resolve the questions posed.
The New Jim Crow Thesis. A similar point is in order when think-
ing about the new Jim Crow thesis. It’s of course conceivable that racial
131
bias so infects the adjudication of guilt that incarceration disparities

can be explained by reference to the bias of those who administer the
criminal law. Indeed, this is more than just conceivable. Well into the
twentieth century, many American jurisdictions administered racial-
ized injustice. They were case studies in state capture in its ugliest form,
for the criminal justice system was used to ensure the subordination of
African Americans10 and, to a lesser extent, Hispanics11 to whites. Even
today, with racial and ethnic bias having been repudiated as bases for
legal outcomes, prosecutors may nonetheless use their power to frame,
or at least overcharge, black and Hispanic defendants; jurors may act on
unacknowledged prejudices when assessing questions of fact; and judges
may rely on racial biases when imposing sentences. These possibilities
can’t be ignored. What can be said with certainty, though, is that these
case by case considerations are critical to claims about the function of
the criminal justice system, not points about the overall composition of
prisons.
Advocates of the new Jim Crow thesis have acknowledged, although
indirectly, the pertinence of these points. But because they have focused
primarily on federal and state drug laws, they have commented only in
passing on the significance of violent crime and the need for case by
case determination of the guilt of people charged with committing it.
Proponents of the new Jim Crow thesis have argued, in other words,
that drug laws are structured in such a way as to ensure higher convic-
tion rates for blacks than whites (even though members of the two races
consume drugs at about the same rate), so proponents of the thesis have
tended to ignore questions about violent crime. Michelle Alexander’s
comments are typical in this regard. “Although African Americans do
not engage in drug crime at significantly higher rates than whites,” she
writes, “black men do have much higher rates of violent crime, and vio-
lent crime is concentrated in ghetto communities.”12
Because Alexander’s focus is on racial disparities in drug convictions,
she does not elaborate on the ramifications of her point about violent
crime. Only a moment’s thought is needed, though, to contrast the
appropriate response to drug possession as opposed to violent crime.
As for drugs, Chapter 5 suggests decriminalization as a straightforward
solution to the issues Alexander addresses—a solution that makes it
132
W. C. Heffernan
unnecessary to think about racial bias in criminal law. But as for violent
crime, case by case consideration of questions about racial bias continues
to be essential, for it’s essential (and Alexander presumably would agree)
that murderers, rapists, robbers, etc. should be punished—and it’s there-
fore also essential to make sure that the punishment imposed on violent
criminals be administered without racial bias. Whether racial bias actu-
ally does infect the adjudication of violent crime is the general question
addressed in the next section. That section makes discretionary justice its
focal point: it asks whether prosecutors treat like cases alike when making
charging decisions and whether juries and judges do so when deliberat-
ing on guilt and innocence. This line of inquiry is incompatible with a
broad-brush claim about Jim Crow. Rather, it directs attention to deci-
sions made by specific officials in resolving specific cases.
The Social Justice/Criminal Justice Thesis. Before turning to these
matters, though, we should consider one other thesis that relies on a
wholesale perspective. This thesis treats class, not race, as the mas-
ter concept for indicting contemporary criminal justice. The thesis is
rooted in an accurate factual claim: that the overwhelming majority of
inmates in American prisons are from the bottom half of the earnings
ladder.13 It further holds that the pattern of wealth distribution in con-
temporary America is unfair. And it holds that the organs of govern-
ment—in particular, the criminal justice system—are dominated by a
ruling class composed of the wealthy.14
This social justice thesis offers an alternative theory of state capture:
not racist capture (as in the new Jim Crow thesis) but instead class cap-
ture (as underscored by the claim that government exists to protect the
property rights of the wealthy). America could adopt measures to ensure
that all its citizens enjoy the material requisites of a decent life, a propo-
nent of the social justice thesis would argue. Because it hasn’t, its failure
to address wealth inequality undermines the legitimacy of the criminal
justice system. All convictions of the indigent are suspect, a proponent
would claim. Although the stated purpose of criminal justice is to vindi-
cate security rights, the proponent would argue, its disguised function is
to protect and preserve the advantages of the already-advantaged.15
An argument of this kind doesn’t challenge the legitimacy of all
criminal convictions, it should be noted. Wealthy offenders (those
133
who commit securities or insurance fraud, for example) remain eligible

for punishment. Nonetheless, because the majority of offenders come
from poor backgrounds, a proponent of the thesis would maintain that
state-imposed punishment, when applied to the indigent, is a fig leaf
for class discipline. It keeps the poor in their place—and so protects the
unjust distribution of resources in modern America.
Intriguing as this thesis is, it is also flawed at its core. Two flaws
are readily discernible. One has to do with the possibility of excusing
crime—i.e., with the claim that social conditions have undermined the
capacity of the poor to conform to the requirements of the criminal
law. A claim of this kind is implausible on its face. It excuses the poor
from restraints essential to social life—from obligations to refrain from
murder, rape, and robbery, for example. The overwhelming majority of
indigent people are never convicted of such crimes, so the exemption
offered here excuses the poor from crimes most do not commit. Indeed,
because someone who adopts the incapacitation hypothesis implies that
poor people are unable to control themselves, that person lays the foun-
dation for an argument that the poor should be subject to preventive
detention since they pose a danger to others. The incapacitation version
of the social justice/criminal justice thesis is self-defeating, in other
words. It demeans the indigent by implying that poverty has under-
mined their capacity for self-restraint. In doing so, it opens the door to
a more troubling form of social control than the kind provided by the
criminal justice system.
What about an alternative version of the social justice/criminal
justice thesis? What if someone were to argue that the indigent are
justified in committing crimes—i.e., that incursions on security rights
by poor people are, on balance, morally sound given the unjust distribu-
tion of wealth? This line of reasoning is also unpersuasive. If adopted for
all crimes committed by the indigent, it would hold that it’s justifiable
for a poor person to kill someone else who’s poor, to rape another poor
person, and so on. If adopted for crimes the indigent commit against
rich victims, it would justify murdering the rich (but not the poor),
raping rich women (but not poor women), and so on. Even advocates
of revolutionary violence would recoil from this line of reasoning, for
while revolutionary leaders (such as those of the French and Russian
134
W. C. Heffernan
Revolutions) singled out the rich as the targets of wrath, they reined in
the exercise of violence so as to achieve purposes designed to alter the
structure of political life. The justification version of the social justice/
criminal justice thesis is as unacceptable, then, as its counterpart con-
cerning the incapacitating effects of poverty.
In light of these difficulties, we should reject the key premise of the
social justice thesis—i.e., that state-imposed punishment is legitimate
if and only if the government adopts policies that fairly redistribute
wealth. Instead, we should conclude that criminal justice and social jus-
tice are independently important components of justice. Each is a facet
of the overall subject of justice—i.e., each is concerned with the fair
terms of cooperation. But the two categories are concerned with obliga-
tions that are traceable to independent sources. The subject of criminal
justice is the obligations of restraint essential to the protection of per-
sonal security (and the state’s authority to enforce those obligations); the
subject of social justice is the fair distribution of wealth (and the state’s
authority to promote this). This distinction relies on common sense. It
encourages the government to take steps that promote the fair alloca-
tion of resources, but it further holds that wrongdoing can neither be
excused or justified when the allocation of resources is less than fair.
The Possibility of Achieving Equal

Justice on a Case by Case Basis
In casting aside wholesale conceptions of criminal justice such as those
just examined, we can agree that our central concern must be cases (i.e.,
claims about specific wrongdoing) and ask what it means to treat cases
alike. When posed as a general question, the answer seems baffling, for
it’s by no means clear what makes one case resemble another. However,
when posed as a question about the restraint appropriate when deal-
ing with specific cases, the answer (or at least the starting point for
answering the question) is straightforward, for it’s obvious that certain
considerations—race, class, and gender, for example—should not influ-
ence decision-makers when resolving questions about guilt or about
punishment. We thus should ask what measures can be adopted that
135
will minimize the influence of these factors when assessing claims of

wrongdoing.
On this analysis, the two theses reviewed in the previous section have
a critical, but negative, significance. The fact that someone has a certain
skin color should have no bearing on questions having to do with pun-
ishment. Similarly, a person’s wealth (or lack thereof ) should have no
bearing on decisions about punishment. It might be thought that the
Constitution makes it possible to address these issues without having to
rely on the concept of justice, for the Fourteenth Amendment’s equal
protection clause can reasonably be said to prohibit decision-makers
from considering extraneous factors such as race and class when dealing
with criminal cases. But here, as elsewhere, judicial interpretation of the
text has not ensured the full measure of justice. It’s essential, then, to
consider what further steps should be taken to promote fairness in the
system of state-administered punishment.
Minimizing the Ill Effects of Indigence. It’s helpful to start by think-
ing about indigence. This is because poverty, not race, is the key factor
in determining a defendant’s access to justice in the post-Jim Crow era.
With equality as our concern, we need not ask whether the actual rights
recognized in the American legal system—rights to confront witnesses,
to be free of compelled self-incrimination, to a jury trial, etc.—are
essential to justice. We need only ask whether defendants have an equal
chance to avail themselves of those rights. In Gideon v. Wainwright, a
1963 case, the Supreme Court took an important step toward insuring
that indigent defendants can make full use of their legal rights by hold-
ing that such defendants are entitled to state-subsided representation
when charged with a felony.16 The Court, however, has not extended
the right of indigent representation as far as is necessary to ensure full
access to justice, nor has it insisted on adequate funding even in those
settings where the right is now constitutionally recognized. The Court’s
holdings allow for constitutionalized injustice, in other words—and so
are subject to criticism from the standpoint of justice.
Consider first the limited reach of the right to counsel for indigents.
Gideon applied to felony charges. It was later extended to misdemeanors
that can result in incarceration.17 The Court has declined to extend the
right further, however. If an indigent defendant faces the prospect of a
136
W. C. Heffernan
criminal fine rather than imprisonment, for example, that defendant

has no constitutional right to counsel.18 This is surely unacceptable as a
matter of equal justice. Because prosperous defendants are able to secure
counsel to defend themselves against minor criminal charges, equal justice
requires that the indigent be provided with the resources to do so as well.
Now consider the scope of funding for the indigent’s right to rep-
resentation. Although the state pays for counsel in felony and misde-
meanor cases, it doesn’t provide sufficient resources to ensure that all
indigent defendants can assert their right to a trial. It has to be granted,
of course, that some indigent defendants may prefer to plea bargain
than assert their right to a trial, for in entering into a plea bargain
defendants (whether prosperous or indigent) typically agree to plead
guilty to a lesser charge than the one initially brought against them.
But this is beside the point when equal justice is at stake. Rather, what
matters in this context is that indigent defendants should confront
approximately the same resource-constraints as prosperous ones when
deliberating about whether to exercise their trial rights. In addressing
this question, courts should ask about outcomes—that is, they should
ask whether indigent defendants exercise their trial rights at the same
rate as prosperous ones. In those jurisdictions where this turns out
not to be the case, more money must be provided the offices of pub-
lic defenders. It isn’t sufficient, in other words, to guarantee indigent
defendants a right to counsel if the limited resources provided the
offices of public defenders lead lawyers in those offices to pressure their
clients to enter guilty pleas. Although the Constitution hasn’t been
interpreted to require this, the principle of equal justice requires pro-
vision of resources that will lead defendants to make financially uncon-
strained choices about whether to plead guilty.
Minimizing the Ill Effects of Racial Prejudice. As already noted,
there’s an important sense in which proponents of the new Jim Crow
thesis don’t go far enough, for they criticize racial bias in the adminis-
tration of criminal prohibitions on drugs when they could sidestep the
issue of prejudice altogether by advocating elimination of those laws.
There’s another sense, though, in which they go too far, for they fail to
distinguish adequately between racial prejudice in dealing with drug
crimes and such prejudice in dealing with violent crime. There is of
137
course no doubt about the need for laws that deal with the latter type of
crime, so it’s here that questions about bias in the application of the law
matter a great deal, for although it’s clear that someone who commits a
violent crime should be eligible for punishment, it’s also clear that race
should not play a role in resolving questions about guilt or in deciding
how much punishment should be imposed on those found guilty.
To minimize the effect of racial bias, one has to focus on the role of
discretion in criminal justice. The term discretion refers to the author-
ity vested in decision-makers to select from a range of options when
addressing an issue. The alternative to discretion is a mandate—i.e., a
rule that requires a specific response once something has been found to
be the case. Mandates reduce the opportunity for decision-maker bias.
They do so, however, by denying those with authority the opportunity
to tailor their responses to the specific features of a problem. Discretion,
in contrast, allows for a factor-specific response, but because it does so
discretion makes it possible for decision-makers to act on bias. Indeed,
grants of discretion facilitate the exercise of disguised bias, for once a
decision-maker possesses the authority to select from a range of options
when resolving an issue, that person can cite reason X in justifying her
conclusion even though she relied on unstated reason Y in reaching it.
These general points are pertinent to questions about the influence
of racial prejudice in criminal justice. There are three key types of deci-
sion-makers—prosecutors, jurors, and judges—vested with discretion
in settling on punishments. Prosecutors exercise discretion in making
charging decisions; they also make important discretionary decisions
concerning jury selection, and they can accept or reject guilty pleas.
Jurors exercise discretion concerning guilt and innocence; in capital
cases they also have discretion whether to impose the death penalty.
Judges exercise discretion concerning the admission of proffered evi-
dence. Moreover, in those cases where jurors don’t have the authority to
decide, judges exercise discretion about guilt and about the punishment
to be imposed on convicted defendants.
Do the decision-makers in criminal justice exercise discretion in a
racially biased way? The days of actual Jim Crow laws are long gone, so
there are no contemporary cases in which the answer to this is clear-cut.
In thinking about the possibility of racial bias, we can, however, locate
138
W. C. Heffernan
opportunities for biased discretionary decision-making. One of these

has to do with prosecutors’ use of peremptory challenges in the selec-
tion of jurors—i.e., challenges that do not have to be made for cause
(as when a potential juror might have a financial stake in the outcome
of a case) but that can instead be made because a party has a hunch
a potential juror might not be favorably disposed to his claims. Prior
to the 1980s, peremptory challenges were purely discretionary. Though
limited in number for any given case, a party could use them to dis-
miss a potential juror and not have to explain the reasons for dismissal.
The Court altered the rules for challenges in Batson v. Kentucky, a
1986 case, where it held that prosecutors who engage in a pattern of
dismissing potential black jurors when a defendant is also black must
provide convincing race-neutral reasons for their exercise of peremptory
challenges.19
Does Batson go far enough? Does it minimize the ill effects of racial
bias in prosecutors’ discretionary decision-making? There is good rea-
son to believe that racial animus remains present, as evidenced by
post-Batson cases in which the Court has intimated that prosecutors
have disguised the exercise of racial bias when explaining their use of
peremptory challenges to dismiss blacks from jury service.20 In gener-
alizing on these cases, we can say that Batson illustrates how pockets of
discretionary authority make it possible for prejudice to persist in crim-
inal justice. Should the law go further—that is, should discretionary
authority be minimized even more, with the result that the opportunity
for disguised racial bias is reduced as well? A qualified yes is in order as
far as jury selection is concerned, for the value of peremptory challenges
seems slight by comparison with the importance of limiting the oppor-
tunity to act on prejudice. An unequivocal answer isn’t warranted even
in this context, however, for there is surely some value in allowing the
prosecution to act on hunches unrelated to race in deciding whether to
challenge someone who might serve on a jury.
An even more difficult tradeoff between discretion and prevention
of possible racial prejudice arises in cases involving juror decision-mak-
ing concerning punishment. There is reason to worry that racial bias
infects all discretionary decisions about the amount of punishment to
be imposed for violent crimes. But because research on this issue has
139
concentrated on death penalty cases, it’s best to limit our attention to

this kind of punishment. Modern researchers have demonstrated that,
when vested with discretion to impose the death penalty, jurors rarely
make biased decisions based on the race of the defendant in a case.
On the other hand, researchers have shown that there is strong reason
to suppose that jurors impose the death penalty more heavily on black
than white defendants when the victim is of the opposite race. That is,
contemporary studies provide statistical evidence in support of a race-
of-victim hypothesis concerning the exercise of juror bias: they indicate
that, when culpability factors are held constant, jurors tend to impose
harsher penalties on black defendants who kill white victims than they
do on white defendants who kill black victims.21
In race-of-victim discrimination cases, we thus have to consider a
stark tradeoff between discretion and the possibility of racial bias. When
confronted with this tradeoff, the Supreme Court opted, in McCleskey v.
Kemp, a 1987 case, for a rule that allowed broad juror discretion rather
than a rule that minimized the possibility of racial bias. “[T]he jury’s
function [is] to make the difficult and uniquely human judgments that
defy codification,” the McCleskey Court remarked, “and that ‘buil[d]
discretion, equity, and flexibility into a legal system.’”22 On the Court’s
analysis, this discretionary avenue to equity and flexibility is so valuable
that it overrides clear-cut evidence that juries exercise their authority in
capital cases in a way that favors white over black defendants.
This is a troubling conclusion. Nonetheless, it might be defended on
the ground that the jury’s role in criminal justice is so important that no
interference with its prerogatives is ever warranted. If one were to take
this position, though, one would still have to consider the stark find-
ing that gave rise to the case—that jurors tend to use their discretion in
ways that favor white over black defendants when the victim is of the
opposite race. The problem with the conclusion reached in McCleskey,
one might say, is not that the Court declined to rein in juror discretion
but that it did nothing else to address the ill effects of racial bias in the
exercise of discretionary authority.
In building on this point, one might say that it’s important for dis-
cretion to continue to be exercised in criminal justice, but that it’s
also important to narrow the range in which it’s exercised by placing
140
W. C. Heffernan
caps on the amount of punishment to be imposed. As far as murder

is concerned, this might mean that a relatively small number of hom-
icides—the “worst of the worst,” as some commentators have put it—
would be eligible for the death penalty. Alternatively, it might mean
that no homicides should be death-eligible. On this latter analysis, the
death penalty should be abolished not because it’s intrinsically wrong
to execute offenders but because the risk of bias in the administration
of capital punishment is incompatible with the principle of equal jus-
tice. Given the arguments advanced in the prior chapter, the latter
position is clearly preferable, for the death penalty has the effect of
denying (indeed, eliminating) the humanity of the person on whom it’s
imposed. That the death penalty’s administration may well rely on racial
bias is simply another reason for casting it aside.
But whichever alternative is adopted for administration of the death
penalty, one can discern in the argument just considered a more general
approach to the exercise of discretion, an approach that links it to caps
on punishment. The greater the discretion vested in any criminal justice
decision-maker when called on to impose punishment, one might say,
the stronger the reason to place a ceiling on the amount that can be
imposed. In taking this position, one allows for the inescapability of dis-
cretion in resolving individual cases. However, one emphasizes as well,
as the Court did not in McCleskey, that someone exercising discretion-
ary authority can disguise his or her actual bias and so can undermine
the principle of equal justice. Because this risk is always present, there
are sound reasons for legislatures to place stringent upper limits on the
amount of punishment appropriate for a given crime—and sound rea-
sons for courts to scrutinize severe sentences for the possible exercise of
bias. Moreover, given the threat of biased decision-making, it would be
wise to rely on outside experts to monitor the exercise of discretion by
key actors in the criminal justice system. Remedies such as these come
to terms with the need to individualize responses to wrongdoing. At the
same time, they establish procedures for overseeing the discretion essen-
tial to the process of individualization.
141
Notes
1. See Roy Walmsley, World Prison Population List 1 (8th ed., 2009).
2. See Ann Carson, Bureau of Justice Statistics: Prisoners in 2015 6.
3. See https://www.census.gov/quickfacts (July 1, 2016) (Blacks: 13.6%,
Hispanics: 17.8%).
4. See Bruce Western, Punishment and Inequality in America 25–27
(2006).
5. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of
Colorblindness 4 (rev. ed., 2014).
6. Dorothy Roberts, “Constructing a Criminal Justice System Free of
Racial Bias: An Abolitionist Framework,” 39 Columbia Human Rights
Law Review 261, 263 (2007).
7. Graham Boyd, “Collateral Damage in the War on Drugs,” 47 Villanova
Law Review 839, 845 (2002).
8. Public accommodations that segregated people on the basis of racial
distinctions were upheld as constitutional in Plessy v. Ferguson, 163 U.S.
537 (1896).
9. See Carson, supra note 2, at 5.
10. In one notorious instance, a sheriff’s deputy openly testified to his reli-
ance on force for purposes of preserving racial subordination. See Brown
v. Mississippi, 297 U.S. 278, 284 (1936), quoting a deputy’s testimony
concerning the number of whippings he had administered to extract
a confession from a black defendant: “Not too much for a negro,” he
stated, “not as much as I would have done if it were left to me.”
11. For a case involving police violence against a Hispanic defendant, see
Rochin v. California, 342 U.S. 165 (1952), which was concerned with
warrantless invasion of Antonio Rochin’s home and police reliance on a
stomach pump to retrieve drugs the defendant had swallowed.
12. Alexander, supra note 5, at 210.
13. For a summary of current findings, see Bernadette Rabuy and Daniel
Kopf, Prisons of Poverty: Uncovering the Pre-incarceration Incomes of the
Imprisoned (2015) at https://prisonpolicy.org/reports/income.html.
14. For an argument that capitalist elites rely on crime control to preserve
their social position, see Richard Quinney, Critique of the Legal Order:
Crime Control in Capitalist Society, Chapter 4 (1974).
142
W. C. Heffernan
15. The social justice/criminal justice thesis summarized here is a composite

of numerous arguments that emphasize the connection between class
and criminal justice. For a sample of specific arguments drawn together
for purposes of this composite, see Barbara Hudson, “Punishing the
Poor: Dilemmas of Justice and Difference,” in William Heffernan and
John Kleinig, eds., From Social Justice to Criminal Justice: Poverty and
the Administration of Criminal Law 189 (2000); George Wright, “The
Progressive Logic of Criminal Responsibility and the Circumstances of
the Most Deprived,” 43 Catholic University Law Review 459 (1994);
Richard Delgado, “Rotten Social Background: Should the Criminal
Law Recognize a Defense of Severe Social Deprivation?” 3 Law &
Inequality 9 (1985).
16. Gideon v. Wainwright, 372 U.S. 335 (1963).
17. Argesinger v. Hamlin, 407 U.S. 25 (1972).
18. See Scott v. Illinois, 440 U.S. 367 (1979).
19. Batson v. Kentucky, 476 U.S. 79 (1986).
20. See, e.g., Snyder v. Louisiana, 552 U.S. 472 (2008).
21. See David Baldus and George Woodworth, “Race Discrimination and
the Legitimacy of Capital Punishment: Reflections on the Interaction
of Fact and Perception,” 53 DePaul Law Review 1411, 1425 (2004).
22. McCleskey v. Kemp, 481 U.S. 279, 311 (1987), quoting Harry Kalven
and Hans Zeisel, The American Jury 498 (1966). The data concern-
ing race-of-victim disparities in capital sentencing considered by the
McCleskey Court were compiled by Baldus and are summarized in the
article cited in supra note 18.
Afterword
The origins of criminal justice are to be found in an intensely personal

emotion—in the sense of grievance virtually everyone experiences on
being harmed by someone else. When harm occurs, there’s an impulse
to get even: to correct things by striking back at the person who has
ruptured the status quo. The eye for eye, tooth for tooth passages of the
Old Testament speak to this elementary—indeed, elemental—point.
They underscore the importance of negative, as well as positive, reci-
procity. They demonstrate, in other words, that we’re inclined not only
to “return the favor” when people are kind to us but also when they
injure us.
But while criminal justice originates in a primitive urge to get even, it
has evolved in a way that tracks the development of collective life. The
eye for eye, tooth for tooth framework that Moses announces in the Torah
came at an early stage in this process of social evolution. It unmis-
takably permits injured parties to seek revenge for injuries suffered,
but it also places a communal limit on the amount of harm that can
be inflicted by way of response—not two eyes for one that was taken,
but rather one for one. Further communal limitations were included at
later stages in the development of communal life. The crude concept
of injury yielded to the subtler one associated with wrongdoing, with
© The Editor(s) (if applicable) and The Author(s), under exclusive license 143
to Springer Nature Switzerland AG 2019
https://doi.org/10.1007/978-3-030-12782-4
144
Afterword
the result that culpability came to be understood as a prerequisite for

criminal liability. The eye for eye emphasis on equivalence also yielded to
the more amorphous principle of proportionality, with the result that
punishment became less sanguinary. And the state came to be under-
stood as the surrogate for victims of wrongdoing, with the result that
the impulse to get even was channeled through government institutions
that speak not only for individual victims but also for the community
at large. These changes have taken place over millennia. To say, as one
reasonably can about current institutions, that the term justice is appro-
priate when talking about criminal justice is to endorse a process of
long-term evolution in which self-help has been superseded by institu-
tions in the effort to get even.
This book has traced the evolution of criminal justice institutions
and has also proposed a framework for thinking about criminal justice
as a component of the more general concept of justice. In addition, it
has applied that framework to contemporary issues. Its analysis of these
issues relies on the claim that the Constitution, as interpreted by the
courts, imperfectly protects the just claims of citizens against the gov-
ernment. We have seen that even though the Supreme Court has never
commented on the subject, there are sound reasons, grounded in jus-
tice, not to punish people for consuming drugs. We’ve also seen that,
despite judicial silence on the subject, there are strong reasons for may-
ors and police executives to limit the scope of stop and frisk, in particu-
lar to limit this as applied to minority communities. And we have also
seen that judicial interpretation of the Fourteenth Amendment doesn’t
adequately protect members of racial minorities against the exercise of
bias by key decision-makers in the criminal justice system such as jurors
and judges. The Constitution’s preamble commits the federal govern-
ment to the promotion of justice. Although judicial interpretations of
this commitment further it in many respects, others can be criticized for
falling short, thus making it essential to rely directly on the concept of
justice to fulfill the promise contained in the preamble.
Index
A C
Alcohol possession as a crime 84, Campbell, James 55, 56
86–90. See also Prohibition Clarke, R.V.G. 36
Alexander, Michelle 127, 131–132, Class 129, 132–134, 142
141 cocaine 90, 91
Alito, Justice Samuel 106–107 Coke, Edward 79
alternative dispute resolution 117 Colorado
Assize of Clarendon 63 legalization of recreational mari-
Axelrod, Robert 55 juana 88
Consensual sodomy as a crime 84
Constitution (American) xi, xii, 32,
B 83–86, 90, 96, 97, 100, 104,
Baldus, David 142 108, 112, 115, 119, 120, 122,
Batson v. Kentucky 138 123, 135, 136, 144
Beccaria, Cesare 72–77, 79 the possibility of a justice deficit 97
Bias 130–132, 136–140 criminal justice ix, x, xi, xii, 16, 17,
Binder, Guyora 36 19–21, 23–25, 29–35, 34, 40,
Bloomberg, Mayor Michael 100–102 41, 48, 59–77, 83, 89, 95, 96,
Boyd, Graham 128 113, 120, 127–134, 137–140,
Breyer, Justice Stephen 125 142
© The Editor(s) (if applicable) and The Author(s), under exclusive license 145
to Springer Nature Switzerland AG 2019
https://doi.org/10.1007/978-3-030-12782-4
146
Index
defined 29 discretion 100, 137–140

pure criminal justice model defined 137
defined 63 juror discretion 139
retail vs. wholesale approaches to prosecutorial discretion 132, 137,
130–134 138
social justice/criminal justice thesis disparities in punishment for similar
132–134 acts of wrongdoing 77
surrogacy theory of state’s role in gender disparities 130
xi, 31–32 racial disparities 97, 131
Criminal justice model 40, 41, 61, Dolovich, Sharon 125
62, 65–67, 69, 70, 75–77 Douglas, Justice William 99
criminology x, xi drug possession 84
culpability 20, 24, 49, 63, 67–72, Drugs 86–92
112, 113, 116
E
D egoism, ethical 11
damages, compensatory 27, 52, 63, 69 Eisner, Manuel 78
dangerousness 23, 71 Eligibility for punishment principle
preventive strategies for containing 26, 84, 85
it 23–24 Equality considerations pertinent to
death penalty 72–73 criminal justice 139–140
and the mentally retarded 118 classism, criminal justice, racism
prohibited for adolescents 118 and sexism 129
prohibited for rape 85 Equal treatment 134
racial disparities in its administra- Equivalent payback 26, 43
tion 139–140 Evaluation of conduct xi, 4
sanguinary punishments 72–73 Exodus 18
De Blasio, Mayor Bill 101
decriminalization 83–92
degradation, as an effect of punish- F
ment 115 Fair terms of cooperation x, 3, 6, 8,
emotional degradation 115 12, 15, 19, 22, 25, 28, 31
deterrence 27–29, 52, 73–75 Fair warning principle 32
as a consideration pertinent to Feinberg, Joel 12, 13, 94
repeat offenses 119–120 Felson, Marcus 35
as a subordinate consideration feuding 44–55
pertinent to punishment 28 Frase, Richard 125
defined 28
Index
147
G The new Jim Crow thesis

Gauss, Gerald 13 128–132
Gideon v. Wainwright 135 Jones v. United States 105
Global Positioning System (GPS) justice ix, x, xi, 3–12, 15–17, 22,
105 25, 29, 32, 41, 59, 76, 96, 97,
Gouldner, Alvin 33 128, 144
Grievance 15–20, 26, 27, 29–31 a concept that makes possible
grievance redress criticism of the social order 5
criminal justice model 59–75 defined:the fair terms of coopera-
retaliation model 42–54 tion 3, 89
table of models 40 if … then quality 5
injustice of punishing acts that
aren’t wrongful 85
H
Hammurabi, Code of 18
Hampton, Jean 36 K
harm to self/harm to others 89–90 King’s Peace 63
Hart, H.L.A. 12
Husak, Douglas 93
Hyams, Paul 56 L
Langbein, John 78
Leviticus 18
I lex talionis 17–22, 25, 26, 30, 35,
impartiality ix, x, 16, 26, 32, 60, 66, 39–43, 51, 52, 68, 69, 71,
77 112, 113, 115, 116
principle for imposing punish- Locke, John 36
ment 25 L.S.D 91
indigence and criminal justice
135–137
injury 15–20, 22, 27, 40, 43, 44, M
48–51, 53, 54 MacCoun, Robert 94
distinguished from wrongdoing Maitland, Frederic 78
49–50 marijuana 90, 91
insanity defense 70 mass incarceration 119
and race 77
Matthew, Gospel according to 21
J McCleskey v. Kemp 139
Jesus 20–21 Mill, John Stuart 93
Jim Crow system of racial misdemeanors 68
subordination 128 Monahan, John 36
148
Index
Montesquieu, Charles de Secondat defined 24

72–75, 79 distinguished from retaliation 39
Moses 17, 18 eligibility for 26, 84–86
Motivation/motivational deficit 11, 12 and forgiveness 114
lenity 76
proportionality considerations
N relevant to 117
Navarette v. California 100 retributive justification for 27, 73
negative reciprocity 3, 17–18, 20,
22–23, 25, 28, 34, 62, 65
Nietzsche, Friedrich 34 Q
Quinney, Richard 141
O
obligations 4–12, 15. See also rights R
O’Connor, Justice Sandra 119 Race 128, 129, 131, 132, 134, 135,
ordeal as a trial procedure 64 137–139
Ramsey, Carolyn 78
Rawls, John 13, 34
P Reciprocity 3, 5, 17, 18, 20, 22. See
Petersilia, Joan 94 also negative reciprocity
Player, Candace 36 Redressing grievances 17, 40, 59
Plucknett, Theodore 56, 78 Restorative justice 117
Poggi, Gianfranco 78 Retail vs. wholesale approaches to
Police 95–108 criminal justice 130
Preamble 144 Retaliation model 39–42, 50, 61, 66
Prison 118, 120–123 retaliation, pure model of 42–43
Prohibition 87–90 defined 43
Prophylactic criminal legislation Retribution 27, 74, 75, 124
88–89 Revenge ix, 40, 41, 43, 53
Proportionality 24, 40, 71–74, 113, rights ix, xi, 3–7, 9–11. See also
117–119 obligations
prosecutorial function 64–66. See method for identifying 6–8
also discretion, prosecutorial partial inventory 10–11
discretion Roberts, Dorothy 128
punishment 16, 17, 20, 23–32, 39,
40, 50, 51, 62, 63, 69–71, 74,
76, 111–116, 122, 124. See S
also state-imposed punishment Sabbath travel as a crime 84
and deterrence 28 Salvinorin A 91
Index
149
Sanguinary punishments 116 T

Scalia, Justice Antonin 105, 108 Terry v. Ohio 97–99
searches, dragnet 95 tort, distinguished from crime 51,
Sermon on the Mount 20–22 68–69
Smith, Nicholas 36 turn-the-other-cheek 20, 25
social control x, 127–129
Jim Crow as a system of social
control 128 V
preventive detention as social veil of ignorance 8–11, 13, 19,
control 133 22–24, 29, 34, 35
social order, problem of 41, 44 victims of aggression 66
state x, xi, xii, 7, 9, 16, 17, 25, 29,
30, 32, 40, 44, 62, 64–67, 76,
83–92, 95, 96, 103, 111, 115, W
123, 131, 134 Washington (state)
defined 29 legalization of recreational mari-
enhanced surrogacy role for ado- juana 88
lescents 88–89 Weber, Max 36
modern state 62–63 wergild 51–53, 65
surrogacy role in criminal justice Western, Bruce 141
31–32, 75–77, 91 wrongs and wrongdoing x, xi, 6, 16,
state-imposed punishment 111–124. 21–23, 25, 26, 30, 32
See also death penalty distinguished from dangerousness
carceral responsibility of state and wrongdoing 71
120–124 distinguished from injury 49–50
forgiveness 114 personal vs. public wrongs 68–69
offense/sanction nexus 114
Stop and frisk 97–103
strict liability 71
Surrogacy theory of criminal justice
xi, 32
Surveillance 96, 97, 103, 105
surveillance by the police 102–107

Rights and Wrongs: Rethinking The Foundations of Criminal Justice

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Rights and Wrongs: Rethinking The Foundations of Criminal Justice

Uploaded by

Copyright:

Available Formats

CRITICAL CRIMINOLOGICAL PERSPECTIVES

More information about this series at

Rights and Wrongs

Critical Criminological Perspectives

Library of Congress Control Number: 2019930830

Part I From Retaliation to Criminal Justice

1 Thinking About Justice 3

2 Thinking About Criminal Justice 15

3 Redressing Grievances: The Retaliation Model 39

Moving Away from the Pure Retaliation Model:

4 Redressing Grievances: The Criminal Justice Model 59

Part II Taming the Power of the State

6 Policing the Police 95

7 State-Imposed Punishment 111

8 Equality: Racial and Class Disparities in State-Imposed

Table 3.1 Two models of grievance-redress 40

Is criminal justice a genuine component of justice? Is the word justice

is no mere coincidence. Instead, it suggests that fair treatment of those

(an evaluative concept grounded in notions of fairness and individual

burdens in sentencing. It’s only by addressing issues such as these (issues

© The Author(s) 2019 3

agreement to maintain the silverware. Although the amount of work

we’re concerned with behavior that violates rights. We rely on a con-

management has a legal obligation to sort out garbage when placing

Reasoning from this perspective, someone would say that there

Veil-of-ignorance reasoning is also essential to justifying rights con-

rights are not some esoteric construction of otherworldly philosophers,

The discussion so far has touched only indirectly on questions about

© The Author(s) 2019 15

rules applicable to all persons within a given jurisdiction. Criminal jus-

The Lex Talionis Framework of Negative

Modern research has established that these commands, which have

ledger victims maintain when thinking about what they’ve suffered at

possibilities, an impartial observer would conclude that the brute fact

The Possibility of Dispensing Entirely

this option in the abstract, we can instead examine a specific argument

If one thinks in terms of rights of personal security, one might say

something roughly comparable. Because it fails to insist on this condi-

might conclude that this trade-off is never acceptable. Predictions of

Negative Reciprocity Once Again: Impartial

A closely related feature of fair punishment has to do with the impar-

of degrees (intentional harm is more wrongful than reckless harm, for

for conducting communal life, for punishment is something people

stable fair cooperative activity. But because deterrence can be pursued

concede to others the authority to punish them, for punishment is

justified on an on balance basis. In contrast, any justification of state

… requital and exchange under the presupposition of an approximately

6. Although the argument presented in this paragraph relies on the

right of self-defense. Even the more modest specification of the scope

© The Author(s) 2019 39

another member of that tribe once the retaliator is able to point to an

Table 3.1 Two models of grievance-redress

revenge. The factor essential to our analysis is the profound reluctance

The Pure Retaliation Model

authoritative communal institution but perhaps embedded in com-

tit-for-tat—continues to exist in the present day. Some feuds erupt in

Moving Away from the Pure Retaliation Model:

that divide the disputants. As noted earlier, there are no documents

even decades, might pass between eruptions of violence).8 And the

be impartial arbiters on behalf of the common good. But as will also

community. In some respects, the degree of restraint demanded by

but essential to modern notions of liability) that injuries can occur in

Table 3.2 Distinguishing between different types of injuries

Table 3.1 Two models of grievance-redress 40

The Lex Talionis Framework of Negative

The Possibility of Dispensing Entirely

Table 3.1 Two models of grievance-redress

Moving Away from the Pure Retaliation Model:

Table 3.2 Distinguishing between different types of injuries

The Possibility of Taming State Power

The Eligibility Principle and Decriminalization

Table 6.1 Stop and frisk in New York City

Systematic Surveillance of Behavior

Whether, What Kind, and How Much