Some Institutional Limits to Justified Punishment
This paper is a work in progress. Please do not cite without authors’ permission.
Daniel J. D’Amico
Visiting Professor of Political Science
The Political Theory Project
Brown University
Daniel_Damico@brown.edu
and
Adam Martin
Assistant Professor
Department of Agricultural and Applied Economics
Texas Tech University
adam.martin@ttu.edu
Abstract:
We accept communicative justifications for criminal punishment on public reason
grounds, but notice akin to other paradigms, communications require some commitment
to proportionality. Ideally, communicative punishments convey societal values regarding
the immorality of criminal behavior in so far as social preferences are justly reasoned and
proportionately gauged. In reality, democratic institutions imperfectly reflect public
opinions. Whereas punishment institutions are typically presumed the necessary and
proper role of state-authority, less attention has been paid to how the organization of state
institutions may relate to complex processes of knowledge and incentive coordination
required to maintain proportionality. We investigate theoretical and empirical research
regarding the relationships between different social institutional arrangements, various
organizational forms, crime, punishment, and error outcomes. Given available theory and
evidence, we consider the possibility that justified proportionality may rely upon some
degree of institutional decentralization. Some policy implications are inferred.
I.
Introduction
Significant debate persists regarding the proper normative justifications for
criminal punishments (Berman, 2008). Different paradigms herald different values for
alternative reasons. Full normative certainty or universal consensus is unlikely and
perhaps impossible, but also probably unnecessary for the development of some
meaningful insight(s). While individual paradigms are supported by a variety of
sometimes-conflicting reasons, areas of common ground do exist. For example, today’s
dominant perspectives commonly agree that legal punishments cannot be sufficiently
justified on purely consequentialist or retributivist grounds (Bedau and Kelly, 2010; Duff,
2013).
The related techniques of justificatory liberalism (Quong, 2013) and public reason
(Vallier and D’Agostino, 2013) suggest building upon consensus areas as normative
foundations to better cope with conflicting perspectives (Gaus, 1996, 2011). Developing
justifiable rules for a community of free and politically equal people, requires the
provision of reasons those sorts of sometimes-disagreeing citizens would commonly
accept.1 In this vein, we aim to investigate what criminal punishment institutions are
publically justifiable for a free society.
While purely consequentialist and retributivist frameworks are insufficient
(Dubber, 1996), a communicative paradigm seems more justifiable in so far as criminal
citizens are treated as moral and political equals in the deliberative process of
1
Similar attempts to approach punitive justification through the avenue of political theory include but are
not necessarily limited to Rawls (1955), Nino (1983, 1989, 1996), Braithwaite and Pettit (1990), Greiff
(2002).
1
institutional choice (von Hirsch, 1993; Duff, 2001, 2013).2 Communicative punishment
also appeases some of the most reasonable values held by alternative paradigms. We
accept communication as the perhaps strongest foundation available but notice like other
paradigms it requires some commitment to proportionality.
If gauged disproportionately, punishments fail to convey justly reasoned messages
of social condemnation and inhibit the opportunities of criminals to participate in
deliberative justice and or restoration; hence disparate processes and outcomes lose
consent from reasonable citizens. In so far as disproportionate communications can
invoke unintended consequences and undeserved suffering; they also cease to appease
reasonable standards from alternative paradigms. Thus the proportionality principle
consistently relates to several punitive standards and should play some significant role in
public justification.
In simplest terms, proportionality calls for punishments to be well–fitted to the
crimes they refer, and individuals be treated equally before the law.3 Menial crimes
should not be awarded extreme punishments, just as heinous crimes ought not to be
ignored. At the societal level, a justified punishment scheme must aim to somewhat
accord with the punitive preferences of citizens given some pattern of criminal severity.
Lastly, justice procedures should not be biased for arbitrary reasons such as social status.
Hence societies with similar values and criminological trends ought to host comparable
punitive processes and outcomes presuming other things constant.
2
What we term a “communicative theory,” has also been referred to as “moral education” (Hampton, 1984;
Murphy, 1985) or “expressionist” (Feinberg, 1970; Greiff, 2002), with some meaningful distinctions but
none particularly critical to our discussion.
3
On proportionality see: Frankel (1972), Davis (1983), Bedau (1984), von Hirsch (1991), von Hirsch and
Jareborg (1991), Ashworth (2000), Duff (2001), Ryberg (2004), von Hirsh and Ashworth (2005).
2
Proportionality poses unique practical challenges relative to other punitive
standards because of the complex nature of knowledge and incentive coordination needed
for discerning societal preferences, calculating punitive ratios, and allocating resources
proportionately. Knowing with certainty what are the justified punishments for different
crimes throughout society, requires in part knowing the contextual, inter-dependent, and
subjective tastes, preferences, moral values, and lived experiences of diverse citizens. No
particular individual can objectively deduce this just spread of punishments across
society, precisely because they lack knowledge of the perceived experiences of diverse
victims and criminals. In practice, this complex array of societal values must be
simplified through some institutional process and technological rubric for punishments to
be produced and applied. Hence any such institutional and technological arrangement
will entail some degree of error and or potential manipulation by private or political
interests away from ideal justice.
Most philosophical efforts have focused upon the justifications for criminal
punishments, and particularly the proper role of collective state action,4 yet very little
attention has been paid to how differently-organized state institutions can effectively
address such logistic, epistemic, and motivational challenges.5 Rawls (1971, p. 57)
explains,
“[i]n designing and reforming social arrangements one must, of course,
examine the schemes and tactics it allows and the forms of behavior which it tends to
4
Samuelson (1964), McKenzie and Tullock (1975), Landes and Posner (1975), Cowen (1992) represent the
basic economic perspective that the logistic qualities of security require public financing and management.
George (1993) implies the moral nature of social censure and punishment are uniquely reserved to state
authority.
5
Attending to such compliance problems when choosing between principles of justice are what Pennington
(2003, 2011) refers to as the “robust political economy,” approach. See also: Schmidtz (1996, 182-3) and
Boettke and Leeson (2004).
3
encourage.”6 While the precise details for how society ought to justly arrange punishment
resources remains perhaps unknowable with normative certainty, some institutional
arrangements may be more compatible with justifiable processes and outcomes than
others. More specifically, some organizational features of institutions may better lend
themselves to the knowledge, incentives, and feedback required to produce and maintain
proportionality than others.
Institutions (defined loosely as rules and enforcements) shape individual
behaviors throughout society. Hence certain institutional forms and organizational
patterns thereof empirically relate to particular social trends. For example, relatively free
economies foster higher rates of trade, investment, and wealth accumulation over time.7
Certain organizational patterns of those institutions relevant for trade assist decisionmakers by coordinating otherwise complex and indiscernible forms of knowledge into
meaningful signals and actionable incentives (North, 1990). Profits for example,
calculated in monetary units and expressed in market prices, inform producers and
consumers how much, of what type, when, where, and to whom resources are needed and
valued. All without direct knowledge of the precise value matrices held within the minds’
eyes of diverse individuals. Any single decision is likely prone to error, but prices
sufficiently convey knowledge and harness incentives to provide feedback and corrective
6
Rawls (1993, p. 418) also explains, “we look to the constitutions of democratic societies, make a list of
the liberties normally protected, and examine their role in democracies that historically have worked well,”
as a critical step in developing a justified political system.
7
La Porta et al. (1999) write, "Good government has been shown to contribute to the economic
development of European countries over the last millennium (North, 1981; De Long and Shleifer, 1993), to
growth across countries over the last 40 years (Knack and Keefer, 1995; Mauro, 1995; Easterly and Levine,
1997), and to the successful transition from socialism to capitalism (Weingast, 1995; Johnson et al., 1997)."
Acemoglu et al. (2001, p. 1369) survey North and Thomas (1973), Jones (1981) and North (1981)
suggesting national performance follows from institutional arrangements encouraging investment in human
and physical capital. Knack and Keefer (1995), Hall and Jones (1999) and Rodrik (1999) offer empirical
support for private property rights regimes.
4
guidance thus maintaining proportionate rates of material production, distribution, and
consumption throughout society and over time. The decentralized nature of competitive
market prices well-accords to the structurally dispersed qualities of societal tastes and
preferences enough to inform and motivate actors in ways unrealizable by institutions
organized via centralized authority or constructivist design (Hayek, 1945).
A justified punitive system reflects social preferences only in so far as public
opinions are reasonable. Since Feinberg (1988), most infer a significant role played by
the harms caused from crime when legitimizing punishment. In so far as any matrix of
punitive severities must be informed by some proxy of criminal severity, and criminal
severity is understood as some function of harm caused to victims and or society;
reasonably-gauging punishment magnitudes in part requires a similar socially epistemic
process as economic calculation. Social values regarding the harms of criminal behavior
and the values of punitive responses must be discerned, assessed for legitimacy,
practically implemented by some calculative institutional technology, and lastly updated
through time via informational and incentive feedback.
Punitive strategies such as monetary fines, sentencing grids, time-based
incarceration and or parole, all possess some degree of calculational precision, but they
are neither informed by comparably meaningful or accurate tacit knowledge as real
market prices, nor are they supported by complementarily organized institutional
processes to foster informational feedback or incentive alignment as prices, private
property rights, and profit and loss mechanisms provide in market contexts. While several
punitive philosophers make explicit the need for punitive magnitudes to operate
calculationally akin to market prices (Davis, 1983; von Hirsch and Jareborg, 1991),
5
almost no attention has been paid to the potentially pre-requisite organizational features
of criminal justice institutions, or the efficacy of mechanisms therein for informational or
incentive feedback, to operate comparably to market prices.8
We investigate research surrounding the relationships between the organizational
features of social institutions on the one hand, and the outcomes of crime and punishment
on the other. First, a variety of theory and evidence suggests that decentralized or
polycentric social systems possess unique qualities of informational discovery and
competitive incentives to better foster error correction and evolutionary adaptation
through time relative to hierarchically organized alternatives. Second, structural
asymmetries in the costs of erroneous severity relative to leniency suggest that reasonable
citizens would likely prefer and consent to institutional arrangements favoring leniency
and or better avoiding severity.
Most criminological theories argue a causal relationship from generally
decentralized social institutions onto heightened punitive outcomes. But large scale,
international, and empirically sophisticated research on diverse institutional patterns and
punitive outcomes is limited. Very little work investigates the relationship(s) between the
particular organizational patterns of criminal justice systems (nested within broader social
institutions) and punitive outcomes. Hence ambiguity remains regarding a detailed and
causal institutional model for crime and punishment.
Political economists have amassed consistent findings regarding more-direct
relationships between organizational patterns of specific institutional sectors and their
related outcomes. Decentralized decision-making and effective checks and balances upon
8
Savelsberg (1994, p. 912) laments most sociological analyses of punishment have ignored the role of
“intervening forces of knowledge and institutionalized decision-making.”
6
hierarchical bureaucracies both robustly correlate with and appear pre-requisite to the
promotion and preservation of trade and prosperity – both processes contain similar
forms of proportionate calculation to criminal punishment. Last, political economic
theory and qualitative history show a coeval increase of hierarchically centralized
authority within western criminal justice systems and perceived punitive excess therein.
We provide a unique interpretation of the available theories and evidence and
trace implications for a publically justified theory. Punishment philosophy should
consider the possibility that a consistent relationship between decentralization and
proportionality may hold regarding the organization of criminal justice institutions as
appears to hold between decentralized institutions and market processes. If correct, that
the practical abilities of punitive institutions to maintain proportionality rests in part upon
their decentralized character, then a justified theory should include some normative
support for assuring those organizational traits, as similar concessions exist in political
theory for the foundational institutions inferred necessary for economic prosperity
(Rawls, 1971, pp. 270-4).9
Rather than relaxing commitment to decentralization in the narrow field of
criminal justice as is typically common, liberal theorists should perhaps extend a
symmetric appreciation for decentralization coupled with support for effective checks and
balances in the criminal justice arena as they do in economic and other social sectors.
Perhaps even a stronger commitment therein given the physically coercive nature of
criminal punishments. Such analysis does not conclusively support abolitionist
9
Similarly, Schmidtz (2011) explains moral principles precluding pricing mechanisms cannot be justified,
as they would prevent the workability of society to resolve scarcity problems.
7
perspectives, but nor does it preclude them.10 Constitutional efforts to retain local level as
opposed to federal authority, effective limitations on the scope of criminalized activities
embodied in the harm (Mill, 1859) as opposed to the offense principle (Feinberg, 1988),
and a preference for punitive leniency in matters of doubt and uncertainty, all seem
consistent extensions of the analysis herein given a presumption for the necessity of some
state-based criminal justice authority.
The remainder of this paper is organized as follows. Section II explains the
justifiability of the communicative paradigm and demonstrates how proportionality is a
conditional factor for justification across paradigms. Section III outlines the structural
potentials and differing costs of error amidst alternative institutional and organizational
types. Section IV surveys institutional research surrounding the role of various
organizational forms to shape social outcomes including crime and punishment. Section
V concludes.
II. Punishment as moral communication and proportionality
What sorts of punitive institutions would reasonable citizens consent to not
knowing of their potential statuses within society? In this context, the veil of ignorance
can play two related roles. First, the social status of a citizen may vary according to her
material welfare; second, regarding her likelihood to commit crime. Hence reasonable
citizens would probably consent to the presence of some publically funded punitive
system to protect those who cannot secure themselves.11 Not knowing one’s proclivities
10
Much of our analysis regarding decentralization can be seen as compatible and or complementary to
radically alternative proposals such as Barnett’s (1977) restitution approach, or Friedman (2000, pp. 28196) preferred usage of civil legal processes for currently criminal violations.
11
At first glance this analysis accepts the typical presumption that punishment is in fact justifiable and thus
may appear unsatisfactory to those convinced of abolitionism such as Bedau (1991), Davis (2003), and
Boonin (2008). Though it should be noted that despite our starting presumptions, abolitionists may find
value in the implications explained here in. Mainly, the likelihood of a practical need for effective
8
for criminal behavior, be they innate and or opportunistic, citizens would also prefer
those justificatory frameworks that recognize even potentially criminal citizens as moral
agents and afford them political equality in the deliberative process of choosing punitive
institutions (Morris, 1981, p. 265; Hampton, 1984, p. 222).
Consequentialist paradigms impose punishments for the sake of preferable
outcomes such as deterrence, incapacitation, and rehabilitation.12 Retributive frameworks
reference criminals’ desert.13 Thus neither provides equal opportunity for deliberative
participation
across
diverse
citizens.
In
contrast,
the
communicative
theory
conceptualizes punishments as messages of society’s justly reasoned values, first
galvanized in prohibitions, second publicized by the processes of trial and conviction, and
finally produced and applied by penal sanctions. Communications are not motivated by
their backward or forward looking effects, but with the intent to convey the immoral
nature of crimes, genuinely convince criminals of said impropriety, and offer real
opportunities for penance and resolution. Particularly “harsh treatment” is said to be both
compatible and inherent to communication, as it is needed to avoid indifference between
crime and other immoral acts (Lipkin, 1988; Baker, 1992; von Hirsch, 1993; Narayan,
1993; Garvey, 1999, 2003; Duff, 2001, 2011; Tudor, 2001; Tasioulas, 2006; Bennett,
2008). Communication treats criminals as political equals in so far as reasonable citizens
with some unknown potential for criminal behavior prefer the presence of clear signals
and effective incentives against illegitimate behavior (Feinberg, 1970; Duff, 2001). For
constraints upon centralized authority in the administration of criminal justice services as such remains
open to the potential of abolitionist concerns and strategies.
12
Duff (2013) surveys the consequentialist perspective referencing Smart (1973) and Bagaric and
Amarasekara (2000) arguing the ultimate justifiability of punishment rests upon really producing the best
results.
13
Mundle (1969), Davis (1972), and Kleinig (1973) represent key moral arguments in favor of desert
inspired retributive justice. See also: Singer (1979), Duff (1986) and McLeod (2008).
9
example, as a moral agent ignorant of my potential social context, I do not want to
commit crime per se; but if in the condition to behave criminally, I would hope that the
laws and penalties be clear, predictable, unbiased to my social status, and provide some
opportunity for me to make amends.
Punitive communication also succeeds on public reason grounds in so far as it
accommodates some of the most justifiable facets of alternative paradigms to which some
citizens may adhere. Consequentialists can appreciate that communicative penalties will
retain some of their incapacitative, deterrent, and rehabilitative effects (Lipkin, 1988;
Baker, 1992). Just as retributivists value that deserving criminals not go ignored under a
communicative regime.
Communications loose their reasonable consent if implemented in too lenient or
too severe forms. Again, merely moral condemnation without harsh treatment neither
conveys the seriousness of crime relative to other immoral acts, nor does it effectively
compel criminals to cease or express remorse. Second, hanging a criminal in public for
the crime of petty theft would certainly incapacitate her, deter others, and communicate
the social impropriety of theft; but such would not carry consent. Yes, I would prefer to
live under some system of public punishments, but I would not chose infinitely harsh or
unpredictably applied sanctions. Reasonable citizens would likely insist upon, rather than
merely prefer, some institutional assurances regarding a fair and proportionately gauged
rule of law, as opposed to arbitrary, unconstrained, or biased processes.
If disproportionate, communications also fail to accommodate the standards of
other paradigms. Early consequentialists noticed punishment’s deterrent effects were
contingent upon the relative evaluations of crime and punishment by diverse citizens.
10
First, perceived harms are partially subjective across different individuals throughout
society. The theft of a hundred dollars may be a menial inconvenience if the victim is
very wealthy, whereas it could seriously debilitate a poorer individual from affording
basic necessities.14 Similarly, the costs of punishment may harm less the social status or
material welfare of a poor individual relative to a wealthier one (Friedman, 1981; Lott,
1987). Hence equality of law is difficult (perhaps impossible) to assure in practice, in so
far as society is comprised of diverse individuals (Kolber 2009a, 2009b, 2010).
Perhaps most concerning, if gauged disproportionately, a punishment scheme can
provide positive incentives for crime. “If the punishment is the same for simple theft, as
for theft and murder, you give the thieves a motive for committing murder (Bentham,
1830, p. 36).”15 With constant penalties across various criminal types, citizens are
encouraged to commit more severe crimes in so far as they perceive greater benefits
(Alchian and Allen, 1972). Such can be induced both by increasing penalties upon menial
crimes or by discounting graver offenses. Though initially couched in consequentialist
terms,16 similar equivocation would also occur if punishments were motivated by other
paradigms. If too lenient, a retributive penalty fails to correct the imbalance of desert that
inspired it. When imposed beyond the scope of desert, punishments deteriorate the
liberties and rights they are aimed to promote and protect (Skillen, 1980).
Disproportionalities would similarly wane the justifiability of communicative
punishments (Feinberg, 1970; Duff, 2001, p. 27). Given the aim to communicate
14
Smith (1763, p. 104) and Beccaria (1764, pp. 8-9) early noted the subjective and contextual nature of
crime and punishment as the primary challenge for an objective and or rational approach to law and
punishment.
15
Mandeville (1725) noticed similarly, suggesting that surges in public executions predominantly stemmed
from the legal practice of criminalizing the trade of stolen goods equivalently to theft itself. Such is also
implicit throughout rational choice models of crime (Becker, 1968).
16
See also: Hart (1968, 1-27), Ten (1987, 81-85), Lacey (1988, 46-56), Primoratz (1989, 137-43), Cragg
(1992, 59-67), and Scheid (1997).
11
society’s justified moral condemnation against crime, the accuracy of messages will
depend in part upon their ability to interpret and convey societal perceptions regarding
the relative harms caused by particular crimes and punishments. In short, censure and
severity are inherently linked, as changing the weight of a penalty will alter its message
of moral condemnation relative to others (von Hirsch, 1993, pp. 14-15). Hence,
proportionality
is
not
uniquely
required
for
consequentialist,
retributive,
or
communicative values, but is relevant across each standard and should thus play a
prominent role for public justification.
To the extent that the real production of punishments depends upon gauging
societal preferences for perceived harms, proportionality confronts unique challenges
relative to other punitive standards. A system of constantly severe penalties does not
communicate any meaningful differences across criminal types, akin to the training
process of a dog, whereas differently weighted penalties convey a more nuanced message
of relative values. In so far as justified communications entail some adherence to
proportionality, they also require some practical institutional process(es) to discern
societal values, assess the justifiability of punitive preferences, calculate punishment
ratios, produce and impose some real spread of punishments in accordance with
justifiable standards, adapt to marginal changes, and correct for errors over time.
Knowing objectively how severely to punish an offender and by what means for a
particular crime relative to others in accordance with justified societal preferences is
inherently complex. Diverse individuals throughout society will perceive and experience
the costs and benefits of crimes and punishments relative to available alternatives in
subjectively distinct ways. The harm endured by a particular crime will in part depend
12
upon the local conditions and perceptions of its involved criminals and victims. Hence
knowledge of justifiable punitive ratios is not discernable by any individual decision
maker nor is it necessarily a universal trait of any particular institutional schema.
Some have noticed the unique features of pricing mechanisms to meaningfully
aggregate across subjective evaluations during market processes and have thus
conceptualized criminal punishments similarly (Davis, 1983; von Hirsch and Jareborg,
1991).17 In this vein, to maintain proportionality, punishments aim to operate like
licensure fees for the ability to commit crime. Society conveys moral censure against
crime in relative ratios by adjusting punitive types and magnitudes. The benefits of crime
perceived by criminals are conveyed through their willingness to perform criminal acts
amidst punitive costs. In practice, such insights first inspired the architectural design of
penitentiaries (Bentham, 1787), have since influenced the informal strategies of judges
theorizing punitive types and magnitudes, and have most recently been formalized as
criminal sentencing grids and weighted punishment standards (von Hirsch et al., 1987).
Alas such strategies have proven ambiguous and at times problematic regarding
proportionate outcomes (Marvel, 1995; Marvel and Moody, 1996; Mauer, 2003).18
Hypothetical market prices and or philosophized licensure fees do not convey the
same forms of knowledge as are embodied in prices amidst conventional market contexts,
as they are not imbued by participants making real choices against cost-constrained
opportunities. In turn, actual prices depend upon a variety of coexistent institutional
17
Such is common practice in the applied subfield of economics of crime and punishment begun seminally
by Becker (1968). For a thorough and current survey see Levitt and Miles (2006).
18
See: Foucault’s (1974) institutional history of punishment. Entrusting the management of criminal
penalties to state authority inevitably entails some process of fitting punitive magnitudes (regardless of
their normative foundations) into some calculative schema (See: pp. 148, 180, 232, 244-5). In so far as
ruling interests are distinct from social welfare and or ideal justice, authorities will tend to select punitive
techniques and magnitudes that complement current and desired powers.
13
forms such as enforced private property rights, the freedom of contract, and a stable
monetary currency to serve as a common unit of account across agents. Individuals
commonly recognize the communicative signal and practical incentives associated with
trading within market environments. Hence their marginal choices throughout time and
space infuse the constantly en flux patterns of price ratios with real and continual
assessments regarding forgone choices and alternative preferences. Actors in market
processes confront real costs, both signaling the societal value of particular resources
while simultaneously providing incentives against excessive consumption or overly
prudent supply stocks. Designed price ratios do not possess comparable forms of
participation or preference aggregation and thus differ in their abilities to harness
feedback into adaptations towards proportionality. In so far as they are politically or
bureaucratically designed and implemented, legislated punitive ratios are also subject to
capture and bias by particular interest groups when in the absence of effective checks and
balances on power.
Fully privatized markets for criminal punishment are perhaps impossible and or at
least undesirable for contemporary implementation,19 but little attention has been paid to
how state institutions ought to be organized given the complex challenges posed by the
communicative paradigm or proportionality standard.20 Just as any commitment to the
public provision of criminal justice institutions will entail some process of punitive
calculations, in so far as such processes are imperfect simplifications of societal values,
19
Some exceptions have argued in contrast, the potentials of private services are greater than commonly
recognized. See: Leeson (2008a, 2009) Friedman (1979) argues multiple equilibria are possible in
alternative societies. Benson (1992), D'Amico (2010) and Allen and Barzel (2011) trace criminal
institutional changes and consequences through legal history. Gambetta (1993), Kaminski (2004), Leeson
(2008b), Leeson and Skarbek (2010), and Skarbek (2010, 2011, 2014) explain functional punitive
enforcements in criminal networks.
20
Savelsberg (1994, 912) suggests most have ignored “the intervening forces of knowledge and
institutionalized decision making.” See also ibid. (1999, 2008).
14
punitive institutions will inevitably entail some forms of error away from ideal
proportionate justice. Perhaps at best punitive philosophy can investigate the processes of
knowledge and incentive operations within alternative criminal justice institutions to seek
insight for how errors may systematically occur and or be corrected for under differently
organized arrangements.
III. Error and institutional organization
A rich body of theory and research suggests decentralized or polycentric social
systems, while not necessarily superior to centrally managed hierarchies on all margins of
efficiency at all times, do tend to provide preferable processes for error detection,
correction, and social learning through time especially when populations and local
territories within broader jurisdictions exhibit substantial diversity.21 Second, given the
particular types of error amidst punitive processes, there are substantial reasons for
citizens choosing from behind the veil to prefer errors of leniency over severity.
In polycentric institutional processes, wherein decision-making is performed by
many alternative individuals or separate nodes of authority, local level information is
often better detected and distributed through communication channels compared to
centralized alternatives. Hence errors are more systematically uncovered, alternative
strategies are more frequently experimented with, and resolutions are more quickly
converged upon (Ostrom, 2010). A polycentric system may possess a higher frequency of
errors relative to a comparable centralized alternative, but the rate at which errors are
corrected for and procedural innovations improve, tends to be superior under
polycentricity. Learning processes within centralized systems are more critically
21
See: McGinnis (1999) and Aligica and Tarko (2011) for thorough surveys.
15
dependent upon the foresight and knowledge of key individual decision makers whereas
polycentric systems foster multiple nodes of trial, error, and adaptation.
Most relevant to criminal punishment, applied research has investigated the
technological efficiency of polycentric jurisdictions relative to larger urban policing
systems (Ostrom, 1973a, 1973b, 1975a, 1975b, 1978, 1983, 1985; Ostrom et al., 1973,
1978a, 1978b, 1978c, 1979a, 1979b, 1979c; Ostrom and Parks, 1984; Ostrom and Smith,
1976; Ostrom and Whitaker, 1974).22 Smaller administrative units within networks of
sometimes overlapping jurisdictions were more informed of local level information
regarding unique environmental circumstances and contextual community resource needs
and preferences. Furthermore, the presence of multiple jurisdictions in close proximity to
one another fostered processes of competition, error correction, innovation, and
performance improvement overtime. Less attention via similar methodologies has been
paid to the specifically punitive phase of criminal justice decision-making.
Whereas, some significant insights exist regarding the relation between
organizational forms and general rates of error correction, divergence from justified
punitive outcomes occurs in two particularly relevant forms. Criminal justice processes
can be either excessively punitive (type I errors) or excessively lenient (type II errors). As
encapsulated by Blackstone’s (1765) now famous phrasing, “better that ten guilty persons
escape than that one innocent suffer” many philosophers have stressed a greater concern
regarding type I over type II errors. Some structural relationships in the economic
operations of information and incentives within criminal justice processes support
Blackstone’s inference.
22
See also: IsHak (1972) and Rogers and Lipsey (1974).
16
Becker’s (1968) seminal model of crime and punishment, gave equal weight to
the social costs of excessive convictions and excessive acquittals, as such “imprisonment
is always dominated by execution and both are dominated by fines and other alternatives.
[Yet] modern legal systems do not fit this pattern (Friedman, 1999, S259),” but
procedural norms such as those observed in pre-modern settings (Friedman, 1979), other
non-conventional legal environments (Ellickson, 1991), or exemplified by high standards
of criminal guilt such as “beyond a reasonable doubt” (Friedman, 2000), can effectively
supplement punitive weights so as to maintain deterrence.
Similarly, Rizzoli and Saraceno (2010, p. 395) notice “when costs of punishment
are positive, and guilty individuals are, on average, more likely to be found guilty than
innocent ones” type I errors are more costly than type II thus justifying high burdens of
proof in criminal cases on consequential ground. Additional inferences suggest this
inequality is more general. First, type II errors appear more likely self-correcting than
type I. Tried offenders do not escape the potential of social sanctioning or civil liability if
found innocent, thus they may be more easily detected if they recommit. Whereas the
losses associated with time served wrongfully incarcerated or executed are less
reconcilable. Second, in real criminal legal processes many type I errors also entail a type
II error. If I am wrongfully convicted for murdering my neighbor, there is simultaneously
a murderer on the loose effectively wrongfully acquitted.
If correct that type I errors are more concerning than type II in the context of
criminal punishments, whether for moral or consequential reasons, then it seems that
reasonable citizens choosing behind the veil would likely prefer institutional
organizational patterns more geared as such. In other words, those institutions that err on
17
the side of leniency, or given the inability to guarantee ideal proportionality, those
institutions least likely to suffer the greater costs of punitive excess are likely preferable.
IV. On the relationship between institutional organization and proportionality.
Available research now describes in some detail cross-country patterns of crime
and punishment (Mauer, 1995, 2003; Newman, 1999; Walmsley, 1999-2011, 2003). In
summary, nations with shared political, economic, legal, and or cultural institutions tend
to harbor similar criminal justice systems and punitive outcomes (See: Cavadino and
Dignan, 2006a, pp. 3-30, 2006b; Brodeur, 2007; Lacey, 2008, pp. 3-55; 2012 for
thorough surveys). Debate persists regarding what particular institutional arrangements
shape punitive outcomes most significantly and why.
Given the uniquely modern and western identity of mass incarceration (Garland,
2001a), casual observation has emphasized a link from generally decentralized social
institutions such as market economies (Rusche and Kirchheimer, 1939; Foucault, 1974;
Wilkins et al., 1991; Wacquant 1999, 2001; De Giorgi, 2006) and liberal democracies
(Savelsberg, 1994, 1999, 2008; Sutton, 2000) onto punitive severity and penal largess. In
contrast, more sophisticated data analysis shows no strong support for causation from
economic institutions or financial performance to greater crime or punishment trends
(Neapolitan, 2001; Sutton, 2004; Ruddell, 2005; D’Amico and Williamson, 2014). In
fact, economic freedom is positively related to crime reporting (Soares, 2004a, 2004b)
and negatively related to homicide rates (Stringham and Levendis, 2010).
Others claim western liberal societies lack certain centralized institutional forms
and social processes necessary for curtailing prison growth. Collective labor interests
(Sutton, 2004; Cavadino and Dignan, 2006a, 2006b; Downes and Hanson 2006), welfare
18
redistribution (Sutton, 2000, 2004) and proportionate voting (Lacey, 2008, 2012) are
noticed to correlate with lower prison populations and thus proposed as mechanisms for
constraining vengeful public opinion (Cullen et al., 1985, 2000; Walker and Hough,
1988; Flanagan and Longmire, 1996; Enns, 2014). Empirically such theories are difficult
to verify as high quality and longitudinal opinion measures are less available for less
developed economies. Mocan (2008, 2013) shows in contrast, vengeful attitudes are
incubated in high crime, low individualist, and low wealth contexts. Greene (2007),
Houser et al. (2008), Guala (2012), and Butler et al. (2013) show experimentally, punitive
biases transcend demographic identities and political environments. Last, theories
highlighting labor organization, welfare programs, and or unique electoral systems lack
robustness when other institutional variables are included (D’Amico and Williamson,
2014).
Economists share a general appreciation for institutional explanations to account
for the variance of wealth around the world and over time. Empirical research shows a
strong and consistent correlation between institutions such as private property rights, the
freedom of contract, stable monetary policies, and limitations on the fiscal size and
discretionary power of government with national economic performance (La Porta et al.,
2008; Gwartney et al., 2013). Desiring to understand how such institutions may be better
supported, investigators researched the organizational life cycles of those institutions that
parallel prosperity. In short, nations historically founded by British common law rather
than French, German, or Scandanavian civil law seem to foster better financial and
economic performance (La Porta et al., 1997, 1998, 2002, 2008; Shleifer and Wolfenzon,
19
2002; Djankov et al., 2007, 2008, 2010; Dyck and Zingales, 2004).23 A variety of socially
preferable outcomes also correlate, including less military conscription and government
ownership of media (Mulligan and Shleifer 2005a, 2005b; Djankov et al., 2002, 2003a,
2003b, 2008; Botero et al., 2004; La Porta et al., 2004). More specifically, such appear
driven by relatively decentralized organizational forms and effective checks and balances
on hierarchical authority within the social sectors they relate (Shleifer and Vishny, 1993;
Djankov et al., 2003a). In short, the common law is seen to operate “efficiently”
regarding material wealth as judicial decision-making operates at a relatively local level
and is effectively checked by competitive pressures from alternative territories and the
limiting constraints of differing branches of government. Less is known about how
criminal justice procedures operate uniquely from civil procedures across different legal
environments.
Ideally, there would be accurate and detailed empirical measures to represent the
organizational features of national criminal justice institutions around the world and over
time, which could in turn be compared to sophisticated metrics on crime and punishment
trends. Alas, detailed data only exist for incarceration rates, the presence of the death
penalty, and crime trends regarding a large sample of countries in most recent years (See:
Sutton, 2000, 2004; Soares, 2004a, 2004b; D’Amico and Williamson, 2014 for some of
23
Some research contests the causal influence of legal origins (Graff, 2008; Helland and Klick, 2011).
Others question the exogenous nature of legal origins as colonial strategies differed across English common
law and French civil traditions (Klerman et al., 2011; Dari-Mattiacci and Guerriero, 2011). Similarly,
Spamann (2010) finds “no systematic difference in the complexity, formalism, duration, or cost of
procedure in courts of first instance (149).” Guerriero (2011) argues legal origins are proxies for the
weakness of democracy and cultural heterogeneity but agrees that institutional forms related to economic
performance are slow changing and historically shaped. La Porta et al. (2008) draw from Dawson (1960),
Merryman and Perez-Perdomo (1969), Berman (1985), Damaska (1986), David and Brierley (1985),
Reynolds and Flores (1989), Glendon et al. (1982, 1994), and Zweigert and Kotz (1998) to affirm
consistent and meaningful differences exist and persist across legal origin categories and relate to
institutional patterns and social outcomes therein.
20
the largest data analyses available).24 Longer run sources are more available for
developed nations, with detailed aggregations from historical archives in similarly
institutionalized nations such as Britain and the United States (Beattie, 1974; Eisner,
2003). Regarding cross-national criminal justice organization, The Bureau of Justice
Statistics “provides narrative descriptions… of 45 countries around the world” in The
World Factbook of Criminal Justice Systems (McDonald, 2002), but such has yet to be
indexed as a quantitative research tool. Thus cross-applied theoretical models and
qualitative historical materials are perhaps the most useful sources available for
informing current normative perspectives as to the predictable effects of criminal justice
systems with different organizational structures.
Despite limited empirics, there is significant confirmation that the organization of
criminal justice institutions within advanced western democracies is a-typical to the
institutional organization across other social spheres therein. While common law
countries tend to host stronger protections for private dispute resolution and less
involvement by government authority in financial and economic decision-making (La
Porta et al., 2008, pp. 286), the common law robustly correlates with larger prison
populations and a greater likelihood of death penalty policies (Ruddell, 2005; Greenberg
and West, 2008; Spamann, unpublished; D’Amico and Williamson, 2014).
Secondly, some theoretical perspectives suggest punitive biases are endemic to
centralized criminal justice institutions (Benson, 1990, 1994). Koppl and Whitman
(2010) and Koppl and Sacks (2013) track epistemic failures and corrupting incentives
24
See also: Jasinski (1976), Lynch (1988), Young and Brown (1993), Greenberg (1999), Sutton (2000,
2004), Jacobs and Kleban (2003), Soares (2004a, 2004b), Ruddell (2005), Tonry and Farrington (2005),
Downes and Hansen (2006), Cavadino and Dignan (2006a, 2006b), Tonry (2007), Van Dijk et al. (2007),
Kesteren (2009), and Di Tella and Dubra (2009).
21
throughout the trial and sentencing processes suggesting bias for false convictions. Avio
(2003) surveys Nardulli (1984), Gierts and Nardulli (1985), and Benson and Wollan
(1989) explaining how political structures within the US concentrate the perceived
deterrent benefits of enforcement resources while federalizing costs leading to general
penal largess. Larkin (2013) also explains how political incentives lead to systematic over
criminalization.25
Historically, prior to the empirical trends most arousing of concerns regarding
punitive excess, western societies harbored criminal justice institutions and processes
more decentralized than current trends. Throughout most of pre-modern human history,
criminal justice processes were privately motivated and non-distinct relative to civil legal
procedures – civil and tort processes are less centrally organized than criminal within
modern contexts. Between the fourteenth and eighteenth centuries western legal systems
developed dedicated criminal justice systems with publically funded and managed police,
court, and prison systems (Goebel, 1937; Phillips, 1977; Tobias, 1979; Hay, 1980;
Berman 1983, 2001, pp. 306-29; Benson, 1992). Such organizational forms were quickly
replicated and implemented around the developed world thereafter. Services remained
decentralized in so far as they were predominantly financed and managed at the local,
township, urban, and state levels of decision making (Beaumont and Tocqueville, 1833;
Rothman, 1971; Hirsch, 1992; Friedman, 1993), whereas the latter twentieth century
hosted a unique scope of federal growth, centralization, and codification of criminal
justice authority via federal criminal legislations, enforcement programs such as the war
on drugs, and sentencing guidelines; all in conjunction with the perception of heightened
25
See also: Benson (1990, 1994).
22
punitivity (Beckett, 1997; Garland, 2001b; Roberts et al., 2003; Whitman, 2003; Stuntz,
2011).
We interpret the available theory and evidence uniquely from dominant
criminological perspectives. First, empirics fail to confirm direct and or indirect
relationships between decentralized society-wide institutional structures and excessive
punitivity. Second, attempts to confirm that generally centralized institutions effectively
constrain punitivity lack robustness. Political, economic, and or cultural institutions do
not fully explain crime and punishment trends. On the other hand, theory and evidence
shows a strong and consistent relationship between decentralized institutional forms,
knowledge and incentive coordination, and proportionate outcomes in financial decision
making processes and other non-criminal-legal social sectors. Last, limited but
quantitative empirics and qualitative historical materials suggest that those criminal
justice systems most inspiring critical concerns regarding punitive excess have done so
amidst increased centralization. The organizational features of criminal justice
institutions particularly, more so than the organization of national social institutions writ
large appear relevant to punitive outcomes. While precise causation between
decentralization and justified proportionality remains uncertain, some theory and
evidence suggests correlation between centralization and perceived punitive excess as
well as some relationship between decentralization and effective avoidance of inefficient
severity.
V. Conclusions
We consider communicative values as a preferably justified paradigm for criminal
punishments according to public reason standards. We further notice that communication
23
akin to other reasonable paradigms must conform to the proportionality principle to
remain just. When gauged disproportionately, criminal punishments fail to obtain consent
from reasonably disagreeing citizens. Given, proportionality’s common relevance across
paradigms and unique practical challenges relative to other frameworks we suggest moral
theorists investigate theory and evidence surrounding how different institutional
organizational structures coordinate knowledge and incentives for feedback and error
correction in the maintenance of proportionate outcomes.
A structural analysis across differently organized institutions implies some
support for erring in favor of punitive lenience over severity. Research from institutional
criminology and penology remains ambiguous regarding a detailed and accurate model
for the causes and consequences of crime and punishment. Contemporary political
economy has produced a more consistent body of theory and evidence regarding
relationships between the organizational forms of particular institutional sectors and
social outcomes therein. Given the available theory and evidence we consider the
implications that a similar relationship between decentralized criminal justice institutions
and justified proportionality holds as does betwixt institutional decentralization and
economic performance outcomes.
Abolitionists may be frustrated by our willingness to accept the presumption for
the justified role of some publically administered system of criminal punishment. Though
it should be noted that nothing herein explicitly precludes the alternative presumption, an
acceptance of abolitionist arguments, the possibility that public punishments cannot be
consistently justified, or that proportionality itself is infeasible and or unjustifiable. In
fact, there would seem to be a significant degree of compatibility between our emphasis
24
on the possibly foundational role of institutional decentralization and the historical
examples (Friedman, 1979) of restitution based systems (Barnett, 1977) argued by
Boonin (2008) to sufficiently eliminate the presumed necessity of state-based criminal
punishments.
If instead one sees a necessary role of state authority in the administration of
criminal punishment then such a position must engage with and account for the particular
tension we have observed, mainly that state authority has historically and cross-nationally
operated as a centralizing influence upon the organizational structure of punitive
institutions. Furthermore a variety of theory and evidence suggests a potentially inverse
relationship between institutional centralization on the one hand and the processes of
knowledge and incentive coordination required for proportionality on the other.
If correct, that proportionality at least in part depends upon the decentralized
organization of punitive institutional processes then liberal theorists should perhaps
extend a symmetric appreciation for decentralization and effective checks and balances in
the criminal justice arena as they do in economic and other social sectors. Perhaps even a
stronger commitment therein, given the physically coercive nature of criminal
punishments. In short, the violent powers afforded to centralized authority via the
criminal justice system may threaten or effectively weaken the functional constraints and
effective checks and balances upon arbitrary power preserving of foundational
decentralization in other social sectors.
Constitutional efforts to retain local level as opposed to federal authority,
effective limitations on the scope of criminalized activities as embodied in the harm
(Mill, 1859) as opposed to the offense principle (Feinberg, 1988), and a preference for
25
punitive leniency in matters of doubt and uncertainty, all seem consistent extensions of
the analysis herein given some presumption for the necessity of state-based criminal
justice authority. Rather than the criminal justice arena being conceptualized as an
archetype for market failure and traditional public good models we suggest it be
considered a venue for a consistent application of classically liberal frameworks of
constitutional political economy. Mainly, that the task of effective policy design and
selection be focused on limiting the size and scope of centralized authority rather than
designing and constructing ideal prohibitions and or enforcement strategies.
26
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