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THIS IS A DRAFT. PLEASE DO NOT QUOTE OR CITE WITHOUT PERMISSION. Professor Paul Butler George Washington University Law School firstname.lastname@example.org (202) 994-6024 TERRORISM AND UTILITARIANISM: LESSONS FROM, AND FOR, CRIMINAL LAW Introduction Punishment is violent, but it is violence with a purpose. The same observation might be made of terrorism. Although comparing punishment and terrorism initially may strike the reader as strange, my purpose in this essay is to make the comparison instructive. Some terrorists justify their sacrifice of human lives by utilitarian calculations. American criminal justice uses the same utilitarian rationale to justify punishment. My thesis that in both cases, utilitarian justifications are usually - but not always - immoral. Before September 11, 2001 I wrote an article examining Malcolm X’s famous exhortation that African-Americans should seek to achieve justice “by any means necessary.”1 I concluded that the prescription is immoral. I recommended that minorities consult the doctrine of “just war” for better instruction on the tactics they should employ. My thesis was that morality does not allow minorities any means necessary, but that it does allow more extreme 1Paul Butler, “Justice, But Not ‘By Any Means Necessary:’ The Moral Limits of Righteousness” (hereinafter “Justice”). 1 tactics than they now employ, including, rarely, violence.2 On September 11, 2001, as the whole world knows, terrorists attacked the United States of America. They hijacked four planes, and guided three of those planes into American landmarks: the World Trade Center and the Pentagon. The fourth plane crashed in Pennsylvania3. Approximately 3,000 people were killed, and many thousands more were injured.4 Nineteen men, thought to be terrorists, were among the dead . The United States government believes that the attacks were masterminded by Osama bin Laden, although he has denied responsibility. Bin Laden is a rich Saudi expatriate who has long been engaged in a campaign to eradicate Western influence from the Islamic world. He inspires broad support “by taking advantage of real issues - like support for Israel, sanctions against Iraq and American troops in Saudi Arabia - that have generated much Arab and Muslim hostility toward the United States.”5 2As usually interpreted, the doctrine of just war does not allow non-military actors to engage in war and thus, private violence by minorities is impermissible . In “Justice” I critique this aspect of just war doctrine as under-theorized, to the extent that it would allow minorities to be protected by the force of another nation’s army (in the context of humanitarian intervention), but would not allow those minorities to protect themselves). 3N.R. Kleinfeld, U.S. Attacked; Hijacked Jets Destroy Twin Towers and Hit Pentagon in Day of Terror, N.Y. TIMES, Sept. 12, 2001, at A1. 4Sara Kugler, Offical Death Toll form World Trade Center around 2,800, Associated Press, Feb. 8, 2002. (“The city’s official count of those killed at the World Trade Center is down to around 2,800 after months of work by investigators to remove errors and duplicated names from the lists of the missing.”). 2 5Nikki R. Keddie, Divine Inspiration, N.Y. TIMES, December 16, 2001, Op-Ed (section 4), at 13; but see Christopher Hitchens, Against Rationalization, The Nation, October 8, 2001 found at http://www.thenation.com (February 18, 2002) (attacking the liberal tendency to rationalize the events of September 11 – “I know already that the people of Palestine and Iraq are victims of a depraved and callous Western statecraft…[b]ut there is no sense in which the events of September 11 can be held to constitute such a reprisal, either legally or morally…It is worse than idle to propose the very trade-offs that may have been lodged somewhere in the closed-off minds of the mass murderers…What they abominate about ‘the West’, to put it in a phrase, is not what Western liberals don’t like and can’t defend about their own system, but what they do like about it and must defend: its emancipated women, its scientific inquiry, its separation of religion from the state.”) 3 After September 11, 2001 I reconsidered the issue of whether private violence is ever a legitimate means of expressing a grievance with a government. In this article I examine what the criminal law can teach us about terrorism, and what terrorism can teach us about the criminal law. Both terrorism and the harsh punishment for crimes favored by American criminal justice are premised on a construct of cost-benefit analysis that, while (arguably) efficient, is immoral. Both terrorism and excessive punishment can be justified by utilitarianism, but neither should be. For the record, my comparison of terrorism and American criminal justice does not mean that I think that they are equally bad. Terrorism is worse. There are, however, an extraordinary number of people in the United States who are being punished disproportionately to their desert. They are punished for social, not individual, reasons. This is especially true of the hundreds of thousands of Americans who are imprisoned for drug offenses. When we remember that punishment is “the deliberate infliction of pain” we understand that the state is intentionally hurting people to achieve some end. This is not as bad as what terrorists do, but the difference is one of degree, not kind. My argument proceeds in three parts. In the first section I define terrorism and examine it from utilitarian and moral perspectives. Along the way to making the case that terrorism is usually immoral, I discuss instances in which it is not. I believe, for example, that private violence is sometimes morally justified in combating slavery and genocide. Indeed many contemporary definitions of “terrorism” would include slave rebellions or the Warsaw Uprising, though many now think of those “terrorists” as heroes. Part II examines the concept of moral standing, to explain why and how it matters whether we practice what we preach about violence and morality. In Part III, I criticize the heavy reliance of our criminal justice system on 4 utilitarianism. I make the same moral critique of most utilitarian punishment that I make of most utilitarian terrorism. I conclude by imagining how American criminal justice would be improved by not using punishment as a means to an end. 1. TERRORISM AND UTILITY Terrorism, according to the Federal Bureau of Investigation, is “the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”6 Terrorism is the way that non-soldiers engage in war.7 Among the differences between terrorism and traditional war are that 6FBI Definition of Terrorism, found at http://www.fbi.gov (February 14, 2002). Other intelligence agencies, like the CIA, use the definition of terrorism found in the U.S. Code. 22 U.S.C. 2656f(d) (1994) (“ ‘terrorism’ means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.”) The Department of Defense defines terrorism as “the calculated use of violence or the threat of violence to inculcate fear; [it is] intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological.” Loren Lomasky has written that “any purported definition of ‘terrorism’ will itself be laden with moral and political baggage. Most individuals who employ violent means in their political activities prefer to speak of themselves as ‘urban guerrilla,’ ‘revolutionary,’ or some such. Thus the bromide ‘One perosn’s terrorist is another’s freedom freedom fighter.’ One need not accede to the implied relativism to acknowledge the absence of firm and generally accepted criteria of application for ‘terroris’ and its cognates.” Loren E. Lmasky, The Political Significance of Terrorism,” in Violence, Terrorism, and Justice, eds. R.G. Frey and Christopher W. Morris at 86-87(1991). 5 7 Serge Schmemann, U.S. Attacked; President Vows to Exact Punishment for ‘Evil’, N.Y. TIMES, September 12, 2001, at A1 (“Within an hour of the attacks, the United States was on war footing. The military was put on the highest state of alert, National Guard units were called out in Washington and New York and two aircraft carriers were dispatched to New York harbor”); Dan Balz, Bush Confronts a Nightmare Scenario, WASHINGTON POST, September 12, 2001, at A2 (Senator John McCain called the attacks of September 11, an “act of war”); Elizabeth Bumiller and David E. Sanger, A Somber Bush Says Terrorism Cannot Prevail, N.Y. TIMES, September 12, 2001, at A1 (“Freedom itself was attacked this morning by a faceless coward,” the president said). Caleb Carr defines terrorism as “simply the contemporary name given to, and the modern permutation of, warfare deliberately waged against civilians with the purpose of traditional wars are often “legal” and terrorism is illegal, and that the perpetrators and the intended victims of terrorism are often civilians8, whereas in traditional war the intended victims are soldiers. Why do people engage in terrorism?9 Terrorists are not stupid, at least not in destroying their will to support either leaders or policies that the agents of such violence find objectionable.” Caleb Carr, The Lessons of Terror: A History of Warfare Against Civilians: Why It Has Always Failed and Why It Will Fail Again (2002). 8 The bombing of US Marine barracks and USS Cole are examples of cases in which when the military is the target but the act is still considered, by many, terrorism. John F. Burns, The Warship Explosion: The Overview, Blast Kills Sailors on U.S. Ship in Yemen, WASHINGTON POST, October 13, 2000, at A1 (17 sailors killed in the attack on October 12, 2000). But see Caleb Carr’s definition of terrorism , supra, which excludes military targets. 9 Discuss problems of proof with regard to terrorism. 6 the ways that we typically measure stupidity.10 Terrorism is purposeful, whether or not we agree with its purposes.11 Killing or injuring people to achieve some useful purpose is a familiar concept in criminal law. When the state intentionally inflicts pain upon a person, under the guise of “punishment,” it may have retributive and/or utilitarian objectives. Retributivists punish exclusively because punishment is deserved, either because the criminal is morally blameworthy or because she has broken some contract with society. Utilitarians believe that criminals should be harmed when it is in the best interest of society, usually because punishment is believed to deter other crime, or to 10Bin Laden trained as an engineer. John Kelly, The Man Behind the Terror, WASHINGTON POST, September 27, 2001, at C12; see also Paul Blustein, Unrest a Chief Product of Arab Economies, WASHINGTON POST, January 26, 2002, at A1 (“some of men identified as carrying out terrorist attacks on the World Trade Center and the Pentagon were educated – notably their apparent ringleader Mohamed Atta, a 33 year older Egyptian with an engineering degree.”) 11Loren E. Lomasky notes “Individuals persistently unable to apprehend the sheer implausibility of toppling regimes by gunning down assorted tourists are unlikely candidates of successfully carrying out complex quasi-military operations. In the absence of specific evidence to the contrary, it is reasonable to impute to terrorism no lesser rationality than that which social analysts routinely ascribe to other actors and which, in any event, is requisite for the conduct of their operations. Rational agents are not systematically unable to distinguish efficacious from inefficacious activity.” P. 90. 7 incapacitate a criminal, or to rehabilitate her. Terrorists may also have retributive or utilitarian motives for the suffering they inflict. “Retributive” terrorists believe that the victims (or their country) deserve punishment, for its own sake. 12 More typically, though, the objective of terrorism is utilitarian. These terrorists desire to teach their victims a lesson.13 They want to provoke a “holy war.”14 Utilitarian terrorists want to coerce, by fear, compliance with their demands. Professor Loren Lomasky has described two possible goals of terrorism: one, to cause a political outcome, and second, an expression of support for a political outcome, “without, however, intending thereby to bring about those 12During his sentencing, Ramzi Ahmed Yousef, the mastermind behind the 1993 bombing of the twin towers, “cited the bombing of Japan, the Vietnam War, and the trade embargoes against Cuba and Iraq as US acts that warranted punishment.” John Parachini, Religion Isn’t Sole Motivation of Terror, L.A. TIMES, September 16, 2001, at M7. In 1998, two US embassies in Africa were bombed eight years to the day after the arrival of the first United States troops in Saudi Arabia after Iraq invaded Kuwait. Id “Before receiving his sentence, Mr. Yousef…railed against the United States, Israel, and what he termed the Jewish lobby in Washington, saying terrorism was the only viable response to their policies toward the Palestinians and people in other Muslim countries.” Benjamin Weiser, Mastermind Gets Life for Bombing of Trade Center, N.Y. TIMES, January 9, 1998, at A1. 13 After the bombing of the World Trade Center in 1993, the conspirators “justified their attack as away to transfer the conflict between Israelis and Palestinians to the American homeland and argued that Americans would only diminish their support for Israel when they suffered in the same way as Palestininans and other people like them in moderate Arab countries. The bombers argued that ‘the American people must know that their civilians who got killed are not better than those who are getting killed by the American weapons and support’ Parachini, supra note 9, at M7. In November, a videotape was found in a house in Jalalabad, Afghanistan in which bin Laden says “we will not stop our raids until you free our lands.” Judith Miller, The Mastermind, A Glimpse, Guard Down, N.Y. TIMES, December 14, 2001, at A1. 14 John F. Burns, Bin Laden Taunts U.S. and Praises Hijackers, N.Y. Times, October 8, 2001, at A1; Douglas Frantz and David Rohde, How Bin Laden and Taliban Forged Jihad Ties, N.Y. TIMES, November 22, 2001, at B1. 8 outcomes.”15 Is terrorism an efficient way of achieving a political goal? Do its benefits outweigh its costs? It depends, in part, on how the benefits are defined. How and when do terrorists win? If their objective is retribution, or simply to intimidate or cause fear, the terrorists win when they commit their act of violence. If their objective is to coerce a government, victory, if ever, occurs in the long run. Winning would have to be inferred from circumstantial evidence, because no government is likely to admit it changed its policies in response to terrorism, for fear of provoking more terrorism. If, on the other hand, Professor Lomasky’s view that the purpose of terrorism is to express support for a cause is correct, the benefit is achieved as soon as the bomb explodes. 15Loren E. Lomasky, p. 90. Professor Lomasky believes that “it is the second of these hypotheses that seems better to fit the data.” 9 The costs of terrorism are extraordinary: they may include 1) the terrorist’s life;16 2) punishment; 3) war or other violence against the terrorist’s “side,” possibly including against a nation that is believed to support the terrorist, or a political, religious, or social organization; 4) the risk of public backlash against the terrorists’ cause. 16But see Ehud Sprinzak, Foreign Policy, “Rational Fanatics”, September/October 2000 (noting that experts on terrorists believe that “suicide terrorism has inherent tactical advantages over ‘conventional’ terrorism: It is a simple and low-cost operation (requiring no escape routes or complicated rescue operations); it guarantees mass casualties and extensive damage (since the suicide bomber can choose the exact time, location, and circumstances of the attack); there is no fear that interrogated terrorist will surrender important information (because their deaths are certain); and it has an immense impact on the public and the media (due to the overwhelming sense of helplessness).” 10 Why does terrorism occur, when its potential costs are so high? Many terrorists, by their actions, demonstrate that the benefits outweigh the costs. Their acts are efficient, in their own calculus.17 The Western, and especially American, emphasis on individuality - the primacy of self - makes it difficult for us to understand how any cause, especially a “political” one, could be worth losing one’s life. There are, however, those whose faith in their cause makes them willing to die for it18. This concept is a commonplace in military discourse and terrorists are, in a sense, civilian (and illegal) soldiers.19 Indeed, Professor Lomasky describes the sacrifice that terrorists make on behalf of their cause as more benefit than cost. He analogizes terrorists “expressive activity” to the cheering of fans at a sporting event. 17I am assuming that terrorists are rational, or at least subject to deterrence. See, e.g. Richard A. Posner, Economic Analysis of Law 242-243 (5th ed. 1998) (“The notion of the criminal as a rational calculator will strike many readers as unrealistic, especially when applied to criminals having little education or to crimes not committed for pecuniary gain. But . . . a better test of a theory than the realism of its assumptions is its predictive power. A growing empirical literature on crime has shown that criminals respond to changes in opportunity costs, in the probability of apprehension, in the severity of punishment, and in other relevant variables as if they were indeed the rational calculators of the economic model - and this regardless of whether the crime is committed for pecuniary gain or out of passion, or by well educated or poorly educated people”). But see Arthur Schlesinger, Jr. “When Terrorists Take Hostages; Obsession Leads to Paralysis,” New York Times, June 27, 1985 (arguing that terrorists are “religious fanatics for whom death in a great cause is its own reward”). 18Bill Maher, the host of ABC’s ‘Politically Incorrect’, was criticized for agreeing with Dinesh D’Souza’s assertion on Maher’s program that the September 11 terrorists were not cowardly. Maher added: “We have been the cowards, lobbying cruise missiles from 2,000 miles away. That’s cowardly. Staying in the airplane when it hits the building, say what you want about it, it’s not cowardly.” This comment caused unrest amongst many viewers, with Sears and FedEx pulling their advertising from the program. Paul Brownfield, Troubled Timing Makes Maher Beyond ‘Politically Correct’, September 26, 2001, L.A. TIMES, Calendar, at 1. 19Nathan Hale, the famous American patriot, before being executed by the British in 1776 for espionage said, “I regret that I have but one life to give to my country.” M. MaClowsky, THE 11 He notes “for the vast majority of fans, cheering is not a cost but rather a benefit, not an investment in outcomes but a consumption good. One cheers because one wishes to express support for one’s team and not because one is attempting to secure some further desired outcome.” 20 Death is probably the most certain risk of terrorism. The other costs - punishment, war, popular disgust with the terrorist’s cause - are considerably more speculative, which lessens their effectiveness as deterrence.21 The empirical evidence suggests that, for deterrence, the certainty of a consequence is a more important correlate than the severity of a consequence. AMERICAN INTELLIGENCE COMMUNITY 33 (1967). 20Loamasky, p. 92 21See, e.g. Sanford H. Kadish and Stephen J. Schulhofer, Criminal Law and Its Processes Cases and Materials at 119 (7th ed, 2001) (“The two plausible ways to increase the direct deterrent effect of punishment are, first, to increase the risk of conviction, and second, to increase the severity of punishment. The first of these alternatives appears to be the more effective, although it is also the more difficult to implement”). 12 If, or when, terrorism is efficient, why is it wrong? The typical critique of terrorism is based on morality: terrorists may be rational but they are also evil.22 Jan Narveson has identified three components to the immorality of terrorism: first, the sense of risk that it causes the public at large; second, the powerlessness people have from being put at risk; and third, the “apparent absurdity” of attacking an innocent victim in pursuit of a political goal.23 But what if attacking the innocent to make a political point is not absurd, but rather efficient? In such a case, there is a (not unfamiliar) conflict between what the market bears and what morality demands.24 Thus, even when terrorism “works,” most Americans would say it is immoral because its tools are death and destruction.25 22On September 11, 2001, President Bush declared, “today our nation saw evil, the very worst of human nature.” Elisabeth Bumiller and David E. Sanger, A Somber Bush Says Terrorism Cannot Prevail, N.Y. TIMES, September 12, 2001, at A1. “Anyone who does not loathe the people who did these things, and the people who cheer them on, is too philosophical for decent company…If what happened Tuesday does not give Americans the political will needed to exterminate men like Osama bin Laden and those who conspire with them in evil mischief, then nothing will…” Lance Morrow, The Case for Rage and Retribution, Time, September 14, 2001, at 48. See also Leonard Pitts, Jr., We’ll Go Forward from Here, MIAMI HERALD, September 12, 2001, at 2A. (“You monster. You beast. You unspeakable bastard. What lesson did you hope to teach us by your coward’s attack on our World Trade Center, our Pentagon, us?……) 23See Narveson, p. 124-125 (“What is so awful about terrorism, then? It is, I take it, much the same thing as what is awful about ordinary crime: violence and the threat of violence to peaceable persons, persons attempting to go about their lives in the pursuit of harmless, nonthreatening, and morally useful purposes”). 24Cite Ayers article for example of “efficiencies” that are immoral or illegal, e.g. discrimination. 13 25Immanuel Kant is perhaps the best known critic of utilitarianism. He warned that “one man ought never to be dealt with merely as a means subservient to the purpose of another . . . Against such treatment his inborn personality has a right to protect him....For if justice and righteousness perish, human life would no longer have any value in the world.” Immanuel Kant, The Those tools seem outside the bounds of politics.26 Yet are they really? The African-American revolutionary H. Rap Brown said, famously, that “violence is as American as apple pie.” In fact, our law, and perhaps our morality as well, sometimes allows people to kill and destroy in pursuit of a goal. Self-defense is a classic example (although the goal of self-defense is not political). Professor Jan Narveson has listed six situations in which it is arguably justifiable to use violence. She states the situations in order from most to least plausible justifications: 1. Preventing immediate injury to self (traditional self-defense) 2. Preventing immediate injury to others (traditional defense of others) 3. Preventing longer-range threats to life (self or others) 4. Preventing or rectifying loss of legitimate liberty (self or others) 5. Providing conditions of a minimally acceptable life when no other means is Philosophy of Law (W. Hastie tr. 1887). 26Writing long before September 11, 2001 Professor Lomasky observed that though “terrorism has imposed severe costs within Western (and other) societies . . . [t]hese costs . . . have fallen far more heavily on individuals than on political institutions.” Nonetheless, he writes “sober- minded persons of seasoned political judgment adopt near-apocalyptic tones when discussing the impact of terrorism.” Thus, he believes that there is a “disproportion between, on the one hand, the nugatory capacity of terrorist activity to disrupt political structures and, on the other hand, the fevered commentary it elicits.” Lomasky, p. 96-97. 14 possible (even though others have not clearly deprived one of such conditions). 6. Promoting a better life for oneself, some favored group, or humankind at large, beyond the “minimally acceptable” level mentioned in (5).27 Narveson proposes that 1-4 are “basically acceptable, that (6) is definitely not acceptable, and that (5) is the hard case, but that fundamentally it must be considered marginally acceptable if at all.” 28 She posits that choices 1-4 invoke violence as “defense” and that (5) and (6) promote violence as “need.” Narveson does not undertake the difficult task of explaining what theory of morality determines her analysis, and, for the purposes of this essay, I will not explain mine either.29 I agree, though, with Narveson’s calculus of morality, and expect that many readers will also. It explains the revulsion by Americans to the September 11, 2001 terrorists. The terrorists’ objectives would place them in category (6), which according to Narveson, is “definitely” immoral. 27Narveson, p. 130 28Id at 131 29I hope this does not appear to be a cop-out. There may be some basic moral principles which many Americans share. When George W. Bush called the September 11 terrorists evil, we did not need to know his construct of morality in order to understand his meaning. I appeal to the same corporate sense of morality in this essay. 15 Terrorism is an extreme example of sacrificing lives as a means to an end, although as Part III of this article argues, it is far from the only example. Even considering the extreme, is it always immoral? To use an example from American history, would private violence directed against innocents have been morally acceptable to end slavery? Popular cultural, at least, reveals a more balanced assessment of the people who championed violent revolts against the peculiar institution of American slavery. Viewed through contemporary eyes, men like Nat Turner and John Brown may not be heroes, exactly, but neither are they “terrorists,” exactly. They occupy a more nuanced space in our moral universal.30 As a descendent of slaves, and a witness to the scars slavery left, I am unwilling to condemn, categorically, private violence that sought to hasten its abolition.31 30Of course slaves who led revolts had an immediate incentive: self-help. Their use of violence was directly connected to their gain, not attenuated in the way of terrorists who use violence to further a political objective. Non-slave insurrectionists, on the hand, would be “terrorists” under virtually any contemporary definition of the term. 31My critique, if any, would be that private violence was not efficient. The moral case against it is less certain. Indeed popular culture more frequently depicts anti-slavery insurrectionists as irrational than as immoral. See e.g. Nat Turner’s Diary. 16 Apparently I am not alone in this belief. The people of Charleston, South Carolina, for example, recently erected a monument in honor of Denmark Vesey, a terrorist. Vesey was executed in 1822 for conspiring to free slaves by burning the city of Charleston, killing the whites, seizing ships, and sailing to Haiti. When the tribute to Vesey was proposed, some Charleston residents protested; Vesey, after all, planned to kill innocents. The view that Vesey was a hero (instead of being a terrorist? in addition to being a terrorist?) carried the day.32 At least in the eyes of some Americans, morality and the killing of innocent civilians are not always mutually inconsistent. The uncertainty about how to evaluate the morality of some terrorists (one might also think of the people who participated in the Warsaw Uprising, or the original American rebels) has two possible explanations: 1) we have a double standard about terrorism and morality depending on our sympathy for the terrorists’ cause or 2) there may be some extreme cases in which the sacrifice of innocent lives in pursuit of a political objective is warranted. If we accept the former explanation, the appropriate moral solution probably is to have one standard for terrorism, and that standard probably requires absolute condemnation in every case. If we endorse the second explanation, however, there may be exceptions to the general rule that terrorism is immoral. These exceptions must be carefully delineated, and then 32See Jon Wiener, Denmark Vesey: A New Verdict, The Nation, Mar. 11, 2002 at 21. (examining open historical questions about the incident). 17 rigorously scrutinized to make sure that they are not self-serving. Using Professor Narveson’s scale, violence against the “guilty” [i.e. the perpetrators] to combat genocide would be acceptable under 1-3, and violence to combat slavery would be justified under (4). Violence against “innocents” to combat genocide and slavery probably would fall into category (5), which Narveson describes as the “hard case.” Killing innocents to end slavery is akin to the shipwrecked Dudley and Stephens killing the innocent cabin boy to save their own lives.33 Indeed this is a classic hard case in criminal law. For the purposes of this essay I need not resolve the dilemma of law and morality the case presents. Rather I will simply acknowledge the dilemma. The case against harming innocents is not always as obvious as it first seems. As I suggest in Part III, the criminal law also presents a few compelling reasons to embrace utilitarianism, especially in extreme cases. We have the same two alternatives. We might eschew utilitarianism in criminal justice in every case, on grounds of moral consistency. We might, on the other hand, consider exceptions to the moral case against utilitarianism. In conclusion, yes, the terrorists of September 11 are evil. They sacrificed human beings to pursue objectives that they should have pursued in a different way, even if the methods they used were efficient. I believe the reliance on excessive 33See Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884). This analysis assumes, of course, that terrorism (e.g. killing innocents to defeat slavery) is efficient, in the same way that Dudley and Stephens knew that they would live if they killed and ate the cabin boy. For a fictionalized version of the issue in Dudley and Stephens, see Lon F. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616 (1949). 18 punishment in American criminal justice is evil in a like manner, and that this fact detracts from the force of our moral condemnation of terrorism. In the next sections, I explain why. II. MORAL STANDING Do Americans have moral “standing” to criticize terrorists because they use innocent lives as a means to an end?34 Perhaps not. I will explain in the next section how our criminal law also uses harm as a means to an end. I must first address, however, why moral standing matters.35 34 Robin West, Symposium on Taking Legal Argument Seriously: Taking Moral Argument Seriously, 74 Chi.-Kent L. Rev. 499, 500 (citing .Ronald Dworkin for the proposition that “the determinacy, integrity, coherence, and ‘wholeness’ of law are central to its moral standing and to our status as free and equal individuals deserving its respect” ). 35Robert Wright has made a socio-biological argument in favor of moral standing. As summarized by Amy Wax his argument is that “reputation – that is, what others say about us and how we appear in their eyes – acquires enormous importance. The quest for moral standing is primarily a manifestation of the ‘desire to be known as a reliable reciprocal altruist,’ and the aim of conscience, and of feelings of guilty and shame, is not primarily to make us generous and decent, but to drive us to cultivate a reputation for generosity and decency. Wright asserts that it is the desire for a virtuous reputation that ‘helps give consensual moral codes their tremendous power.” Amy L. Wax, Review: Against Nature - On Robert Wright’s The Moral Animal, 63 U. 19 20 Chi. L. Rev. 307, 321 (reviewing Robert Wright, The Moral Animal: Evolutionary Psychology and Everyday Life (1994) ). Standing is the legal doctrine that describes the necessary relationship between a litigant and a claim in order for the litigant to seek redress in court.36 In a federal case, for example, the plaintiff must prove that “he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.”37 In legal scholarship standing has been used a metaphor to discuss the significance of voice.38 Some speakers are more credible than others, the argument goes, because of who they are, or what they have experienced. In this analysis, 36“Standing,” even in the legal, non-metaphorical sense, has eluded precise definition. See Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1372 (1988) (“It is almost de rigueur for articles on standing to quote Professor Freund’s testimony to Congress that the concept of standing is “among the most amorphous in the entire domain of public .aw. One of the traditional criticisms of standing law is that it is confusing and seemingly incoherent. Even the staunchest judicial advocates of the doctrine readily admit as much: ‘We need not mince words when we say that the concept of Art.III standing’ has not been defined with complete consistency. . . .” 37Valley Forge Christian College v. Americans United for Separation of Church and State Inc., 454 U.S. 464, 472 . 38In a famous essay, Professor Richard Delgado suggested that white academics write differently about anti-discrimination laws than do scholars of color. Professor Randall Kennedy, responding, accused Delgado of arguing that white scholars do not have “racial standing” to write about anti-discrimination law. Other legal scholars have referred to a concept of “moral standing,” although they have not defined this term. 21 standing is more about legitimacy than rights. In the academy, a scholar has the “right” to discuss whatever she wishes. We might, however, respect her views more if we believe that she is a credible person. Moral standing is, in essence, an academic rendering of the folk expression that a person should “practice what he preaches”. If one doesn’t practice what he preaches, it does not necessarily mean that the sermon is incorrect. Rather, the implied critique is that the preacher is a hypocrite. So what if the United States is a hypocrite on the world stage with regard to certain issues, including the permissible uses of violence? In a strictly legal sense, “so what” is the correct response. Remember, though, that moral standing is about legitimacy and not about rights. Law is not the only, and sometimes not the main, source of influence, power, and authority. Particularly in the context of international law, politics and morality matter. Because the norms of international law, the means of enforcing it, and the penalties for violating it are evolving, moral authority sometimes might be as important, or determinable, as legal authority.39 In the war 22 39Several commentators have made “moral standing” critiques of United States involvement in international affairs. Former United States Attorney General Ramsey Clark made the argument that the International Tribunal for the former Yugoslavia lacked the legitimacy to try former Yugoslav president Slobodan Milosevic . He urged Milosevic’s defense to “talk about the responisilibty of the united States in the NATO bombings of Yugoslavia, for 78 days ... for the foreceful departure of hundres of thousands of Serbs from Kosovo ... and for the current crisis in Macedonia.” Agence France Press, Milosevic advised by former US attorney general, July 31, 2001. Likewise, William D. Hartung, speaking of the NATO campaign in Kosovo, wrote “The bominb may or may not be ‘degrading’ Milosevic’s forces, but they have certainly degraded he standing of the United States as a world leader....And unitl it sheds it role as a UN deadbeat, the United States will have little political or moral standing to promote a comprehensive plan for against terrorism, the United States government has professed indignation at terrorism; it repeatedly casts the terrorists as “evil” and “uncivilized.” It has demanded, in uncompromising rhetoric, the rest of the world’s support in military actions against terrorists.40 If, in fact, the United States has not practiced what it has preached about the use of violence to achieve social objectives, its leadership position in the war against terrorism might be compromised. Unlike legal standing, however, moral standing is not an all or nothing proposition. The fact that the United States might also engage in utilitarian violence does not mean that it has no authority to criticize others who do, but it does diminish the force of the critique. My recommendation is not that citizens of the United States cease criticism of terrorists, but that they recognize their critique as one of utilitarianism, and then begin it at home. The next section suggests that the criminal law is an appropriate place to start. III. THE CRIMINAL LAW AND UTILITY A Thought Experiment Suicide terrorists are not deterred by what is generally thought of as the sharing the burdens of peacekeepiing with key7 allies and regional organizations. William D. Hartung, A Degrading Policy. Global Beat Syndicate, April 8, 1999 at hyyp://www.nyu.edu/globalbeat/syndicate/Hartung0499.html. When the United States threatened not to attend a U.N. conference against Racism, Matthew Rothschild wrote “the overriding purpose of the ... conference – to take a stand against racism in all its guises – s so urgent and loft7 that to spurn it is to diminish not the importance of the conference but the moral standing of the United States itself.” Mattthew Rothschild, Distrace in Durban, The Progressive, Aug. 30, 2001. After the U.S. left the conference, Karen K. Narasaki, president of the National Asian Pacific American Legal Consortium said “You certainly don’t’ build your moral standing in the world by running away.” Rachel L. Swarns, The Racism Walkout: The Overview; U.S. and Israelis Quit Racism Talk over Denunciation, N.Y. Times, Sept. 4, 2001, at A1. 23 ultimate sanction, the death penalty. This does not, however, mean that they are undeterrable. It means only that the taking of their lives is not a severe enough sanction. 40Cite bush speech in which he said you are either with us or with the terrorists. 24 Imagine that the Central Intelligence Agency lets it be known that its agents will assassinate five members of the immediate family of any terrorist who died in a suicide attack. It believes that this punishment will be greater deterrence than any possible punishment of an individual terrorist. The CIA’s objective is to prevent future terrorism. Thus, to send a message to potential terrorists, it plans to kill five family members of each of the nineteen September 11 suicide terrorists.41 Should it? Does your answer depend upon how certain we are of the potential for future terrorism, and the deterrent effect of the CIA’s act? Suppose we knew that the CIA’s act would deter at least one future attack, in which many more lives would be lost than the ninety-five that the CIA would take? This thought experiment is a more severe variation of the well-known “ticking time-bomb” hypothetical. This scenario, long included in criminal procedure casebooks, sadly, is no longer academic. It asks us to imagine that a person in police custody has information about the location of a bomb that is timed to explode in one hour. The person refuses to talk to the police. Should the police be allowed to torture him to force him to talk? If you think that the government should be allowed to kill or torture for the greater good, you are a utilitarian. What you have in common with terrorists is either a disregard for morality, or a construct of it that allows the sacrifice of human lives or 25 41The Associated Press reported that on March 4, 2002 “Israel stepped up reprisals for Palestinian [terrorist] attacks, and Palestinians said 16 people were killed by Israeli fire, including the wife and three children of an Islamic militant leader...”. Greg Myre, Israeli Warplanes Fire on Arafat’s Office in Bethlehem, Sixteen Palestinians Killed Amid Israeli Reprisals, March 4, 2002. dignity for the greater good. If, on the other hand, you believe that the state should not kill or torture - even when the stakes are as high as they are in the thought experiment - ask yourself whether utilitarianism is warranted when its benefits are significantly lower. Although United States law does not allow the government to punish innocent people, or to torture anyone, it apparently does permit other forms of utilitarianism, even when innocent lives are sacrificed. There are examples immediately related to the events of September 11, 2001. After the hijacked commercial airplanes crashed into the twin towers of the World Trade Center and the Pentagon, the government learned of another hijacked aircraft that appeared to be heading towards Washington, D.C. The President and the Secretary of Defense each independently authorized the military to shoot down the plane, even though they knew that many innocent lives would be lost.42 Military action turned out not to be necessary, apparently because of the heroic, self-sacrificing acts of some of the passengers of the aircraft.43 42Dan Balz and Bob Woodward, America’s Chaotic Road to War; Bush’s Global Strategy Began to Sahel in First Frantic Hours after Attack, WASH. POST, Jan. 27, 2002 at A1. (“Bush spoke again to Chen, who said the combat air patrol needed rules of engagement if pilots encountered an aircraft that might be under the control of hijackers. Cheney recommended that Bush authorize the military to shoot down any such civilian airlines – as momentous a decision as the president was asked to make in those first hours. ‘I said ‘you bet’ Bush recalled. “We had a little discussion but not much.’” 26 43See Charles Lane, Don Phillips and David Snyder, A Sky Filled With Chaos, Uncertainty and True Heroism; Passenger on One Plane Relayed Plan; Controllers Scrambled to Track Flights, WASH. POST, Sept. 17, 2001, at A3 (“The phone call [made by a passenger from the plane] ... offers the most detailed evidence yet of the passenger revolt aboard Flight 93 that may have caused the plane to crash short of its intended target – believed to be Washington. In other phone calls, two passengers told people on the ground they were planning to try to overpower The subsequent war between the United States and the Taliban, like every war, also cost innocent civilians their lives. Several commentators have noted that it is likely that more innocent civilians have been killed by Americans in the war in Afghanistan than died in the attack on the World Trade Center44. Nicolas Kristof, writing in the New York Times, argued despite this fact, the war is justified because it will save “one million lives over the next decade” because the Taliban government that was overthrown did not provide or allow adequate health care to Afghan citizens, especially women and children.45 The lesson, Kristof concludes, is that “guns and bombs can saves lives as much as scalpels and IV tubes do” and that “[m]ilitary intervention, even if it means lost innocent lives on both sides, can serve the most humanitarian of goals.”46 the hijackers.” 44Nicholas D. Kristoff, A Merciful War, N.Y. TIMES, February 1, 2002, Editorial Desk, at A25. 45Id. 46Id. 27 Thus far these real life examples of utilitarianism involve the law of war. War is, famously, hell, and perhaps that explains the perceived necessity of sacrificing the innocent.47 Yet, as demonstrated below, civilian law also authorizes the deliberate infliction of pain for the good of the whole. Utilitarian Punishment A leading criminal law textbook states that “prevention theories furnish a widely accepted rationale of the practice of punishment. According to these theories, punishment should be designed not to exact retribution on convicted offenders but to prevent the commission of future offenses.”48 The major forms of utilitarian punishment are deterrence, incapacitation, and rehabilitation. The philosophical counterpoint to utilitarian punishment is retribution, which measures punishment exclusively by the criminal’s “just deserts.” Retributivists believe that punishment that exceeds individual desert is immoral. Despite efforts to reconcile utilitarianism and retribution, the two philosophies “conflict with each other. Although adherents of both theories may agree on results in particular cases, a criminal justice system that seeks, exclusively, to prevent future crime will look very different from one that seeks, exclusively, to impose punishment 47There are also compelling examples of anti-utilitarian acts during war. The precept that if a soldier is stranded in enemy territory he will not left behind may result in a net lost of life, i.e. other soldiers may be killed in an effort to save their fallen brother or sister. During the U.S. intervention in Somalia, as dramatically depicted in the film Black Hawk Down, several American troops lost their lives in an effort to save the lives or recover the bodies of their fallen comrades. 28 48Kadish and Schulhofer, supra at 115-16. based on a just-deserts philosophy.”49 49Id. But see Paul H. Robinson and John M. Darley, The Utility of Desert, 91 Nw. U.L. Rev.453 (Winter, 1997) (arguing that although “the underlying rationales of [retribution and utilitarian punishment] may be irreconcilable, their practical applications, properly done, suggest similar distributions of liability and punishment”). Although Immanuel Kant argued that retribution is fundamentally inconsistent with utilitarian justifications of punishment, “many scholars have sought to justify a mixed theory of criminal punishment. They distinguish between, on the one hand, the general justifying aim of the criminal law, and on the other hand, the rules of criminal responsibility that determine who should be punished and how severe the punishment should be. Many have argued that the general aim of the criminal law - the reason why society has a criminal justice system - is to deter unwanted behavior. Nonetheless, some of these same utilitarians apply retributive concepts of just deserts in determining whether and how much to punish a particular person.” See Dressler, Understanding Criminal Law at 17. Norval Morris is the best known exponent of this “hybrid” theory of punishment, also known as the “middle way.” See, e.g. Norval Morris and Michael H. Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System (1990); Norval Morris, Madness and the Criminal Law (1982); Norval Morris, The Future of Imprisonment (1974). 29 The severe punishment for drug crimes favored by most American jurisdictions is a troubling example of the conflict between utilitarianism and retribution.50 It is difficult to justify long sentences for drug crimes on ground of individual desert. Indeed, retribution probably is not the principle animus of these sentences.51 As a former United States Sentencing Commissioner noted “[I]n the area of crimes related to drugs, crime control goals rather than just deserts . . . prevail...”). 52 There is some evidence that these sentences have achieved their goals. Since the war on drugs resulted in more severe punishment, an extraordinary number of people have been punished for using or selling drugs. Deterrence is notoriously difficult to measure, but to the extent that fewer people are arrested for those crimes now, the stricter sentences may have been effective.53 Unless there is a virtually unlimited number of people willing to sell drugs, it seems reasonable to believe that incarcerating drug sellers for long periods of time will achieve the social benefit of reduced drug sales. Other examples of criminal justice premised on utilitarianism are recidivist 50On average, drug offenders serve longer federal sentences (78 months) than federal prisoners incarcerated for rape (67 months), burglary (51 months), aggravated assault (50 months) and auto theft (37 months). See BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1996, AT 476 (1996). 51Professor Sara Sun Beale has noted “It seems doubtful whether drug offenses evoke the strongest retributive impulses. It seems more likely that three strikes and mandatory minimum legislation [for drug offenses] is based upon a deterrent view of the purposes of criminal sanctions.”). Sara Sun Beale, What’s Law Got to Do with It? The Political, Social, Psychological and Other Non-Leal Factors Influencing the Development of (Federal) Criminal Law, 1 Buff. Crim. L. Rev. 23, 56 (1997). 52Ilene H. Nagel, Foreword: Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. Crim. L. & Criminology 883, 914 n.190 (1990). 30 53Cite example of crack statutes, e.g. “three strikes and you’re out” laws, and the practice of treating children who commit serious crimes as adults, for the purpose of punishing them more severely.54. Is the only important question to ask about these practices whether they are efficient? If getting tough on drug offenders, recidivists and child delinquents makes us safer, should that be the end of the inquiry? To answer that there are moral reasons to be concerned about punishment that exceeds individual desert is hardly to stake out a groundbreaking or radical position. In 1797 Immanuel Kant warned that “one man ought never to be dealt with merely as means subservient to the purpose of another.”55 The dignity of human life is offended whenever people are hurt or killed for reasons other than their individual desert. To do so is to treat a human being like a beast of burden. The history of the United States, and the world, is full of examples of the horrors to which such thinking leads. September 11 is only the most recent prominent example. My concern, however, is the critique of utilitarianism seems to have much resonance for Americans when applied to terrorism and little resonance when applied to punishment. 54See Paul H. Robinson, Commentary: Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 Harv. L. Rev. 1429, 1433. 55Immanuel Kant, The Metaphysical Elements of Justice 100 (John Ladd trans., Bobbs-Merrill Co. 1965) (1797). 31 There are at least three possible explanations for a different assessment of the morality of cost-benefit analysis when applied to terrorism than when applied to punishment. It may be that Americans prefer the state to exercise a monopoly on the power to intentionally inflict harm. Under this view, even if the state abuses its power, it still acts more legitimately than terrorists, because it is subject to democratic constraints.56 The problem with this view is that it probably is not a correct assessment of the way we really think about private violence. American law, for example, allows private violence in several contexts, including defense of self, of others, of property, and to prevent crimes. Moreover, recalling the discussion in Section I, we can think of other cases in which private violence would be illegal but still morally right in the eyes of many. Again, the examples of violence to combat slavery and genocide come to mind. 56Note that in some American wars, though, the democratic process is not observed, by for example, no Congressional authorization. 32 Perhaps we differ in our moral assessment of terrorism and excessive punishment because terrorists harm “innocent” people, but punishment harms criminals.57 This explanation is factually correct: criminals by definition are guilty. Some people may not care about disproportionate pain inflicted on criminals, and this view probably accounts for much of the differing assessment of morality between utilitarian punishment and terrorism. Even those who endorse utilitarianism, though, probably have some limit on punishment, for the sake of morality. There seems to be widespread revulsion at perceived excessive punishment in other cultures, for example, punishing a thief by cutting off his hands. Most Americans probably would not want Susan Smith to be strapped to a car which was then pushed into a lake, even though that is how she killed her own children. Likewise, most American utilitarians probably would not endorse a sentence of life imprisonment for a shoplifter, even if that punishment would be socially useful. In sum, the fact that criminals, not innocents, are the victims of utilitarian violence probably explains some, but not all, of the distinction in our moral assessment of utilitarian terrorism versus utilitarian punishment. The final explanation I will posit is that our view of the morality of cost- benefit analysis depends on our relationship to those costs and benefits. Assuming that the benefit of utilitarian punishment is a net increase in public safety, we do not mind that the cost is excessive punishment. Furthermore, the burden is not one that most of us bear. The criminal is most often perceived as the “other.” In the case of 33 57But see Thomas Ross article on white innocence. modern day terrorism, on the other hand, there is nothing about it that benefits us. Moreover, we disproportionately bear the costs. We try to make terrorism inefficient by taking steps to make sure that the terrorists do not “win,” but, as described in Part I, whether terrorism is efficient is mainly a calculation for terrorists. Our trump card is that terrorism is evil. Perhaps by “evil,” though, we mean that there is nothing in it for us. Hard Case As noted in Part I, the issue of whether private violence, directed at innocents, is morally acceptable as part of an effort to defeat slavery or genocide is, for me, a difficult case. The criminal law also presents difficult cases that make me question an absolute condemnation of utilitarian punishment. In Kansas v. Hendricks, the Supreme Court considered the constitutionality of the Kansas Sexually Violent Predator Act. The Act authorized the indefinite civil commitment of certain “sexually violent predators” who were scheduled for release after serving their criminal sentences. The law was passed because the legislature believed that some sexual predators are likely to engage in repeat acts of sexual violence, that they are not likely to rehabilitated in prison, and that their treatment needs are very long term.58 Leroy Hendricks was committed after already serving a ten year prison sentence for “taking indecent liberties” with two children.59 Hendricks “recognized that his [sexual abuse] harms children, and he hoped he 58351 34 would not sexually molest children again [but] he stated that the only sure way he could keep from sexually abusing children in the future was ‘to die.’”60 He challenged his post sentence confinement claiming that the application of the Act to him violated the Constitution’s due process, double jeopardy, and ex post facto clauses. The Supreme Court ruled that the Kansas statute was constitutional. It found that confinement was not “criminal punishment” and thus the double jeopardy and ex post facto clauses were not implicated. Four justices dissented.61 They believed that the Kansas statute “was not simply an effort to commit Hendricks civilly, but rather an effort to inflict further punishment upon him.”62 59354 60355 61372 62372. 35 I agree with the dissenters’ analysis of the Constitution, but I am sympathetic to the practical result of the majority opinion.63 I agree that a man should be confined when it is virtually certain that he will abuse children if he is not confined. Since I think that this confinement is “punishment,” I find myself endorsing a form of utilitarian punishment. There exists the same two possibilities as when, in Part I, I endorsed violence to end slavery and genocide. The first possibility is that I am simply not consistent in my application of morality. The alternative is that, within a construct of morality that generally opposes utilitarianism, there might be room for limited exceptions. In Part I, Professor Narveson’s ranking of justifiable categories of violence was helpful in explaining differences in the moral assessment of the September 11 terrorists versus anti-slavery terrorists. Let’s revisit the ranking to see if we might extrapolate guidance on when violence is acceptable in criminal contexts. Categories (1) - (4) permit the use of violence for defense of self or others, or to prevent longer-range threats to life and liberty. Violence in these contexts is also permitted by many American criminal codes. Narveson’s Category (5) “hard case” is violence (against innocents) to promote a minimally acceptable life when no other means is possible. Remembering that punishment is a form of violence, it may be possible to gauge, roughly, the fairness of utilitarian punishment using this construct. The confinement of Hendricks seems to fall under category (5). Here’s the argument: Hendricks is “innocent” in the sense that civil confinement is punishment 36 63Cite your Legal Times article on Hendricks. in excess of his desert, but the purpose of this punishment to promote “minimally acceptable” conditions (for society) when no other means is possible. The only way to prevent him from sexually abusing children is to lock him up. Utilitarian violence (punishment) here is “marginally acceptable if at all,” in Professor Narveson’s analysis. Excessive punishment of drug offenders, on the other hand, seems closer to Category (6): promoting a better life for oneself or others, beyond the minimally acceptable level of (5). Most people would agree that an unreformed child molester presents a more urgent danger than an unreformed drug user or seller. Child molesters have victims, for example, while drug crimes are victimless. Even assuming that excessive punishment of drug offenders prevents drug crimes, there is less social benefit than prevention of child sex abuse. While close cases, the former seems closer to category (6) and the latter to category (5). Category (6), recall, is “definitely not acceptable.” I think that a persuasive argument can be made that prevention of child sex abuse warrants utilitarian punishment even when prevention of drug crimes does not. In any event, utilitarian punishment would be the rare case, even if the punishment is socially useful. Because utilitarian punishment is common now, our criminal justice system would be quite different without it. The consequences of punishing drug offenders, recidivists, and child delinquents exclusively on the basis of their just deserts (desert measured either by moral blameworthiness, or harm caused) are enormous. These consequences are practical, as well as moral. The 37 abandonment of utilitarianism as the primary justification of punishment would result in, inter alia, less punishment generally, and shorter sentences for drug offenders, specifically.64 Since minorities are disproportionately imprisoned for drug offenses, the disparity in punishment between whites, on one hand, and African-Americans and Hispanics on the other hand, would be reduced. In other words, significant reform of criminal justice would be accomplished. Citizens of the United States are engaged in wide-ranging, national conversation about the meaning of September 11, 2001. I hope that one of the lessons of that terrible day is a better understanding of the dangers of utilitarianism, and a recognition of that danger in our own law and morals. 38 64See Paul Butler, Retribution, for Liberals, 46 UCLA L. Rev. 1873 (arguing that if retribution was the justification of punishment, many of the reforms of criminal justice that liberals have sought would be accomplished).