Civil Disobedience and Desert Theory of Punishment

Vance Kelley

I. Introduction In this paper, I discuss how the state ought to punish civil disobedience given a desert theory of punishment. By “desert theory of punishment,” I mean the view that lawbreakers ought to be punished according to what they deserve. Other considerations, such as what would best deter or incapacitate lawbreakers, are to be ignored according to desert theory. Since there are many distinct notions of “civil disobedience,” I will also clarify my use of this phrase. I use “civil disobedience” to mean “breaking the law in order to communicate to the public and the state that a policy violates the lawbreaker’s moral convictions.” My definition leaves aside whether civil disobedience is nonviolent or a last resort (as John Rawls supposes), although these features could marginally affect how civil disobedience ought to be punished (1). Ultimately, I conclude that states ought to punish all civil disobedience less harshly than typical offenses. I arrive at this “mercy for all” view in a roundabout way. In fact, I initially point out a shortcoming with this view in Section III. In Section IV, I examine an alternative view that advocates lesser punishment only for civil disobedience done from correct moral convictions. I argue that this “mercy for correct moral convictions” view is impractical, since the state cannot identify who disobeyed from correct moral convictions and who disobeyed from incorrect ones. This leads me to argue in Section V that the state must punish all civil disobedience uniformly, without regard to the correctness of civil disobedients’ moral convictions. I then conclude that the best uniform punishment is indeed to treat all civil disobedience with mercy, since this avoids over-punishing those who act from correct moral convictions.

II. Why Desert Theory? As I have said above, my central claim is that given desert theory of punishment, the state ought to punish all civil disobedience mercifully. Some may find it perplexing that my central claim accepts desert theory as the correct theory of punishment, and indeed this needs to be justified. Simply put, I accept desert theory because it best captures our intuitions about disciplining lawbreakers. Most of us share the intuition that it is wrong to punish innocent people as well as the intuition that it is wrong to over-punish the guilty. Desert theory offers an explanation of these intuitions; it is wrong to punish the innocent and to over-punish the guilty because these conflict with what people deserve. Innocent people do not deserve to be punished at all, and guilty people deserve to be punished in proportion to the severity of their crimes. Yet alternatives to desert theory—such as theories that recommend punishments based on their incapacitation or deterrence value—have a difficult time explaining why we hold the above intuitions (2). In fact, these “consequentialist” theories of punishment would suggest punishing the innocent or over-punishing the guilty if doing so deterred or incapacitated lawbreakers. For example, suppose that by executing a petty thief the state could deter all would-be thieves from stealing others’ property in addition to incapacitating the executed criminal. Consequentialist theories of punishment would recommend executing the petty thief even though this conflicts with our intuition that over-punishing him with death is wrong. Therefore, the problem with consequentialist theories of punishment runs even deeper than what Walen suggests. Not only do consequentialist theories fail to explain our intuitions about punishment; they also render verdicts that directly conflict with these intuitions. Of course, one could write volumes on the merits of different theories of punishment, and what I have written above merely scratches the surface. But I hope to have at least made the argument that desert theory is compelling, and my do- ing so should assuage concerns that I am unduly neglecting what consequentialist theories would say about punishing civil disobedience. Desert theory is the most plausible account of how we ought to punish lawbreakers, and I will now move on to my central concern: how should the state punish civil disobedience?

III. The Shortcoming of “Mercy for All” One initially plausible view is that given desert theory, all civil disobedience ought to be punished less harshly than typical offenses. Kimberly Brownlee discusses this “mercy for all” view in her Stanford Encyclopedia entry, writing that civil disobedients deserve mercy because they are motivated by moral convictions. The idea is that lawbreakers generally deserve mercy if obeying the law would have been very difficult for them, and civil disobedients’ moral convictions indeed make obeying the law quite difficult (3). Additionally, perhaps civil disobedients deserve mercy because their motives are less reprehensible than those of typical offenders. Breaking the law because of one’s moral convictions seems far less shameful than doing so out of self-interest, and this has long been held by legal scholars (4). The view that all civil disobedients deserve mercy because they act from moral convictions may therefore seem plausible, but it is not quite right. Surely, granting mercy even to civil disobedients who have incorrect moral convictions is too broad. These misguided disobedients do not deserve lesser punishments than typical offenders, and an example shall make this clear. Suppose a man publicly refuses to obey a law that protects gay citizens from discrimination. Believing that homosexuality is immoral and that the law unjustly protects wrongdoers, the man refuses to serve same-sex couples at his restaurant as a way of protesting the law. Clearly, the fact that his disobedience is done from a moral conviction does not make the man deserve lesser punishment than normal offenders (5). His moral conviction is severely misguided, detestable, and undeserving of mercy. Therefore, it seems that only civil disobedients who act from correct moral convictions deserve reduced punishments.

IV. The Impracticality of “Mercy for Correct Moral Convictions” I have just shown that only civil disobedients who act from correct moral convictions deserve mercy. Disobedience done from incorrect moral convictions, on the other hand, deserves no lesser punishment than normal. On desert theory, then, it seems rather straightforward that states ought to punish civil disobedients who hold correct moral convictions less harshly than normal offenders, while those with incorrect moral convictions ought to be punished at the standard level. However, this “mercy for correct moral convictions” view faces a significant problem. In practice, the state cannot administer the different levels of punish- ment that the view calls for. During sentencing, judges would need to discern who disobeys from correct moral convictions and who disobeys from incorrect ones. Yet typically judges will not be able to discern this, and instead they will view both types of civil disobedients as having incorrect moral convictions. This is because all civil disobedience expresses moral convictions contrary to those of lawmakers—that is the entire point of civil disobedience—and typically lawmakers’ convictions will also be held by judges. After all, in most democratic systems, lawmakers choose judges whose views accord with their own. Given that judges’ own moral convictions will agree with those of lawmakers and conflict with those of civil disobedients, judges will regard all civil disobedients as having incorrect moral convictions, for it will not matter that some civil disobedients’ convictions actually are correct and some are not. Admittedly, there may be cases where acts of civil disobedience convince judges that their moral convictions are wrong and that the disobedients’ convictions are correct. In such cases, judges could perceive that civil disobedience is being done from correct moral convictions, since here they do not allow their own moral convictions to cloud their judgment. That said, these cases are rare. Civil disobedients often fail many times before persuading the state that their moral convictions are correct. For example, the civil rights period in the United States lasted many years and required numerous instances of civil disobedience before judges and lawmakers were persuaded to end Jim Crow segregation. Generally, judges will view civil disobedients as having incorrect moral convictions even if some actually are correct; consequently, the state cannot give the different types of civil disobedients the disparate punishments that they deserve.

V. “Mercy for All” Revisited So, how can the state punish civil disobedience? It cannot discriminate between disobedients who have correct moral convictions and those who lack them. In- stead, the state must punish all civil disobedience uniformly, without regard to the truth of disobedients’ moral convictions. This may cause us to conclude that desert theory is false if “ought implies can.” If states only have moral obligations to do what is possible, then it is not the case that they ought to give different punishments to civil disobedients depending on the truth of their moral convictions. As I have shown in the previous section, it is generally impossible for the state to assess the truth of these convictions and give out different punishments for them. Yet “different punishments depending on the truth of civil disobedients’ moral convictions” seems to be exactly what desert theory entails. The view claims that states ought to punish lawbreakers according to what they deserve, and civil disobedients deserve different punishments depending on the truth of their moral convictions. Since desert theory seems to entail a false conclusion, it appears to be false. However, there is a way around this problem for the view. We can add a proviso to desert theory that handles cases where the state is unable to give lawbreakers the different levels of punishment that they deserve. According to this proviso, if a state cannot identify and administer these different levels of punishment, then it no longer ought to give lawbreakers these different levels. Instead, the state ought to choose a uniform level of punishment that gives no one harsher punishment than she deserves, even if this lets some lawbreakers receive undeserved mercy (6). One may wonder why this proviso places so much emphasis on treating no one worse than she deserves. But in fact, many people agree with the spirit of the proviso. We often say that it is better to let guilty people go free than to imprison someone who is innocent; this idea was formalized by British jurist William Blackstone and has remained a part of jurisprudence ever since (7). With this proviso added to desert theory, it no longer imposes a moral obligation that violates “ought implies can.” Now, states are simply obligated to impose a uniform level of punishment on civil disobedients, and this should pose no practical difficulties. Given this proviso, what uniform level of punishment does desert theory recommend for civil disobedience? This could take one of two forms (8). First, the state could show no mercy to any civil disobedients and punish all of them at the lev- el appropriate for normal offenders. But this would over-punish those who have correct moral convictions and deserve mercy, so it is ruled out by the proviso. Alternatively, the state could show mercy to all civil disobedients and punish them at the reduced level appropriate for those with correct moral convictions. This under-punishes civil disobedients with incorrect moral convictions (who deserve full punishments), but it avoids over-punishing those with correct moral convictions. Since this second option avoids over-punishment, it is favored by the proviso. Therefore, states ought to show mercy to all civil disobedients and punish them at the reduced level appropriate for those with correct moral convictions.

VI. Conclusion I have shown that given desert theory, we ought to punish all civil disobedience mercifully. I began in Section II by justifying and accepting desert theory, which claims that people ought to be punished according only to what they deserve. Then, in Section III, I examined my preferred view that all civil disobedients ought to be punished less harshly than typical offenders. I initially argued that this “mercy for all” view has a shortcoming: civil disobedients with incorrect moral convictions do not deserve mercy. Nonetheless, I returned to this view after recognizing in Section IV that it is impractical to give mercy only to disobedients with correct moral convictions. As I then explain in Section V, punishment of civil disobedience must therefore be uniform with respect to the truth of lawbreakers’ moral convictions. After adding a proviso to desert theory which accounts for this fact as well as our intuition that under-punishing is preferable to over-punishing, I return to the “mercy for all” view and accept it as the only one compatible with justice.


Endnotes

1 John Rawls, A Theory of Justice. Harvard Belknap Press, 1971. 320, 327. 135

2 Alec Walen, “Retributive Justice”. Stanford Encyclopedia of Philosophy, Fall 2020 Edition. https://plato.stanford. edu/entries/justice-retributive/. Section 1.

3 Kimberlee Brownlee, “Civil Disobedience”. Stanford Encyclopedia of Philosophy, Fall 2017 Edition. https:// plato.stanford.edu/entries/civil-disobedience/. Section 4.2. 4 Harrop A. Freeman, “The Right of Civil Disobedience”. Indiana Law Journal, Vol 4 Iss 2, 1966. https://www. repository.law.indiana.edu/cgi/viewcontent.cgi?article=3628&context=ilj. 228-254. 5 It might be hard to imagine the “normal offender” for this case. Here, it would be someone who refuses to serve gay citizens but does not do so to protest the antidiscrimination law. Perhaps this person thinks that serving gay citizens will cause him to lose the business of homophobic customers.

6 One might question why the new level of punishment must be uniform. For example, perhaps different levels of punishment could be administered on a random or arbitrary basis. But surely, such punishments would be unjust. 7 William Blackstone, Commentaries on the Laws of England, 1893. 358. 8 It could also take a third form, at a level somewhere between what the two groups of disobedients deserve. But this would obviously over-punish those who have correct moral convictions and be thrown out by the proviso.