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I want to talk to you today about an aspect of the rights revolution—namely, how the current state of our criminal justice system has affected the ideal of personal responsibility. I am convinced that there can be no freedom and opportunity for many in our society if our criminal law loses sight of the importance of individual responsibility. Indeed, in my mind, the principal reason for a criminal justice system is to hold people accountable for the consequences of their actions. Put simply, it is to hold people's feet to the fire when they do something harmful to individuals or society as a whole.
Let's begin with the most practical reason for why we hold people accountable. The law cannot persuade where it cannot punish. Alexander Hamilton made this very point when he observed, "It is essential to the idea of a law that it be attended with a sanction ... a punishment for disobedience." Most of us, I sure, are regularly faced with the deterrent of the law, the incentive not to engage in conduct that might harm others, To be sure, choose to honor speed limits because such behavior might well save our own lives. But we just as surely follow the rules because of legal consequences of speeding—harsh fines and possible loss of our licenses.
Some underscore a difference aspect of human nature in explaining why holding people responsible for their actions, is central to our criminal justice system. Unlike any living creature in the world, humans are moral, rational and thinking beings. We, therefore, expect one another to be able to distinguish between right and wrong and to act accordingly. Thus, when society punishes someone for breaking the law—when it holds him accountable for the consequences of his acts—we are recognizing that only mankind is capable of being moral or rational. We are, in short, acknowledging the human dignity of our fellow man. Indeed, people thrive in our society because of the expectations we all have regarding the capacity of the human will to do good. But to disregard this potential—to ignore the fact that someone has harmed others by breaking the law—treats our fellow man as beings that are incapable of determining right from wrong and controlling their behavior.
There are others who believe that the principle reason we hold people responsible for the consequences of their actions is because of our mutual political or social obligations in a civilized, democratic society, In accepting and benefiting from the wonderful opportunities of our free society, we each consent or agree to be bound by the rules and expect government to enforce them. When someone breaks the law, a fundamental trust has been violated. In effect, the lawbreaker is telling all of us that there can be no mutual expectation that society's rules will be followed and thereby protect all of us. On this view, we punish the criminal because he owes a debt to society for violating our trust. To do otherwise would cheat those who abide by law, and dilute the threat of force that the law is supposed to convey. And, if our government failed to remedy wrongs by holding people responsible for their acts, we would be faced with the prospect of vigilante justice and all the evils that accompany it.
For these and other reasons, then, I think most everyone agrees that we have a criminal justice system in order to hold people accountable. If properly administered, it stands to reason that the criminal law should help to ensure a greater degree of personal responsibility in our society. Put differently, the criminal law serves a signaling function when we hold people accountable for their harmful acts. Punishing people is an expression of society's resolve that certain behavior will not be tolerated either because it hurts others, is counterproductive or is offensive to the sensibilities of our culture. In the absence of such a signal if government does not punish harmful conduct we send a dangerous message to society.
One must wonder, though, whether our criminal law is carrying out this signaling function. Why are so many of our streets rife with drug bazaars and other criminal enterprises? Why are so many of our schools devoid of the discipline that is necessary for a healthy learning environment and instead plagued by lawlessness? Why is there unprecedented fear of violence among so many of our fellow citizens?
One reason, I believe, is that the rights revolution worked a fundamental transformation in our criminal law. The very same ideas that prompted the judicial revolution in due process rights for the poor and that circumscribed the authority of local communities to set standards for decorum and civility on the streets or in the public schools also made it far more difficult for the criminal justice system to hold people responsible for the consequences of their harmful acts. I want to focus on one particular force behind the rights revolution that in my view had the most profound effect on the direction of the criminal law: namely, the idea that our society had failed to safeguard the interests of minorities, the poor and other groups; and, as a consequence, was, in fact, primarily at fault for their plight.
Much of the judicial revolution in individual rights was justified on the ground that the dignity and well-being of large segments of our population—minorities, women, the poor—were consistently ignored by our social and political institutions. As the victims of centuries of discrimination and oppression, blacks and other minorities could not enjoy the full benefits and opportunities that society had to offer. So too were the poor viewed as victims—uncontrollable forces contributed to their poverty, and yet their "stake" in welfare and other public benefits was not insulated from unregulated state power in the same way as the property interests of the more fortunate in society.
These concerns greatly influenced our courts in requiring that government hold hearings or comply with other procedural requirements before terminating public benefits received by minorities and the poorest of Americans. The view was that these entitlements were worth protecting because they aid the poor and under-represented in achieving security and well-being.
Procedural protections also were viewed as necessary to ensure that government interference with public benefits was not arbitrary and unfair. Because minority and disadvantaged students are the most frequent objects of school discipline, for example, advocates of greater constitutional protections insisted that the absence of stringent procedural requirements for suspension could lead to racial discrimination and other forms of unequal treatment. Much the same arguments were made regarding limits on the power to evict tenants from public housing and to enforce broad vagrancy or anti-panhandling laws—government discretion had to be curbed in order to ensure that minorities or unpopular groups were not singled out for unfair and discriminatory treatment.
We can see, then, how the intellectual currents of the legal revolution in individual rights affected the management of community institutions such as schools and the civility of our streets, parks and other common spaces. But how did the ideas underlying this revolution affect the functioning of the criminal justice system?
Many began questioning whether the poor and minorities could be blamed for the crimes they committed. Our legal institutions and popular culture began identifying those accused of wrongdoing as victims of upbringing and circumstances. The point was made that human actions and choices, like events in the natural world are often caused by factors outside of one's control. No longer was an individual identified as the cause of a harmful act. Rather, societal conditions or the actions of institutions and others in society became the responsible causes of harm. These external causes might be poverty, poor education, a faltering family structure, systemic racism or other forms of bigotry, and spousal or child abuse, just to name a few. The consequence of this new way of thinking about accountability and responsibility—or lack thereof—was that a large part of our society could escape being held accountable for the consequences of harmful conduct. The law punishes only those who are responsible for their actions; and in a world of countless uncontrollable causes of aggression or lawlessness, few will have to account for their behavior.
As a further extension of these ideas, some began challenging society's moral authority to hold many of our less fortunate citizens responsible for their harmful acts. Punishment is an expression of society's disapproval or reprobation. In other words, punishment is a way of directing society's moral indignation toward persons responsible for violating its rules. Critics insisted, though, that an individual's harmful conduct is the only relevant factor in determining whether punishment is morally justified. The individual's conduct must be judged in relation to how society has acted toward that individual in the past. In this regard, many began appearing hesitant to hold responsible those individuals whose conduct explained as a response to societal injustice How can we hold the poor responsible for their actions, some asked, when our society does little to remedy the social conditions of the ill-educated and unemployed in our urban areas? In a similar vein, others questioned how we could tell blacks in our inner cities to face the consequences for breaking the law when the very legal system and society which will judge their conduct perpetuated years of racism and unequal treatment under the law.
Once our legal system accepted the general premise that social conditions and upbringing could be excuses for harmful conduct, the range of cases that might prevent society from holding anyone accountable for his actions became potentially limitless. Do we punish a drunk driver who has a family history of alcoholism? A bigoted employer reared in a segregationist environment, who was taught that blacks are inferior? A thief or drug pusher who was raised in a dysfunctional family and who received poor education? A violent gang member, rioter or murderer who attributes his rage, aggression and lack of respect for authority to a racist society that has oppressed him since birth? Which of these individuals, if any, should be excused for their conduct. Can we really distinguish among them in a principled way?
An effective criminal justice system—one that holds people accountable for harmful conduct—simply cannot be sustained under conditions where there are boundless excuses for violent behavior and no moral authority for the state to punish. If people know that they are not going to be held accountable because of a myriad of excuses, how will our society be able to influence behavior and produce incentives to follow the law? How can we teach future generations right from wrong if the idea of criminal responsibility is riddled with exceptions and out governing institutions and courts lack the moral self-confidence? A society that does not hold someone accountable for harmful behavior can be viewed as condoning—or even worse, endorsing—such conduct. In the long run, a society that abandons personal responsibility will lose its moral sense. And it is the urban poor whose lives are being destroyed by this loss of moral sense.
This is not surprising. A system that does not hold individuals accountable for their harmful acts treats them as less than full citizens. In such a world, people are reduced to the status of children or, even worse, treated as though they are animals without a soul. There may be a hard lesson here. In the face of injustice on the part of society it is natural and easy to demand recompense or a dispensation from conventional norms. But all too often, doing so involves the individual accepting diminished responsibility for his future. Does the acceptance of diminished responsibility assure that the human spirit will not rise above the tragedies of one’s existence? When we demand something from our oppressors—more lenient standards of conduct, for example—are we merely going from a state of slavery to a more deceptive, but equally destructive, state of dependency?
It also bears noting that contemporary efforts to rehabilitate criminals will never work in a system that often neglects to assign blame for their harmful acts. How can we encourage criminals not to return to crime if our justice system fosters the idea that it is society that has perpetuated racism and poverty—not the individuals who engage harmful conduct—that is to blame for aggression and crime, and thus, in greatest need of rehabilitation and reform.
The transformation of the criminal justice system has had and will continue to have its greatest impact in our urban areas. It is there that modern excuses for criminal behavior abound—poverty, substandard education, faltering families, unemployment, a lack of respect for authority because of deep feelings of oppression.
I have no doubt that the rights revolution had a noble purpose: to stop society from threatening blacks, the poor and others, many of whom today occupy our urban areas— as if they were invisible, not worthy of attention. But the revolution missed a larger point by merely changing their status from invisible to victimized. Minorities and the poor are humans—capable of dignity as well as shame, folly as well as success. We should be treated as such.
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