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Victims and Retribution: A Reply to Professor Fletcher


Michael Moore*

I. WHAT IS THE QUESTION? George Fletcher rather vaguely enjoins me: to pay more "attention to the place of victims in the analysis of responsibility or in the rationale for punishment;"1 "to integrate victims into the justification for punishment;"2 "to recognize that doing justice to victims should be part of the theory of retributive punishment;"3 to include "the suffering of victims in [my] account of why punishment is deserved and therefore just;"4 and to integrate "the interests of victims... into the theory of retributive punishment."' Being more than a little unclear as to what I am being enjoined to think, say, or do here, I shall first spend some time clarifying what I take our topic to be. Let me begin by detailing what Professor Fletcher and I agree on, which is a good deal. What we disagree on is, of course, more interesting for everybody else. I understand that we are the entertainment here, so I won't tarry on our agreement. Still, you can see our disagreements more clearly within the parameters of what we agree on. There are five things on which we agree that set the parameters of our disagreements. The first is that the role of the victim of crime-at least at this level of abstraction-is to be ascertained by thinking through the theory of punishment. One's theory of punishment has to make room for victims if they are going
* Leon Meltzer Professor of Law, Professor of Philosophy, and Co-Director, Institute for Law and Philosophy, University of Pennsylvania. 1. George P. Fletcher, The Place of the Victim in the Theory of Retribution, 3 Buff. Crim. L. Rev. 51 (1999). 2. Id. at 52. 3. Id. at 55. 4. Id. 5. Id. at 63.

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to have some role that is justified in the criminal process. That is the first thing on which we agree, and this leads me to the second thing on which we agree, which is a retributivist philosophy of punishment. That Fletcher and I are both retributivists in our philosophy of punishment probably makes this discussion look like an exercise in Martian anthropology to many. We here openly confess that we are both card-carrying members of the Retributivist Theorists of America about criminal punishment. Criminal law exists to punish people because they deserve it, in proportion to their desert, and not because it causes some other good consequence. Thirdly, we are not retributivists of the "innerwickedness" kind that Fletcher referred to briefly. As Fletcher recognizes, one school of thought is that our moral blameworthiness is determined exclusively by our inner wickedness in thought or intention, not the outer manifestations of those thoughts or intentions in terms of the consequences of our actions (such as whether our intended victim actually dies, for example). There are certainly retributivists who claim that what deserves punishment are the inner thoughts of an individual. Fletcher and I are among those who think that although intentions count, also what those intentions cause in terms of bad results in the world-harm to victims-also count in determining overall blameworthiness. So we agree on that "moral luck" form of retributivism.8 Apparently, we also and fourthly agree that crime should not be collapsed into tort. Retributive justice is not the same as compensatory or corrective justice; it is distinct. That's why we're retributivists and not corrective justice theorists. Ten years ago the Bowling Green Center for Social Philosophy and Policy got together the leading

6. Compare George P. Fletcher, Rethinking Criminal Law (1978), with Michael S. Moore, Placing Blame: A General Theory of Criminal Law (1997). 7. Fletcher, supra note 1, at 52-53. 8. For a discussion of my reasons for adopting this kind of retributivism, see Moore, supra note 6, at 191-247.

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retributivists of America for discussion. 9 On the table for one of the discussions was Jeffrie Murphy, who was present. The issue was whether Jeffrie could keep his card in the club because he had taken what we called the "victim's turn." The victim's turn is taken when one holds that victims are the ones to determine whether an offender is punished, and to what extent. As Murphy recognized, this belief turned his system into an institutionalized form 0 For Murphy, victim preference determines of revenge. 1 whether (and to what extent) punishment should be suffered by an offender; desert of the offender only gives the state the right to punish, but it is the desire of the victim for vengeance that gives the state a reason to do what it has the right to do. Such victim determination of punishment is what Murphy recognized made him no longer a retributivist, and he put his card on the table. This is what makes Fletcher's view potentially interesting. He doesn't want to give up his retributivist card and yet he has moved off in the same direction as Jeff Murphy, from standard-issue retributivism to what Fletcher now calls victim-oriented retributivism. The question we thus should ask is: Is there logical space for this kind of theory? Are you driven, as Jeff Murphy thought, into some kind of restitutionary scheme to victims, which may serve corrective justice but not retributive justice? Or can you hang on to both your retributivism and victim determination of punishment? Fletcher is right about my views here: in the procedural sense I below distinguish, I ignore victims. Unlike Fletcher, I think victims should and must be ignored if you are claiming to be doing retributive theory. The fifth thing on which Fletcher and I agree is that victims should have no particular say on sentencing." I actually find that an odd thing for Fletcher to think, given
9. See Symposium, Crime, Culpability, and Remedy, 7 Soc. Phil. & Pol'y 1 (1990). 10. Jeffrie G. Murphy, Getting Even: The Role of the Victim, 7 Soc. Phil. & Poly 209 (1990). 11. Fletcher, supra note 1, at 52.

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his victim orientation about punishment. I'm not sure how Fletcher can agree with me here, given that he wants to give victims some say about plea bargaining and some say about trial strategy. 2 All three of those procedural settings-pretrial, trial, and sentencing-determine whether or not someone is punished and to what extent they are punished. I do not see why Fletcher wants to keep the victim's say out of sentencing when he does not want to keep the victim's say out of plea-bargaining and trial strategy. However, since I don't want victims to have any say anywhere in the criminal process, Fletcher's inconsistency here is not an argument that I shall pursue. So, there are five things on which Fletcher and I agree. These five items focus the question for us to debate: What's the role of victims in a properly retributive punishment scheme? Fletcher's answer is less clear than it might be because he (here at least) spends no time in laying out exactly what role he wishes to give victims in the criminal process. 3 He only tells us that his is a "victim-oriented" punishment scheme. I think you need to cash that out a bit. I can talk about victims too. But talk is cheap here. The question is, what do you want to do with victims if you have a "victim-oriented" retributive punishment scheme? Let me spend a little bit of time about this bottom line for Fletcher (or somebody in his position) before I come to the arguments why that is or is not a good thing. There are two very different things you can talk about if you're talking about the role of victims in a retributive theory of punishment. Call the first of these the substantive connection between victims and retributive punishment. The substantive question asks, what's the place of victims in the justification of punishment for the retributivist? That's a theoretical question. It's not a
12. Although Fletcher in his paper in this volume only glancingly considers the procedural roles of victims in pre-trial plea bargaining and in at-trial strategizing and settlement, he elsewhere defends a significant victim role in these procedural settings. See George P. Fletcher, With Justice for Some: Victims' Rights in Criminal Trials 188-201 (1995). 13. But see id.

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procedural question about what victims get to do at trial, at


sentencing, or anywhere else. It's rather a question of what place victims occupy in the justification of punishment. Let me spend a little bit of time on the substantive or theoretical question because I think it throws light on the second, the procedural, question. Victims have a lot to do with the justification of This is because the punishment for a retributivist. by the desert of the justifies punishment retributivist offender. Such desert is constituted by the wrong that was done by the offender and the culpability with which he did that wrong. 14 With regard to wrongdoing, it takes not just a voluntary act causing something to happen to do wrong. In addition, the something that happens has to be such that it violates some kind of a norm. Fletcher appears to attribute my theoretical indifference to victims to my preoccupation with norm violations by criminals, yet all retributivists-not just Moore and Hegel-care about norm violations in criminal law. Any kind of retributivist needs a norm violation to justify punishment. It is at this point that victims come in substantively. Victims come in as part of the content of those norms. To see this, let us step back for a moment. Any criminal code consists of a set of legal norms. The norms of any criminal code that could satisfy the demands of retributive punishment have to match closely in content the central norms of morality. If there is no such match, then there is no point to punishment, for a retributivist. 5 Without the match between legal and moral norms, the retributivist would be punishing someone for doing things The core that could be positively good, not evil. 6 prohibitions of the criminal law are those serious moral norms that prohibit murder, rape, torture, etc. Victims are important substantively because each of these serious
14. I defend this analysis of desert in Moore, supra note 6. 15. See id. ch. 14. 16. True enough, if the criminal law could make actions immoral just by the fact that it prohibits them, then you have a new kind of wrongdoing that a retributivist might punish, but leave that to the side for now.

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moral norms prohibits actions causing harm to certain victims. On this, Fletcher and I also appear to agree. Let me examine several aspects of these norms. First and foremost, these are norms of obligation, not simply norms of superogation. 7 It's not simply a failure of virtue when you violate one of these moral norms that is at the core of the criminal law; it is a failure of obligation. Second point: they are typically negative prohibitions rather than positive requirements-not always, but most of the time. Third point: the obligations are not the consequentially justified kind of obligations, which we also do have in morality. They are what are now often called "agentrelative" prohibitions, or in the older language, categorical or deontological prohibitions of morality.18 Even if by violating the norm on this occasion you could cause a greater good of the exact kind protected by the norm, you may not do it. That is what makes it categorical in its force. I prefer the newer terminology of "agent-relative" to describe the categorical, obligatory norms of morality because "agent-relative" suggests a distinct but related feature of such norms. To have the categorical force they possess, such norms need to be seen as being addressed to each of us individually. They say to each moral agent, "Don't you do action A, even if your doing of A now would minimize the doing of A by yourself or others in the future." It is this agent-relative feature of the categorical norms of morality that explains why we individuate wrongs done by agents and not just by harms to victims. If five agents independently shoot one victim, who dies of loss of blood from all five wounds, there are five wrongs (murders) even if only one harm (death of the victim).19 Fourth point: such norms are typically rights-based
17. On the distinction between obligation and superogation, see Michael S. Moore, Liberty and Superogation, 7 Ann. Rev. L. & Ethics (forthcoming 1999). 18. On the nature of agent-relative prohibitions, see Moore, supra note 6, ch. 17. 19. Explored at length in Michael S. Moore, Act and Crime: The Implications of the Philosophy of Action for the Criminal Law chs. 13-14 (1993).

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rather than duty-based. Even if you think morality is fully correlative between rights and duties-so that every duty violation by one person has a corresponding right holder, every right holder has a corresponding duty holder-you might well think there is a difference between duty-based norms and rights-based norms. An example of a dutybased norm is the duty not to be cruel to animals; an example of a rights-based norm is that protecting the right of a person to her own bodily integrity on which is based the duty of everybody else not to violate that integrity. 0 I think the most serious violations of morality are rightsbased norms in which the duty is derivative, rather than the other way around. Fifth and last point: because these are rights-based 21 norms, they are also what I call "victim-relative" norms. They are victim-relative because of the way in which we count up how much wrong was done. How much wrong was done depends on how many times the norm was violated, and this depends in part on how many victims are involved. Suppose you shoot one shot with a powerful gun that goes into five people and kills all five. In AngloAmerican homicide law, that is regarded as five distinct wrongs. Such a shot constitutes five violations of the norm against murder, despite there being but a single action. How can we make sense of that? The shooting is only one act as a particular act, so it has to be that that single act did five simultaneous wrongs. In other cases we know that one act can simultaneously constitute different offenses, such as the offenses of burglary, robbery and theft. In this case it's all the same type of act, homicide, but it's five Inference to be drawn: the moral distinct homicides. norms-on which the legal norms of the criminal law are based-protect each of us as individuals. Not only are the norms directed at each of us, which is what makes them agent-relative; such norms are also victim-relative in the sense that each of us is protected by such a separate norm.
20. To the question, how can you tell the difference, ask whether the right justifies another having the correlative duty, or is it vice-versa? 21. Moore, supra note 19, ch. 14.

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And each of us, when the norm is violated, can claim a separate wrong was done to him, even if it's the same act doing the violating. Now, Fletcher asks, where are victims in all of this? They are at the center of the norms whose violation is at the core of criminal law. In that substantive sense, I too can tout a "victim-oriented" retributive punishment scheme. Victims have a large place in the norms whose violation warrants punishment for a retributivist. Of course, this substantive role of victims in retributive theory does not by itself justify any procedural role for victims to play in criminal trial processes. Most of what the "Victims' rights" movement has been about is the role of the victim as a flesh and blood live person after the crime has happened: procedurally, does the victim get some kind of say over what happens to offenders both before and after they are convicted? Let me then come to that procedural sense of the question. To divide that question is inconvenient. It is in fact divisible between plea bargaining before trial, prosecutorial strategy at trial, and sentencing after trial. But the basic issue is more easily seen by not marking these procedural divisions; in general terms, the question is, how much say do you want the victim to have over what happens to the offender? Whether that say is through pretrial bargaining, whether it's through at-trial strategy, or whether it's through post-trial sentencing considerations, matters only if victims should have some say somewhere. The prior question is how much should punishment of a criminal be up to that criminal's victim? This is a more usefully general question because if the general answer is negative, that will dispose of the particular procedural variations. There is a second procedural question that should be separated from the general one: At sentencing, victim impact statements are used not just to express victim preference for sentencing-that's part of the package I just mentioned. They are also used to give victim testimony about the impact of the crime on the victim. We need to

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separate this kind of victim-input into sentencing from the victim-preference-expression input. It is a separate and a legitimate question as to whether or not the victim has relevant testimony-for retributivists like Fletcher and myself for whom results matter-about how bad the result was to the victim. Can the victim tell us something of relevance here, about how harmful was the defendant's wrong to him? That's a straight admissibility question, but one we don't want to lose sight of. I put this kind of victim input at sentencing aside for now so that I may deal with it separately at the end of my article.

II. CAN VICTIM-ORIENTED RETRIBUTiviSM ALLOW VICTIMS


ANY SAY OVER THE PUNISHMENT OF THEIR OFFENDERS? In his present paper Fletcher appears to think it enough to point out that victims are central to the norms whose violation justifies punishment for a retributivist. From this substantive role of victims in a retributive punishment scheme, Fletcher appears to skip easily to a procedural conclusion: therefore, victims should have a say in the plea-bargaining and trial phases of the criminal processes afforded to their offenders.2 2 It should be clear that the procedural conclusion does not follow from the That victims are important to substantive premise. desert-the central notion of retributivism-in the ways just discussed, is true but irrelevant to the procedural question of whether victims should have any say over how their offender's deserts are determined. To see this, let us again step back for a moment. Go back to a utilitarian theory of punishment, say a general deterrence-type punishment theory. Here it is standardly and correctly said that one does not care about the victim's input. You don't care what they think because you're using the offender as the means to achieve a social good, namely, crime prevention through general deterrence. You-the

22. Again, these procedural conclusions are to be found in Fletcher, supra note 12, at 188-201.

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social policy maker, the judge, the legislator-will make the calculation without any help from the victim. The victim has no particular epistemic insight and has no particular right to have a say about what happens to the offender on general deterrence grounds, for the trigger for punishment is a fact over which the victim has neither expertise nor control. Now, suppose you move from Benthamite utilitarianism to, say, preference utilitarianism, so that you view punishment as a way in which society satisfies the collective preferences of citizens. That's a form of preference utilitarianism because it's not talking about pleasure and pain but about maximally satisfying the collective preference of citizens. Is there room for victim input? The victim has a preference about punishment, and that preference does count, but so does every other citizen's preference. As Bentham put it, each person counts as one, and only one, in the making of social policy on utilitarian grounds. The preferences of victims have no special place in this theory, and victims have no special say. Now move from utilitarianism to something closer to home. Some of us care about abstract justice as the reason and end of legal institutions. Suppose you are setting up a system of progressive income taxation. You are animated by an ideal of distributive justice and you need to justify each particular tax doctrine by that ideal of justice. We typically do not consult the beneficiaries of, or those who are particularly burdened by, such tax doctrines, nor do we give them anything like a veto power in the decision of such matters. Such directly interested persons may get their input in the democratic process-which is the process by which we collectively decide what justice requires-as much as anyone else. But such persons get no more say than anyone else. Indeed, they may get less. We often suspect people with heavy interests in such legislation because we think they're more self-interested and that probably gets in the way of their seeing what justice requires. All of this is as true when we are trying to achieve

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retributive justice in our legal institutions as when we are


trying to realize distributive justice in such institutions.

The victims of course get their say in the sense that they have the right to their democratic input in the legislative scheme of punishments, but if what you're trying to do is realize some abstract ideal of justice in some legal institution, their say counts no more than anyone else's. Again, perhaps less, because, again, their views are distorted by the particular things that have happened to them rather than having the more removed, dispassionate consideration needed for better insights of what justice requires. And victims have no say when we leave the general punishment grading scheme set up by the democratic legislature for a court's application of that scheme to a particular offender. What the victim wants by way of amount or kind of punishment, whether a certain process makes the victim happy or sad, is simply irrelevant to how a court should proceed in a criminal case. The most obvious move for Fletcher in response would be to argue that retributive justice does not demand suffering in requital for culpable wrongdoing. What if retributive justice were achieved simply by giving a right to those who are hurt to either demand retributive punishment or not? This is a distinct theory from the normal retributive theory according to which retributive justice requires that the offender suffers. We might call this a "rights-based retributivism," "rights-based" in the sense that the duty we each have to punish wrongdoers is merely the correlative of the more basic right each victim has to demand that her offender suffer-a right that she can waive. I think that is where Fletcher most obviously should go. Fletcher should say that the content of the norms of retributive justice are such that retributive justice is achieved, not when suffering is given to the accused, but rather, when the right to make the accused suffer is given to his victim. I have three objections to such a rights-based retributivism. One is this: usually people who make such a move are like Jeff Murphy in that they see they're doing

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corrective justice and not retributive justice. They see this because Fletcher's move to victims turns the criminal law into an engine of victim vengeance rather than a realization of abstract justice. If it were truly abstract justice at which punishment aimed, it shouldn't matter what the victim preferred, unless you think, again that victim preference is constitutive of justice; unless you think that justice is constituted by the right to make the accused suffer. Can such an engine of victim vengeance still be retributivism? It doesn't look retributive; it looks compensatory to the victims. Punishment in such a scheme turns on the victims deciding what they want, not on what justice demands. Everyone else who has taken the victim's turn concludes that they don't believe in retributive justice anymore; they believe that criminal justice systems should serve corrective justice. Fletcher, despite his protestation that criminal law is different than tort law, gives us little basis to draw this crucial distinction between the two. The only basis for the distinction between crime and tort that Fletcher does give us is that tort gives particular victims rights of compensation vis-a-vis the concrete harms they have suffered, whereas criminal law deals with "public harm,"
defined as the typical harm done to a class of victims. 24 Yet

if Fletcher makes this move, he has surrendered rightsbased retributivism. He has given up the view that retributive justice is served when a victim is given the right to make her offender suffer for his wrong. The victim, as Fletcher recognizes, has no particular right over her offender's process of trial or degree of punishment; such a victim may be given procedural rights to participate in her offender's trial, but only "as the representative of a class of victims, all of whom suffer the same basic invasion of their

23. In addition to Murphy, supra note 10, see, e.g., Randy Barnett, Restitution: A New Paradigm of Criminal Justice, 87 Ethics 279 (1977) (outlining paradigm in which restitution to the victim replaces retribution as a reason justifying criminal sanctions). 24. Fletcher, supra note 1 at 56-57.

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25 interests."

REPLY TO FLETCHER This surrenders the crucial argument for

Fletcher, the argument of a rights-based retributivism, to the effect that retributive justice is achieved when an offender's victim is given the right to make him suffer. Fletcher's victims have no such rights except as convenient representatives of the class whose members collectively possess such right, if anyone does. My second objection is based on a value of which Fletcher makes a great deal, namely, equality. In a truly victim-oriented system, if a wrongdoer has the good luck to injure one of those New Testament types, instead of one of the Old Testament types, then that wrongdoer is going to receive less punishment-because he is always going to get the turn-your-other-cheek forgiveness response from his victim. That is not equality. The propensity of a victim to forgive her transgressor is irrelevant to retributive desert. Two offenders, one of whom injures a resentful victim and the other of whom injures a forgiving victim, seem equally deserving of punishment, but a rights-based retributivism would not achieve that result. My third objection to rights-based retributivism goes to its own merits, independent of my two previous objections that it collapses retributive justice into corrective justice and it violates equality. The objection here is that rights-based retributivism seems false on its face. I was having my tires changed recently in Philadelphia, sitting in a coffee shop waiting for them to get done, and I overheard the following conversation. One person said to another, "The way Bill Clinton has saved himself is by getting Hillary on national television and having her claim, 'I'm the one wronged by Bill's adultery. I'm the victim here and I forgive him. So, what business do you have in demanding any further punishment?" The claim is that Bill's adultery is Hillary's business. She, the victim, owns this one. Yet is it enough that the victims have the right to punish, the right to make suffer, rather than that the offenders actually do suffer? I think not.
25. Id. at 55.

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Change the example to Nicole Simpson. In the O.J. trial, suppose a hitherto unknown tape suddenly surfaces. Here's what the tape records: that Nicole said during the attack that killed her, "O.J., I know that you think that I've done you wrong and I forgive you for this." Does that make any difference to what O.J. deserves with regard to killing Nicole Simpson? Or did he do a great wrong, culpably, to which victims' preferences, whether vengeful or forgiving, are simply irrelevant? Many would think that such a forgiving attitude, if relevant at all, would make what Simpson did even worse: his victim was such a good person, she could even forgive her killer at the time she is killed. My own sense is that if you run through the range of cases with varying degrees of victim forgiveness/vengeance, your retributive intuitions are such that they don't diminish the wrong at all. If these intuitions are to be credited, then retributive justice does not merely demand that victims of wrongdoers be given the right to make their offenders suffer; rather, retributive justice demands that culpable wrongdoers suffer, irrespective of whether or not those they wrong wish it. It is not clear that Fletcher actually wishes to defend what I have called rights-based retributivism. Instead, Fletcher appears to think that he has offered two other arguments "for introducing the victim in the framework of retributive theory."26 These are arguments that seek to justify punishment on retributive grounds. To give victims the role in pre-trial and trial processes that Fletcher advocates, such arguments must have two other characteristics: (a) the weak characteristic is that such arguments must not be incompatible with giving victims some say over the punishment of their offenders; and (b) the strong characteristic is that such arguments must support not only retributive punishment of offenders but also the giving of victims such say over the punishment of their offenders. It is thus possible to disagree with Fletcher about these arguments at any of three levels:
26. Id. at 62.

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either that the arguments do not justify punishment on retributive grounds; or that such arguments are as incompatible with victim input as is my own version of retributivism; or that such arguments do not support giving victims any say over the punishment of their offenders. I will mainly take up the first of these responses, although I think that the second and the third are also correct. The two arguments Fletcher here gives for justifying retributive punishment are the arguments from dominance and from blood-guilt/complicity.2 7 Let me take the second first. Fletcher interprets Kant's famous thought experiment about an island society about to disband to be about the complicity of all citizens in the crimes of unpunished criminals. As Fletcher sees it, Kant's intended conclusion is "that allowing crimes to go unpunished somehow repeats the evil."28 Punishment of deserving wrongdoers is thus justified because it avoids this complicity. Fletcher recognizes that if the "blood-guiltlcomplicity" argument is put in Kant's mouth, it doesn't do the work needed of it. It doesn't work almost for the same reason that Fletcher himself sees,29 so let me first get that right and then go on. If it's the case that blood guilt would remain on our hands because the deserving didn't get what they deserved, it can only be because we have an obligation to punish those who deserve it. And that is what retributivism has to justify. It cannot be a justification of retributivism that we are complicitous if we don't punish. We all have an obligation to support just institutions, and the retributivist says: "Here is one," namely, the justice of punishment institutions. If we don't do it, we're all complicitous in not setting up and supporting a just institution. Yet why is retributive punishment just? That is not answered by this argument at all. Fletcher seeks to ameliorate this obvious difficulty by
27. Id. at 57-61. 28. Id. at 61. 29. Id. at 62.

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contending that in our world, where punishment institutions already exist, failure to punish the deserving makes us complicitous in their guilt. Yet even this is false. As Herbert Hart observed years ago, there is no "condemn or condone" implication in our punishment practices." That we fail to punish in no way implies that we join in the criminal purposes. It is unjust of us not to punish deserving offenders-any retributivist believes that. We could thus say, it is an evil not to punish deserving offenders. But that evil is not to be confused with the evil done by an offender that makes him deserving of punishment. Our failure to punish such persons is evil, but it is not the same evil as was done by an offender. In addition to not justifying retributive punishment, either ab initio or in established societies, the complicity argument is flawed by the inability of the argument to support any role for victims in determining the punishment of their wrongdoers. Suppose Fletcher were right: The reason justice demands punishment of the guilty is because, otherwise, all citizens are complicit in the guilt of offenders. Where is the victim in any of this? The victim would be complicitous in not seeking punishment, but: (1) no more so than anyone else, and (2) there is no room for victim determination of punishment to be found here, for the victim like every other would-be accomplice is under a duty to punish. Fletcher hopes to get victims in here by vague talk of "blood-guilt."31 Talk of blood guilt is part of the rather incidental set of remarks thrown in by Kant in his discussion, not of general punishment, but of what a 32 This comes murderer deserves by way of punishment. after Kant has concluded the general discussion of why we punish.3 3 In any case, it is definitely the tail of the dog for
30. See H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1968). 31. Fletcher, supra note 1, at 60. 32. Immanuel Kant, The Metaphysics of Morals 142 (Mary Gregor trans., 1991). 33. Id. at 140-41.

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Kant because blood guilt is for him simply a dramatic way of talking about complicity if we do not punish those who deserve it. Fletcher seeks temporary comfort in David Daube's notion that killers acquire control over their victims 'blood" (translated as "the life spirit") and that punishment eliminates that control.3 4 And thus what? Presumably, that victims therefore have a special interest in seeing their offenders punished so that their life spirit can be released. This ultimately is too hopelessly metaphorical even for Fletcher. Ultimately, "'Blood guilt' serves [only] as a good metaphor for the evil 35 Yet that of... offenders getting away with their crimes." is the basic retributivist conclusion, not an argument for that conclusion; in addition, no special role for victims is supported (or is even compatible) with this general retributivist conclusion. Professor Fletcher's other argument is the dominance argument. In a nutshell: "The... argument is that acts of criminal violence establish a form of domination over the victim. The function of punishment is to counteract this domination and reestablish equality between the victim 36 and the offender." The best way to get at this argument is to ask, what does Fletcher mean by dominance? Fletcher faces what I shall call the "dominance dilemma." If you give dominance the meaning Fletcher often gives it, then it's a notion having to do with power. "Dominance" means that there is a continued relation between an offender and a victim whereby the offender has continued power over the victim by threat of continuation of the crime. Such power is the power to get victims to do things that they wouldn't otherwise want to do. That power-related idea I take to be the ordinary notion of dominance. The first horn of the dominance dilemma is this: if Fletcher uses "dominance" in its ordinary sense, then to claim that ending dominance of the victim by the offender
34. Fletcher, supra note 1, at 60.

35. Id. 36. Id. at 63.

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is what justifies punishing the offender for a retributivist, is: (1) false; (2) inconsistent with the non-instrumental nature of retributivism; and (3) irrelevant to any claim that victims have a say about the punishment of their wrongdoers. As to the falsity point first: Fletcher arrived at this unfortunate dominance theory while writing about 37 Since blackmail is often a multiblackmail, as he notes. episode crime where there is a continuing relationship between blackmailer and victim, Fletcher's theory is a plausible (even if not correct) theory of what is wrong with blackmail. Yet this "ending of dominance" is not even a starter with regard to most prohibitions in our codes. Take homicide, where there is no continuing relationship Fletcher concedes that because the victim is dead. homicide is a problem for his theory2 If you have a problem with a crime as central as homicide, so that in no ordinary sense of the word is there any post-crime dominance to be ended by punishment of the killer, then you have a real problem with the general theory. That's the falsity point. The second point is that you cannot hold Fletcher's theory and still be a retributivist. Fletcher's actual language is here instructive; he argues that the function of the criminal law is to end dominance, to terminate dominance, to counteract dominance, or to correct
dominance.9 The point of punishment for Fletcher, in

other words, is to cause a certain state of affairs to come into being by punishing; namely, the state of affairs whereby this dominating relationship between offender and victim no longer exists. Yet to say this is not to be a retributivist any more. Fletcher recognizes that you can't have causal relations between the good that justifies punishment, and the act of punishing, and yet be a retributivist; rather, you are an instrumentalist, someone for whom punishing those who deserve punishment is not
37. Id. at 57 n.3. 38. Id. at 55-56. 39. Taken from Fletcher's oral presentation of his paper.

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The intrinsically good but only instrumentally good. good, not an an intrinsic to say it is retributivist has instrumental one, that we punish people who deserve to be 0 That does not mean that retributivists cannot punished. 4 say things to justify why they believe that, but the things they get to say cannot be, because punishment causes future good consequences. How come? Because then those the ending dominance-are consequences-like intrinsically good things and punishment is only instrumentally good. Thirdly, dominance doesn't get victims in here. Even if dominance is what's wrong with acts that we make criminal, how do victims get the role Fletcher envisions for them in determining punishments? Ending dominance would simply be another good that makes retributive punishment just. Yet this good in no way depends on victim's post-crime consent; it is good to end domination whether particular victims are masochistic enough to like it or not. There can thus be no procedural role for victims to be found here. Notice that this point is valid no matter how Fletcher wishes to describe the intrinsic good that justifies retributive punishment; it applies fully to reestablishing the equality of victim and offender, 41 rendering the position and dignity of the victim relative to the aggressor, 42 "communicating to the victim a concern for his

or her antecedent suffering," 43 etc.


"Dominance" thus cannot be taken literally in Fletcher's dominance argument for punishment. To so construe the term renders Fletcher's dominance argument false, unholdable by a retributivist, and irrelevant to the point at issue. That gets us to the second horn of what I called the dominance dilemma. It is always tempting for any defender of a theory to avoid counterexamples (like homicide) by broadening the concepts employed in the theory so that there are no longer such counterexamples.
40. See Moore, supra note 6, at 9. 41. Fletcher, supra note 1, at 58. 42. Id.

43. Id.

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Fletcher seizes the second horn of the dilemma when he leaves the ordinary meanings of "dominance," "victim," and "ending" for much vaguer notions. Fletcher here proposes additions to what I regard as a mortuary for the faded and dead metaphors about retributivism. We are all familiar with these retributivist metaphors: punishment restores the moral equilibrium of the universe, it pays back a debt, it vindicates the norms flouted by criminals, etc. Retributivist writings are full of metaphors of this type, which when pressed for literal sense never cash out to what you thought they would have meant. Now, Fletcher gives us a "dominance," meaning no more than violating the rights of someone who has not violated the rights of the offender, and Fletcher gives us an "ending of dominance," meaning no more than restoring equality between victim and offender. We all can join these kinds of metaphors, because they don't add anything to the basic retributivist conclusion that culpably done wrongs (rights-violations) demand punishment. In which case Fletcher is back in the retributivist fold, but he has not added anything in talking of "dominance." Fletcher has not added anything because he can't add anything of the kind that dominance in its natural sense would add. He simply has to say what Fletcher in fact says, that the willingness of a defendant to violate the rights of a victim shows "domination" by itselfjust not in any ordinary sense of the word. Fletcher shifts from falseness to vacuity. This is similar to the old problems in ethics for egoism as a moral theory.44 When the egoist theorist is pressed by the obvious counterexamples of genuine saints and others whose morality does not seem egoistic, he changes the meaning of "egoistic" so that all motivations you call altruistic are really "egoistic." The dilemma is this: it's either obviously false, or obviously trivial, and there really isn't any middle ground here. Not for egoism, and not for dominance theory as the theory of punishment.
44. The classic discussion of this is Henry Sidgewick, Methods of Ethics
(1874).

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III. THE SEPARATE PROCEDURAL ISSUE: TBE USE OF


VICTIM-IMPACT STATEMENTS AT SENTENCING TO PROVE MAGNITUDE OF WRONG DONE

Let me briefly say a word about victim impact statements in sentencing because I think Fletcher and I disagree even here. As I said earlier, Fletcher and I agree that victim impact statements should not be used at sentencing as a vehicle to give victims a say over how much punishment the offender should receive. As I also said earlier, I do not understand why Fletcher agrees with me here, given his general victim-oriented punishment scheme that allows victims procedural roles pre-trial and at trial.4 5 Still, we do agree, and I said I was not going to argue inconsistency. The other issue about victim impact statements is not about victim preference for sentencing but about the extent to which the crime has impacted the victim. On this use of victim impact statements Fletcher and I do disagree. Payne v. Tennessee46 provides a good example. Little Nicholas was stabbed all the way through his torso by the defendant. Nicholas did not die, but had to live with both the memory of being stabbed and having watched his mother and sister get stabbed to death by the defendant. At sentencing testimony by the grandmother to this effect was admitted, and comment by the prosecutor on that testimony was allowed. Fletcher thinks, I gather, that this material is irrelevant (although I'm not sure). I think it is relevant. Put aside the form of retributivism according to which harm would be irrelevant; on that view it certainly wouldn't matter how seriously Nicholas was harmed because this view does not care about harm caused in general. As I said earlier, Fletcher and I are the other kind of retributivist, the one who does care about harm caused. Testimony about the nature of that harm would thus seem

45. See Fletcher, supra note 12, at 188-93. 46. 501 U.S. 808 (1991).

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to be relevant. Why does Fletcher think not? Two arguments by Fletcher. One-call it the clumping
argument-is that wrongs come in clumps. 47 That is, you

don't individuate finely the details of the harms done to people when you're assessing how much harm was caused. You don't ask about Nicholas' particular suffering, for example. You simply know that a survivor suffered and that's it. You're clumping. You don't want the detailed testimony because it's morally irrelevant to the wrong done. The wrong done, again, is measured in crude categories, and not more finely. There are two sorts of reasons you might be a clumper. One would stem from a kind of literalist formalism: the law that prohibits the offense doesn't actually name these details of the victims' harms, and therefore such details are not material. This is to have a very naive view of the relationship between crime-definition and sentencing. We have sentencing precisely to take into account factors that are not part of the definition of the crime. They take into account the factors that do make a difference, but they're more fine-grained than the material elements that constitute the definition of the crime. A second reason to be a clumper is more Fletcher's reason, which stems from a notion of equality between persons. The idea is that persons are basically equal so that you really shouldn't care whether Nicholas was a scum-bucket or a good little kid, whether he was psychically susceptible to this kind of injury or not. He was just a kid. I think that's a much more plausible thing to say. Even so, there are two sorts of problems with that. One is epistemic. You still might want to introduce the testimony, not to show in detail how much more harm happened to Nicholas vis-a-vis that suffered by an ordinary murder survivor, but rather to understand the wrongness of the type of crime suffered by both. You have to get the detail to engage your own emotions and you need those emotions to understand something that is abstract, namely,
47. Fletcher, supra note 12, at 200-01.

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the moral fact of how wrong it is to assault and to kill other


human beings.48 Testimony about such details thus gives a

valuable heuristic, even if we were to think (as I do not) that the details of Nicholas' suffering are irrelevant to the blameworthiness of his attacker. The second point retracts the arguendo concession: I think it does matter whether Nicholas has to live with this memory, and on that ground we want the jury to know what it's like to live with this kind of memory. I think these facts about Nicholas' suffering add to the seriousness of the crime done. Imagine leaving a kid who ends up with this kind of crippling effect on his life. To answer this second point, Fletcher proffers a culpability argument, which is that the accused at the time the crime was committed had no culpable mental state
with respect to the added details regarding Nicholas. 49 It is

a little hard to make that argument about the pain caused to Nicholas by being stabbed with a knife through the chest. It is a little hard to say that the defendant had no culpable mental state with respect to Nicholas' pain because the defendant thought he had succeeded in killing Nicholas (so that Nicholas couldn't suffer in this way). Let's suppose you make that argument anyway. Fletcher and I would agree that culpability limits results in the way in which they impact on desert. It's complicated. It's not culpability alone that counts in determining desert. That is the version of retributivism Fletcher and I reject. Rather, the amount of harm caused determines the seriousness of the wrong done, and the amount of wrong done does affect desert, but only if there is an accompanying culpable mental state that has as its content that wrongdoing. built into any Anglo That's the culpability limitation 5 0 code. law American criminal So, Fletcher has a good point to make. How, he asks, can we take into account the details of Nicholas' suffering if
48. On the heuristic role of emotions, see Moore, note 6, at 127-38. 49. Fletcher, supra note 12, at 199-200. Justice Stevens also makes this argument in his dissent in Payne. 501 U.S. at 860-61 (Stevens, J., dissenting). 50. See Moore, supra note 6, at 192-93, 247, 405.

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the defendant had no culpable mental state with respect to those details? It is very important when you ask this question that you realize something about the mental states that matter to culpability. Their objects are always about types of events. You never intend or (predictively) believe about a particular event, in all of its particularity.,1 You always believe that-now you need an existential quantifier-you believe that some instance of some type of event will occur. You don't have predictive beliefs or intentions with regard to particular events; you have them with regard to types. Why is that relevant? Because it is always something of a mismatch when you make culpability judgments between the type of harm the wrongdoer foresaw or intended (or was foreseeable), and what actually happened in all of its detail. We never demand complete fit because there is never complete fit. Nobody intends, or foresees, or has beliefs that make foreseeable all of the details of the harm he in fact causes. It is always a case of approximation. "Close enough for government work" is the right attitude of the fact-finder when assessing whether the type of harm that was foreseeable was instanced by the harm this defendant did. A lot of the detail of the harm to Nicholas was not foreseen or foreseeable to this defendant. Holding him more blamable because of these details nonetheless does not violate our culpability limitation. It should be plain that using victim impact statements as evidence in sentencing proceedings does not give victims any say over the punishment of their aggressors. Rather, victims giving such evidence is of a piece with victims testifying at the guilt determining phase of criminal trials. In neither case does the admissibility of relevant testimony go any distance towards the victim-oriented punishment scheme the victims rights movement has sought to promote.

51. Id. at 383, 460-61.

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IV. CONCLUSION

Putting aside the evidential inputs of victims at both the guilt and sentencing phase of criminal proceedings allows us to return to the main bone of contention most often at issue when one talks about victim's rights: should victims of crimes have any say in determining the punishment of their offenders? Fletcher and I appear to agree on what I called the substantive or theoretical connection between victims and retributive punishment. Victims in that sense are important to retributive justice because the desert (that triggers a just punishment) is a function of the violations of the rights of victims by offenders. Where Fletcher and I disagree is whether any procedural role for victims follows from this substantive or theoretical fact. Fletcher urges that it does. I not only urge that it does not, but conclude that such victim-say over punishment is inconsistent with retributivism. Fletcher wishes me to "recognize that doing justice to victims should be part of the theory of retributive
5 2 I wish him to recognize punishment." that doing justice is

the essence of retributive punishment and that victims have neither any moral right nor expertise to say how our legal institutions should achieve such justice.

52. Fletcher, supra note 1, at 55.

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