The American criminal justice system is bound up with judgments of moral blameworthiness. At least this is the public narrative surrounding our punishment practices, a narrative promoted by prosecutors, legislators, political commentators, court TV, profiles of convicted felons, talk radio, and blogging.
This blame industry is disturbing, as Fried argues, but despite the many virtues of her discussion, she misdiagnoses the problem when she focuses on causation and responsibility. The source of the problem is a mismatch between the institutional basis of criminal justice and personal moralities of blame: the criminal law should not be used as an instrument of moral blame.
In the United States, as Fried points out, serious material inequality incentivizes crime. Furthermore, law enforcement, criminal prosecutions, and sentencing practices display glaring patterns of social discrimination. Members of racially disadvantaged groups, in particular, have a significantly higher chance of being under the control and supervision of the criminal justice system—even for crimes they commit at no higher rate than whites. When officials who administer punishment cannot represent in good faith a collective commitment to reasonable political institutions and to equitable application of the law, their moral standing to blame is undermined. Social injustice is an intolerable context for distributing punishment according to moral
We are not morally required to blame wrongdoers.
More broadly, and on a personal level, we are not morally required to blame wrongdoers. There are morally reasonable responses to wrongdoing that do not force us to choose between the moral engagement of blame and an objectifying stance of treatment and control. Fried is right to question that distorted sense of our options.
Consider a person with a hard life, such as the one she describes: basic needs unmet, restricted opportunities, abusive upbringing, and negative peer pressure. Suppose this person commits a violent crime. The person’s life circumstances and psychological vulnerabilities fit uncomfortably with the presumptions of familiar blaming attitudes and judgments, even if it is also true that he or she committed a crime intentionally and for reasons we can criticize on moral grounds.
People who suffer moral wrongs are always free not to blame. They might decide instead that the obstacles a wrongdoer encountered—circumstantial pressures, strong impulses, social alienation—were understandably, although not justifiably, mishandled. Contemplating difficulties that mitigate blame opens up avenues for engaging with a wrongdoer: greater understanding, feelings of compassion, empathy, and the painful yet binding intimacy of confronting a moral misdeed together. Our freedom to choose between blaming and non-blaming responses to wrongdoing enables us in myriad ways either to distance ourselves from or to confront the psychological and inter-psychic dynamics of wrongdoing, something about which we can have differing interests and aptitudes without offending morality.
The relational nature of blame—the subjectivity of a decision about whether and how to relate to a person who has done wrong—entails that blame is a poor subject for legislation. If a person’s wrongdoing has no fixed moral meaning in relation to other people, blame cannot be required as a matter of law or justice. There is no blaming stance we are required as citizens to take toward criminal offenders. Our obligation is to respond to criminal wrongdoing, not to engage or disengage morally with wrongdoers. A legitimate democratic state should defend, with fair measures, the equal rights of all citizens, and this makes it permissible to burden offenders with punishment when doing so is necessary to defend our basic rights. We do not need to blame criminal offenders or judge them to be morally blameworthy in order to take measures to protect our rights against the sorts of harm those offenders have done. Furthermore, the moral basis of our permission to punish offenders does not license our morally righteous condemnation of them. This is a point about the proper role and aims of political institutions, not about the meaning of free will.
Doing without blame would enable us better to reintegrate offenders into society after they serve their sentences, and to consider alternatives to incarceration when incarceration is not necessary to further the legitimate aims of criminal justice. This reorientation would, however, require a significant revision in the public moral discourse surrounding criminal convictions—a revision that is long overdue.