In socially stratified societies, the disadvantaged have stronger incentives to commit crime than the well-off. Malum in se crime—crime that is immoral independent of it being illegal—may be the most attractive (and sometimes the only) path to self-sufficiency and social standing in communities isolated from the mainstream economy. Where opportunities for regular, legal work are sparse, people have stronger incentives to steal, rob, con, deceive, sell harmful and addictive drugs, exploit others, and otherwise generate income through activities generally regarded as immoral. In neighborhoods where legitimate ways to secure social status are scarce, violent crime, and the reputation it often comes with, can directly boost one's social standing. For the disadvantaged, rejecting mainstream social norms and adopting value systems that endorse lawbreaking can sometimes be strategically adaptive. For example, in low-income neighborhoods where the likelihood and costs of encountering a violent person are high, mutual respect can become a zero-sum game, leaving people with incentives to adopt a threatening demeanor and to behave in unfriendly, uncivil, and disrespectful ways toward others—often breaking the law in doing so.Footnote 1
In this paper, I develop a new theory that explains why these incentives limit the extent to which we, as citizens of unequal societies, can justifiably blame the disadvantaged among us for committing crime—linking the ethics and moral psychology of blame with empirical research on the causes, and perceived causes, of criminality. The argument is structured as follows.
In Section I, I show that blame, as a response to the morally objectionable attitudes we perceive in people's actions, can be justified only to the extent that the prospective blamer both (1) has good evidence of such an attitude, and (2) is in the moral position to blame the target of her blame for having that attitude. The epistemic condition drives the argument in Section III, while the positional condition drives the argument in Section IV.
In Section II, I develop a conception of criminogenic incentives that captures the fact that there are more significant payoffs to crime for the disadvantaged than there are for the well-off, without relying on any controversial theory of the good. I then canvas the range of factors that can affect these incentives, which go far beyond income and wealth.
In Section III, I show that we have good prima facie reason to think that social and economic incentives closely track the motivations of criminal offenders. I argue that we have less evidence of morally objectionable attitudes when the disadvantaged commit socially or economically incentivized crime than we do when the well-off commit similar offenses. If the demographic distribution of criminality is explained by the distribution of incentives, we have reason to mitigate our blame when the disadvantaged break the law.
In Section IV, I examine the normative implications of “cultural” models of criminality, which hold that disadvantaged offenders are motivated to commit crime by criminogenic values, rather than by their lack of attractive alternatives. These models are, for the most part, not empirically well supported—but they are influential enough in public life to be worth engaging with normatively. I argue that we should push for higher-order explanations when these models of criminality are invoked. The best explanation for the supposed existence of criminogenic subcultures is that rejecting mainstream social norms and adopting a value system that endorses lawbreaking can be strategically adaptive for individuals faced with structural disadvantages. As citizens, we are collectively in control of the social structures that make this the case. This weakens our standing to blame the disadvantaged when they break the law—even if “cultural values” are what drive them to do so.
In Section V, I show that my account neither relies on a background theory of social justice nor the assumption that socially stratified societies in the present-day developed world are unjust. And in Section VI, I address the worry that adopting my normative conclusions would be disrespectful to the disadvantaged. I argue that the danger of disrespect may well constrain the ways in which legislatures and government agencies could justifiably implement my proposal at the policy level, but that these considerations do not impugn the proposal in and of itself.
The overarching conclusion I defend here should not be completely unfamiliar, but the theory I provide to explain and justify that conclusion has several crucial differences from the existing literature on inequality and criminal responsibility.Footnote 2 First, I do not rely on the premise that existing inequalities in our societies are unjust.Footnote 3 Second, I do not rely on the assumption that group differences in rates of offending can be explained solely by appeal to “structural” factors, and I engage with the popular idea that the disadvantaged are more likely to commit crime than the well-off because they tend to be enmeshed in “subcultures” that promote crime.Footnote 4 Even if that is true, I argue, we still have reason to limit the extent to which we blame disadvantaged lawbreakers. Third, I do not appeal to the idea that disadvantage should be treated as a mitigating factor because it can interfere with people's moral capacities—for example, by preventing them from knowing right from wrong, or from being able to control their actions.Footnote 5
These features have several upsides. Because the theory does not rely on controversial claims about the nature of social justice, or about the social and psychosomatic determinants of crime, it is better suited to incorporation in judicial decision-making than past work on the topic. Judges could use the line of reasoning I develop here to render relatively narrow decisions at the sentencing phase of the criminal trial, while respecting the separation of powers between the branches of government and adhering to a philosophy of judicial restraint. For that same reason, the arguments I develop here should, in theory, be acceptable across the political spectrum—though it is unlikely that many conservative judges would accept them in practice. And because I do not rely on the tenuous and problematic analogy between poverty (or oppression) and insanity, the account here should apply to a wider range of cases than theories that do make such an analogy—for example, to crimes where there is a clearly established mens rea, including those that are premeditated and extensively planned.
To avoid some potential misunderstandings, I want to note two aspects of the scope and methodology of the paper at the outset.
First, the argument is presented at the somewhat abstract level of moral philosophy, rather than in terms of prescriptions for judges, legislators, or administrative agencies—though it engages with some of the relevant social science literature, focusing on the U.S. context. But I focus on the kinds of attitudes we are justified in taking as citizens because I am concerned with the limits of permissible state punishment. I believe that justifiable “civic blame”—the kind of blame we would be justified in feeling if we knew nothing about ourselves except that we are citizens of the society we live in—is a necessary precondition for the permissible punishment of malum in se crime.Footnote 6 I cannot defend that view fully in this space, but one idea that tells in its favor is that, as Joel Feinberg argued,
[p]unishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, either on the part of the punishing authority himself or of those “in whose name” the punishment is inflicted.Footnote 7
On this view, some form of civic or collective societal blame is part of legal punishment. If it is impossible to impose criminal punishment without imposing moral blame, then the latter must be justified in order for the former to be justified. So if we, as citizens, are obligated to temper the extent to which we morally blame disadvantaged lawbreakers, then we are also obligated to reduce the severity with which we punish them under the criminal law. But the arguments here have implications for criminal law and sentencing policy even without drawing that strong connection between civic blame and legal punishment. For if we accepted that we ought to be more restrained in the extent to which we blame disadvantaged lawbreakers, then we might simply be more inclined to support sympathetic policy reforms, even if it does not follow that we are obligated to do so.Footnote 8
Second, the scope of the argument is limited to the norms governing the kinds of attitudes and responses we are justified in taking as citizens. I do not take up questions about how victims, judges, juries, legislators, law enforcement officers, or noncitizens ought to respond to crime, given the particular roles that they occupy. It is plausible that some of us may have reasons not to temper our blame of badly off offenders, given our particular circumstances or occupations. For example, ghetto residents may need to build bonds of solidarity in order to advance social justice,Footnote 9 and neighborhood crime could undermine that solidarity.Footnote 10 As such, ghetto residents could potentially be justified in blaming lawbreakers in their neighborhoods for undermining communal solidarity, while outsiders might not be in the moral position to assign blame on that basis. Nonetheless, I do not restrict my analysis to how the well-off ought to react to the crimes of the disadvantaged. Rather, for the reasons sketched above, I think it is important to understand the norms we are subject to as citizens, abstracting from the more specific social roles we undoubtedly have in our lives.
I. LIMITS ON JUSTIFIED BLAME—EPISTEMIC AND POSITIONAL
In paradigmatic cases, blame is a response to wrongs we perceive others to have committed.Footnote 11 But blame does not always fit into this model.Footnote 12 Sometimes we blame ourselves for things we've done. And sometimes we blame people for doing the right thing for the wrong reasons. We blame people for things we perceive them to think or feel. Blame is distinct from a judgment of wrongdoing, as such: it is a response to the perception of a morally inappropriate motivation or attitude, or a bad “quality of will,” to use the words of P.F. Strawson.Footnote 13 Sometimes blame is expressed in the form of public denunciation or verbal condemnation, but blame is often “bottled up” as well.Footnote 14
So blame is an attitude, rather than an action—but what kind of an attitude is it? On Hume's classic view, to blame someone is to make a negative assessment of her moral attitudes.Footnote 15 On most current views, blame involves something in addition to this kind of evaluation, however.Footnote 16 According to one family of views, blame involves the “reactive attitudes” of resentment, indignation, and guilt.Footnote 17 On another, it involves modifying how we understand our relationships with one another.Footnote 18 And on a third view, it involves a disposition “to become angry, express one's disapproval, and the like.”Footnote 19 My arguments here should be compatible with all three of these post-Humean pictures of blame, and the arguments I give through Section III should also be compatible with the thinner Humean view.
Because blame is a response to a perception of a morally inappropriate attitude, it might be natural to think that blame is justified when that perception is accurate. But it is also natural to think that there is an important sense in which our actions and attitudes are justified only if we stand in the right epistemic position with respect to them. A strong version of this view, elaborated by John Hawthorne and Jason Stanley, is that we should act (and deliberate) only on what we know.Footnote 20 Blame involves a background belief about the perceived wrongdoer's quality of will.Footnote 21 As such, we might think our blame is justified only when we know the person we are blaming acted out of ill will. The Hawthorne-Stanley view is controversial, however.Footnote 22 If one thinks that knowledge requires certainty, this view appears prima facie implausible; we have to make choices in the face of deep and intractable uncertainty all the time. We cannot afford to simply refrain from acting whenever we are unsure what the consequences of our actions would be, or what the norms governing our choices are.
Here is a thinner principle that should be less controversial than the Hawthorne-Stanley view: our attitudes and actions are justified only to the extent that (a) they are warranted by our beliefs, and (b) our beliefs are themselves justified. This principle is a logical consequence of the Hawthorne-Stanley view, so long as we take justified belief to be a necessary condition for knowledge. But it does not entail that view, because it does not require us to act only on true beliefs—so it is slightly less demanding.
If our attitudes and actions are justified only to the extent that they are warranted by our justified beliefs, then in order to be justified in blaming, we must have good evidence of ill will. If X's belief that Y performed an action Φ out of ill will is itself unjustified, then there is a procedural sense in which X's blaming Y for Φ-ing is also unjustified.
Having evidence of ill will is not a sufficient condition for justified blame, however. Even when we have evidence that others have acted in ways that betray their morally inappropriate attitudes, we may not have the “standing” to blame them.Footnote 23 In particular, our standing to blame others for what they have done is undermined when we are complicit in their actions. For example, a stranger might legitimately blame my children for flouting normal standards of decency in public, but I would be unjustified doing so myself if I have raised them to believe that violating those standards is acceptable.
Macalester Bell argues against the idea that we need any special standing to be justified in blaming one another, on the grounds that we are obligated to criticize and condemn serious wrongdoing regardless of whether we are complicit in it.Footnote 24 As she argues, “observing complicitous condemnation can lead targets and bystanders to a better appreciation of the wrong in question. The jarring hypocrisy of this stance can help to provide insight into the seriousness of the wrong done.”Footnote 25 Bell's argument depends heavily on understanding blame as synonymous with reproach, condemnation, and moral criticism—an understanding she acknowledges and spells out explicitly. “At a minimum,” she tells us, “for X to blame Y for some action a, X must believe that Y performed a, X must believe that a is wrong, and X must express this belief in some form of communication.”Footnote 26
As I argued above, however, neither of Bell's last two conditions here are true: we can blame one another for doing the right thing for the wrong reasons, and we often keep that blame to ourselves.Footnote 27 As such, we may be obligated to criticize or reproach one another for serious wrongdoing regardless of whether we are complicit in that same wrongdoing, but that obligation does not justify blame per se. Blame is composed of an evaluation of the moral status of one another's attitudes, or “quality of will,” along with some additional element: perhaps a negative emotion like resentment or indignation; a modification of how we understand our relationships with one another; or a disposition to become angry and express disapproval. When we are complicit in wrongdoing, this additional element of blame is unjustified.
So if I raise my children to believe that violating normal standards of decency is acceptable, I may still be obligated to criticize or reproach them for doing so—in effect changing the values I communicate and pass down to them. But I would nonetheless be unjustified in feeling indignant at my children, or modifying how I understand my relationship with them, or becoming disposed to being angry at them. We are perfectly capable of communicating our reproach and criticism of serious wrongdoing without blame. And for complicitous criticism to have the kind of power that Bell suggests it can have, it almost certainly must.
The example here illustrates the illegitimacy of blaming others for acting on attitudes that we ourselves instill in them. This principle has two scalar corollaries. First, our standing to blame one another depends not only on things we coerce or convince one another to do, but also to what we encourage, tempt, or “nudge” one another to do, and with the opportunities we make more or less salient or attractive to each other. Second, our standing to blame can be weakened, rather than completely destroyed, when we are partially complicit in the courses of action we blame one another for, or the attitudes that motivate those acts. Imagine, for example, a professional football coach who expects his team to stick to a strict conditioning and dietary regime throughout the season, but who nonetheless orders pitchers of beer for his three star players after every game, which hurts their conditioning. Perhaps the three stars also frequently fail to show up to practice, despite the protestations of the coach, and this contributes to their lack of proper conditioning as well. If the three stars become out of shape, and the team begins to lose most of its games, their teammates and fans could legitimately blame them for failing to live up to the standards of professional athletes. The coach would not be justified in blaming the three star players as severely, since his actions played a major role in the problem, which partially undermines his standing. But he would be justified in blaming them to a limited degree, because he is only partially complicit in their poor conditioning.
We have a rough sketch of two limiting conditions on the appropriateness of blame, then: we are justified in blaming others for their actions only to the extent that we have evidence that they acted on a morally objectionable attitude, and only to the extent that we are in a moral position to hold them to a standard that attitude fails to meet. The epistemic condition will play a key role in Section III, while the positional condition will play a key role in Section IV.
II. DISADVANTAGE AND INCENTIVES
In this section, I detail the nature of the incentives to commit crime that are engendered by socioeconomic disadvantage. These incentives are unlike “expensive tastes” or vicious preferences; they have little to do with intergroup differences in the effectiveness of legal and social deterrents to crime, and we can acknowledge their relative force even if we believe that “crime doesn't pay” or that wrongdoing is inherently bad for the wrongdoer.
Not all incentives to break the law, or to do wrong, are relevant to the morality of blame. For example, there is a sense in which a person who is extraordinarily selfish often has stronger incentives to do wrong than someone more caring: the payoffs for him, given the way he is, are usually greater. The fact that I stole your money because I am greedy might explain my action, but that fact in and of itself cannot plausibly give you a reason not to blame me for what I've done. If anything, that explanation gives you a reason in favor of blaming me, not a reason against it.
The strength of a person's incentives to commit any given crime depends in part on the objective costs and benefits associated with both the crime in question and the available alternatives. One way to quantify these incentives would be to rely on a theory about what is objectively good for people, and then to show how committing crime (or certain kinds of crime) is likely to bring about a greater quantum of good for a disadvantaged individual than it would be for someone well-off. The problem with this strategy is that there is deep disagreement between rival theories of the good.
There are two plausible ways to measure these incentives without relying on a theory of the good, however. First, we could measure one's incentives to commit any given crime in terms of Rawlsian “primary goods.” For Rawls, primary goods are things that anybody would want, regardless of whatever else they wanted—including freedom of thought, liberty of conscience, freedom of movement, free choice of occupation, income and wealth as means for achieving a wide range of other ends, and what he calls “the social bases of self-respect.”Footnote 28 The incentives one has to commit a given crime might be thought of as the primary-good-related payoffs one associates (or would associate, under some idealized epistemic conditions) with that crime. Second, one might think of incentives in terms of the “capabilities approach” developed by Amartya Sen and Martha Nussbaum.Footnote 29 The relevant metric on this approach tracks (roughly) one's opportunities to live a life that one has good reason to value. On this approach, the strength of one's incentives to commit any given crime would depend on the likelihood that the crime in question would enhance their opportunities to live a life they have reason to value. I am neutral between these two approaches, and am happy for my arguments to be interpreted in terms of either one.
Understood in terms of either primary goods or capabilities, one's incentives to commit crime depend on a diverse and dynamic set of socioeconomic factors beyond income and wealth. That is why I focus on the disadvantaged, rather than the poor. Income and wealth do play a role in incentivizing crime, but our incentives to break the law are not a function of either, for two reasons.
First, there are a multitude of factors beyond income and wealth that affect one's incentives to commit crime. Low-income residents of neighborhoods where poverty is concentrated and communal distrust is pervasive, for example, face a different outlook from that of low-income residents of neighborhoods that are richer in public goods and friendly social networks or support systems.Footnote 30 African-Americans are routinely discriminated against in hiring, and so ceteris paribus face a very different labor market outlook from Whites in the United States.Footnote 31 Poor African-Americans also face a different labor market outlook from that of poor, non-White immigrants who live in tight-knit ethnic communities that have cornered niche service industries such as nail salons (Vietnamese-Americans), motels (Indian-Americans), parking lots (Ethiopian-Americans), or laundries (Chinese-Americans) and who “hoard” opportunities to work in those industries for their relatives and co-ethnics.Footnote 32 Education, the paradigmatic example of human capital, provides advantages to its holders regardless of their income and wealth, as do personal contacts in the mainstream economy and other forms of social capital. Unconsciously ingrained habits, presentation styles, mannerisms, accents, and even favored leisure pursuits and hobbies—forms of cultural capital—open opportunities for some while closing them for others.Footnote 33 In the United States, Black residents of spatially, socially, and economically isolated areas tend to have the least access to these forms of capital, and are thus left with the least attractive alternatives to crime.Footnote 34 As such, when I talk about “the disadvantaged,” I often have the Black urban poor—William Julius Wilson's “truly disadvantaged”—in mind.Footnote 35 Nonetheless, my analysis does not apply only to how we ought to react when the “truly disadvantaged,” the least well-off, or those below some absolute threshold of poverty break the law.
Second, income and wealth have diminishing marginal utilityFootnote 36 —and perhaps more importantly, they ought to have diminishing marginal utility. Not only do income and wealth contribute less and less to people's subjective sense of well-being the more of them they have; but when people care deeply about accumulating more and more wealth, or raising their income beyond an already astronomical level, we think of this as a moral vice—namely, greed.
This has an important implication for the scope of my argument: while there may be no sharp threshold between “disadvantaged” and “well-off” where the applicability of my argument begins or ends, it should be relatively easy to see where it would and would not have any significant implications. For example, say a young associate at a corporate law firm earns $200,000—exactly ten times more income than a day laborer who makes $20,000. And the manager of a small investment fund earns $2,000,000—exactly ten times more income than the lawyer. If we measure incentives in terms of the capabilities approach or the Rawlsian primary goods, the difference between the former two's incentive to steal a given sum of money is exponentially greater than the difference between the latter, ceteris paribus. The lawyer does not have a significantly stronger incentive to steal than the fund manager.
We should be wary of the idea that the disadvantaged have stronger incentives to commit crime than the well-off because they face weaker deterrents. Criminal convictions are often said to carry a much greater stigma in middle-class social circles than they do among the ghetto poor, and it is easy to imagine how a term of imprisonment might be disruptive to a white-collar professional career in a way that it would not be in the life of a menial laborer or someone who is informally or only irregularly employed. But empirical studies have also found, among other things, that a criminal record more seriously affects job callback rates in the United States for Black ex-felons than for White ex-felons.Footnote 37 Here, the potential deterrent—namely, difficulty obtaining a job in the future—is stronger for the disadvantaged group (Blacks) than it is for the advantaged group (Whites). And even if the cost of incarceration were greater for the well-off lawbreaker, the likelihood of incarceration is almost certainly greater for the disadvantaged, who often live in neighborhoods with a heightened and hostile police presence,Footnote 38 are profiled by police,Footnote 39 and may have much weaker representation if they enter the legal system.Footnote 40 Black defendants in criminal cases are more likely to be subject to negative bias in the courtroom, and jury selection processes may prevent them from being tried before an audience that is disposed to deliver a favorable verdict.Footnote 41 So it isn't obvious whether the disadvantaged face relatively stronger or weaker deterrents to crime, all things considered.
One might object to the idea that the disadvantaged have stronger incentives to commit crime than the well-off by pointing to empirical research that suggests that for the majority of offenders, crime has a negligible expected financial payoff.Footnote 42 Similarly, one could point to the philosophical tradition of thinking that moral wrongdoing makes the wrongdoer intrinsically worse off.Footnote 43 If either of these two claims were true, then it might appear that nobody has any real incentive to commit crime.
These objections are irrelevant to my argument, which is comparative in nature. Even if crime in general does not pay, and even if the moral wrongdoing that goes along with malum in se crime makes one intrinsically worse off, the disadvantaged still have much stronger incentives to break the law than the well-off—regardless of the absolute strength of those incentives.
III. INCENTIVES AND EVIDENCE OF ATTITUDES
Malum in se crimes paradigmatically pit the interests of a wrongdoer against the interests of one or more victims, or against those of society at large. An offender who acts knowingly or intentionally, rather than recklessly or negligently, takes the interests she has in breaking the law to outweigh the interests her victim (if there is a victim) has in being left alone and the interests of society at large in sustaining a law-abiding community. Her interests in committing the wrong in question can be captured—in part, at least—in terms of her incentives. A crime is incentivized in the sense we are concerned with here if it would yield a payoff that anyone would want, regardless of whatever else they might want, or when it would improve one's opportunities to live a life that one has good reason to value.
An offender who has relatively stronger incentives to commit crime, and who takes the full strength of those incentives as her reason for doing so, places less weight on her own interests relative to the interests of the victim or of society as a whole, than does a wrongdoer whose incentives are weaker—ceteris paribus at least. The wrongdoer who takes relatively unimportant interests of his own to outweigh the interests of his victim manifests a more objectionable attitude than he would if he had more important interests at stake.
Consider a pair of comparative moral psychological examples that illustrates this point.
Clockers: Arthur and Brandon, both in their early twenties, occasionally make money by selling heroin to a group of troubled high school students. They each net a few hundred dollars weekly, and their actions have similar consequences for the teenagers they sell to, whose lives are sometimes seriously harmed by drug use and addiction—which both Arthur and Brandon are aware of. Arthur is a janitor at a community center; he has no higher education, and he lives with his grandmother. He has a roof over his head and food to eat, so it would be implausible for him to claim that he sells drugs out of necessity (unless one conceptualizes need in much more generous terms than Anglo-American criminal law does). But he could certainly be motivated to sell drugs by a number of relatively basic wants—moving out of his grandmother's apartment, getting an updated wardrobe, eating a few meals out, buying a modest car, going out on a date; or, more generally, to give himself the economic basis for a slightly higher social standing than being a janitor alone gives him. Brandon, on the other hand, takes all of these things for granted. He is a senior at a prestigious and expensive private college. He has a high-paying job in consulting lined up for after graduation. His parents pay his hefty tuition, cover his rent, and give him a modest allowance for his living expenses—though not enough to afford the expensive nights out and weekends away that he has come to enjoy.
It would not be unreasonable to regard both Arthur and Brandon as selfish in this example. Even Arthur, after all, weights his somewhat fleeting and mundane goals more heavily than his victims’ more fundamental interests in living addiction- and trauma-free lives. But in Brandon's case—putting aside the fact that it might seem very imprudent for him to risk prison time in pursuit of a little extra disposable income, given his affluent background—it might also seem exceptionally callous or even heartless to subsume the interests of his victims in order to meet a set of desires that seem much more trivial and temporary than Arthur's. Of course, Arthur's motivations may have been just as trivial as Brandon's—perhaps he too likes to blow his illicit earnings on the nightlife and weekend trips. But without knowing otherwise, it is at least plausible that he had more humble motivations for his wrongdoing, while in Brandon's case there is no such possibility.
Clockers illustrates a moral asymmetry between disadvantaged and well-off offenders in cases of premeditated, economically motivated crimes committed with full awareness of the consequences for the victims. But the rationale here can extend to a broader set of offenses, including some violent crimes committed recklessly or negligently and for no financial gain. Consider another comparative example that illustrates this broader application.
Warning Shots: One night, Arthur emerges from a local bar in his neighborhood—an area stricken with concentrated poverty and violence. He finds himself in a crowd of people and is accosted by a group of mildly inebriated men who proceed to hassle him, pushing him around and insulting him. Arthur is no physical match for them. One of the men takes Arthur's baseball cap and puts it on his own head, strutting around as if he is modeling. An excited teenager watching the scene indicates that he is recording the altercation on his smartphone, and intends to upload the video to a popular online social media outlet. Arthur realizes that being seen as weak in this setting could be deadly to his reputation—and if the video of him being bullied goes viral, he could be seen as a target for more serious victimization and potential humiliation long into the future.Footnote 44 Though he knows he is in no immediate physical danger, he reacts quickly and instinctively, pulling a pistol from his waistband and recklessly fires several warning shots into the air to show that he is not one to be played around with. He fails to anticipate the kickback when he fires, however, and a stray bullet hits an innocent bystander in the crowd. The next night, Brandon is involved in a similar incident. He is hassled as he tries to leave a bar, and fires his pistol into the air, inadvertently hitting an innocent bystander. Brandon's neighborhood is a leafy, semi-posh community of students and young professionals, though, and because of this he faces no threat of ongoing victimization or humiliation in the future if a video of him being bullied goes viral.
In Warning Shots, we can assume that neither of the two lawbreakers consciously takes the interests of his victim into account at all—both fire pistols recklessly in a crowded area without weighing the interests of the bystanders against their reasons for shooting. But Arthur does so in light of a serious fear for his own future safety and social standing, while Brandon could not plausibly have any substantial reason for acting as recklessly as he did, other than avoiding temporary embarrassment and discomfort.
When the disadvantaged commit crime that is either socially or economically incentivized, we have much less evidence of morally objectionable attitudes than we would if they were better-off. Their alternatives to committing the crime in question are not as good as they would be if they were well-heeled. So the interests that they prioritize over those of their victims or society at large are likely stronger than they otherwise might be. In cases like those described here, it would take a great deal of callousness for a well-off offender to commit the same kind of crime as someone badly off who has much stronger social and economic incentives to do so.
We can easily think of examples where a well-off offender might break the law out of seemingly good motivations, and where a badly off offender could commit the same crime for very trivial reasons, however, like the following.
Outlaw Altruist: Arthur and Brandon both commit armed robbery and home invasion, stealing several thousand dollars from wealthy older couples. Arthur commits the robbery because he is bored and wants to buy a new PlayStation and new clothes. But Brandon does so because he is an “effective altruist” enamored by the ideas of Peter Singer. He intends to send his profits from the crime to a cost-effective charity that provides bug nets for people in malaria-afflicted parts of the Global South.
In Outlaw Altruist, it might seem natural to think that Arthur manifests a more objectionable attitude toward his victim than Brandon does toward his own, despite the fact that Brandon enjoys a much higher standard of living than Arthur does. Arthur takes his own seemingly trivial interest in getting a new PlayStation to outweigh his victim's interests in physical sanctity and personal property. Brandon, on the other hand, seems to be weighing a much more important interest against that of his victim: namely, the basic interest in the survival of those afflicted by malaria in some unnamed part of the Global South. Of course, Brandon could be mistaken about how best to alleviate global poverty or human suffering, but it is his intentions, rather than the truth of his beliefs, that make his attitudes seem less obviously objectionable than Arthur's do here.
Outlaw Altruist shows that it is possible for a well-off offender to manifest a less objectionable attitude than a disadvantaged offender in committing essentially identical crimes—even where the disadvantaged of the two has much stronger incentives to commit the crime in question. But, as I will argue, in the vast majority of real-world criminal cases, the offender's social and economic status can provide useful information about how objectionable his or her reasons for breaking the law were, given (1) the inevitably circumstantial nature of evidence about people's reasons for acting; (2) the demographics of the offending population, and (3) the relative frequency of different kinds of crime.
First, we should note that there is no mechanism through which we can directly find out whether an offender acted out of ill will, and if so, how objectionable his or her quality of will really was. The behavioral sciences, for example, do not give us direct access to the reasons that people acted on in the past. We cannot use fMRI results to discern whether someone convicted of burglary committed the crime out of desperation or simply for the thrill. The evidence we have for attributing one motive or another to a criminal offender is inevitably circumstantial. So the best we can do is to assess the possible motives an offender had for committing the crime in question, and then assess the likelihood that he or she acted on those motives.
Second, the disadvantaged are extremely overrepresented in the criminal justice system. For example, almost 60 percent of Black male high school dropouts born between 1965 and 1969 had been incarcerated by age 30–34, compared to just 3 percent of White men overall, and only 0.7 percent of White men with at least some higher education.Footnote 45 A significant portion of this disparity is explained by the kinds of biases in policing and adjudication that I discussed above.Footnote 46 But much of it is not. Empirical studies consistently find that the disadvantaged are more likely to commit crime than the better-off.Footnote 47
Third, most crimes have obvious social or economic incentives. According to the U.S. Department of Justice's Uniform Crime Reports (UCR), for example, over 87 percent of the roughly 11 million major “index” crimes reported to and recorded by the police in 2007 were property crimes: burglary, larceny theft, and motor vehicle theft. Violent crimes constituted less than 13 percent.Footnote 48 Robberies accounted for 32 percent of those violent crimes. So according to the UCR's estimates, over 91 percent of major index crimes in the United States have an economic payoff. This statistic does not include crimes the UCR classifies as “Part II Offenses,” including drug manufacturing and distribution, fraud, counterfeiting, buying or receiving stolen property, embezzlement, and prostitution—all of which tend to be economically motivated.Footnote 49 Young adults with steady jobs are significantly less likely to commit crime than those who are marginally or irregularly employed.Footnote 50 Many violent crimes that have no economic payoff may also promise a payoff in social standing, given the structural dynamics present in and around disadvantaged communities—so they are often socially incentivized.Footnote 51 For example, where letting a debt go unpaid in a wealthy suburb might be a sign of forgetfulness, doing the same in a low-income urban community might be taken as a sign of weakness and mark one as a target for future exploitation or victimization. In seeking to explain why the disadvantaged are disproportionately involved in crime, we have good prima facie reason to think their social and economic incentives play a primary role, then. As the legendary holdup artist “Slick” Willie Sutton is apocryphally rumored to have said, “I rob banks because that's where the money is.”
The disadvantaged have much stronger incentives to commit the most common kinds of crime than the well-off, and in fact do so at significantly higher rates. Differences in the incentive structure provide the simplest and most obvious explanation for the demographic distribution of criminal offending. So we have good prima facie reason to think that when the disadvantaged break the law, they are motivated in large part by these incentives. If that is true, their reasons for committing crime, and the attitudes those crimes manifest, are less morally objectionable than the attitudes we would find in similar crimes committed by the well-off. In order to be justified in blaming at any given level of severity, we need to have evidence of an attitude that is correspondingly inappropriate in kind or degree. So we cannot blame the disadvantaged for breaking the law as severely as we might were they well-off.
This could potentially imply either of two things: that disadvantage ought to be taken as a kind of mitigating factor with respect to civic blame or, conversely, that advantage should be taken as a kind of aggravating factor. I am agnostic about the latter of those two potential implications. But in the most unequal societies in the developed world—especially the United States—where we blame and punish the least well-off with incredible severity for even the least morally significant forms of deviance, I simply assume that the first of those two implications must follow.
Sometimes, we have better evidence of an individual offender's motives for committing crime than information about his or her incentives can provide. For example, in capital cases in the United States, judges are routinely presented with detailed information about such motives at the sentencing phase. In these situations, it may become clear that socioeconomic incentives tell us little about the attitudes the offender manifested in his or her crime. But individualized sentencing is more likely to illustrate just how powerful this connection is.Footnote 52 And given the overrepresentation of the disadvantaged in the criminal justice systems of the developed world, thinking about the connections among inequality, incentives, criminality, and blame in the way I have suggested is useful as a macro-level heuristic for guiding our moral responses to crime in general.
IV. CRIMINOGENIC CULTURES AND THE POSITIONALITY OF BLAME
So far, I have argued that the extent to which we are justified in blaming disadvantaged offenders is limited if their disproportionate share of criminal activity can be explained by the strength of their incentives to break the law. We have good prima facie reason to accept this premise, but recent survey data suggest that much of the public would be likely to reject it. For example, according to Lawrence Bobo and Victor Thompson, “the most widely endorsed lay account of crime involvement is that ‘people become criminals because they do not care about the rights of others or their responsibilities to society’—88.2 percent of whites and 73.8 percent of blacks endorse this explanation.”Footnote 53 The belief that “poverty and low income in our society are responsible for much of crime” is significantly less popular—in Bobo and Thompson's study, only 61.7 percent of Whites and 67.4 percent of Blacks endorse this latter position.
Some social scientists also reject the premise that disadvantaged lawbreakers are primarily motivated to commit crime by their lack of attractive alternatives. “Cultural” models of criminality have been popular among sociologists since the 1950s, though in most cases those models are not strongly supported by empirical data.Footnote 54 Many of these models hold that groups with high rates of criminality have distinct cultural values or value systems that explain their disproportionate participation in criminal behavior. Marvin Wolfgang and Franco Ferracuti famously argue, for example, that African-Americans have a distinct value system embodied in a criminogenic “subculture of violence,” and that this in large part explains the apparent racial distribution of violent crime in the United States. Wolfgang and Ferracuti's thesis is one of the most cited and well-known hypotheses in criminological theory, despite the fact that it is not borne out in repeated empirical analyses.Footnote 55
Cultural models of criminality do not always adequately distinguish offenders who commit crimes because they have different values (for example, less regard for the well-being of others, a distorted image of masculinity focused on “toughness,” or a desire for excitement at all costs) from those who are pressured to commit crimes by social norms (for example, the threat of being ostracized if they don't protect their reputation through physical violence, or the incentive to exploit others if their community attaches high status to hustlers or pimps). Some cultural models do not explain criminality by appealing to values at all. These theories follow Ann Swindler's influential understanding of culture as a means to generally shared ends, rather than as an incubator of values that serve as ends-in-themselves. According to Swindler, “[c]ulture influences action not by providing the ultimate values toward which action is oriented, but by shaping a ‘tool kit’ of habits, skills, and styles from which people construct ‘strategies of action.’”Footnote 56
To the extent that theories of criminality posit either social norms or Swindler's “toolkit” conception of culture as the explanation for group differences in criminal behavior, they are compatible with the arguments I made in the last section. The social norms prevalent in a community shape the incentives of its individual members. When individuals risk ostracism unless they commit crime, they have strong incentives to break the law, so we have relatively less evidence of morally objectionable attitudes if they do so.Footnote 57 And if those who adopt criminogenic cultural “repertoires” do so not because their ends differ from the law-abiding middle class, but because those subcultures provide them with the tools to navigate difficult structural circumstances, then their criminality is explained by their circumstances, rather than by any morally objectionable attitude.
I want to focus here on cultural theories of criminality that posit values as a primary explanation for crime, as Wolfgang and Ferracuti's subcultural model does. These theories of criminality have a distinct prima facie normative flavor: if the distribution of crime is explained by the prevalence of viciousness among the disadvantaged, then their incentives to break the law seem irrelevant to how we should react if and when they do. Differences in values, not incentives, explain group differences in criminality, on these views—so when the disadvantaged commit crime, we have evidence of attitudes just as objectionable as we would if they were better-off. As such, one might conclude, we should blame them just as harshly as we would if they were well-off.Footnote 58 But, as I will show, a careful philosophical examination of these theories reveals a more complicated moral landscape.
When empirical explanations posit pathological “values” or moral vices as the primary cause of inequality between groups, we ought to push for “higher-order” explanations. Why do disadvantaged groups develop criminogenic subcultures? Wolfgang and Ferracuti admit that they are unprepared to answer this question in their oft-cited study.Footnote 59 But we have two potential reasons to push further.
First, social scientists might have an epistemic, or methodological, reason to push “cultural” models of criminality for higher-order explanations of the criminogenic values they posit among members of disadvantaged groups. Social scientific explanations are, ceteris paribus, to be preferred when they meet the “meta-explanatory criterion,” which requires them to be able to provide plausible accounts of the deeper root causes of their first-order explanantia. Such explanations, some argue, are both “likelier” and “lovelier” than those that fail to meet the criterion: they are more likely to be true, and they provide a greater degree of potential understanding.Footnote 60
Second, there is a normative rationale for preferring social scientific explanations that meet the meta-explanatory criterion: viz, we should not base our responses to the behavior of others on shallow explanations for that behavior when deeper explanations that we have access to would paint the normative significance of the behavior in a completely different light.Footnote 61
The most empirically well-supported kinds of higher-order explanation for “subcultural value” models of criminality undermine the apparent normative implications of those models. Anderson's well-known ethnographic study of low-income African-American neighborhoods in Philadelphia during the 1990s provides a prime example. Anderson argues that there is a “code of the street” in these communities—a system of values that endorses crime and violent modes of conflict resolution, somewhat akin to Wolfgang and Ferracuti's “subculture of violence.” But on his account, the code of the street is not simply a product or manifestation of bad values. Rather, it is an adaptation to adverse structural conditions.Footnote 62 According to Anderson, the recurring patterns of disadvantage and discrimination in these neighborhoods create a background against which this street code is the strategic equilibrium for the African-American adolescents who live there, given their limited opportunities and the unattractiveness of their alternatives to crime. It is their environment, not their values, that makes the street code strategically adaptive.
Several other social scientists find a similar link between the structural and cultural factors that cause crime in socioeconomically disadvantaged communities. Culture is often said to “mediate,” or manifest the influence of, the social structure. Discrimination and structural disadvantage reduces the ability of ghetto residents to collectively regulate social problems. Distrusting one's neighbors and being cynical about mainstream social norms becomes strategically adaptive. Legitimate opportunities for social status are limited, so the self-respect of residents is often dependent on adhering to (and sometimes enforcing) the code of the street.Footnote 63 So we should not be so quick to think that subcultural models of criminality provide a compelling moral indictment of disadvantaged criminal offenders.
There is a standing philosophical objection to this normative suggestion, though. Some moral philosophers argue that all that matters when thinking about the appropriateness of blame is whether, and to what extent, a given action manifests a morally inappropriate attitude. It doesn't matter where that attitude comes from, on this view.Footnote 64 Extending this view to the case at hand, one might argue that offenders who are “products of their environment” and who become overly impulsive, aggressive, or feckless may be unlucky from a moral perspective to have turned out that way, given that they didn't choose the conditions they had to grow up in. But their actions nonetheless manifest their attitudes, and that is enough of a basis to blame them to the corresponding extent. On this line of thinking, the structural factors that shape the subcultural value systems through which disadvantaged offenders form criminogenic dispositions are irrelevant to the question of how we ought to respond to their crimes. I want to argue the contrary here.
As citizens, we collectively control the social forces that make adhering to these kinds of codes strategically adaptive.Footnote 65 When the disadvantaged commit crime, we might think that we have just as much evidence of unsavory motivation as we would have if they were better-off—especially if we adopt “cultural” models of criminality, or believe, as most in the United States do, that “people become criminals because they do not care about the rights of others or their responsibilities to society.” But it does not follow that, as citizens, we can appropriately blame disadvantaged lawbreakers just as harshly as we would if they were well-heeled. For when we, as a society, incentivize a subset of our citizenry to cultivate subcultural norms and values that condone lawbreaking, our position to blame them for breaking the law is greatly weakened. If we have structured our society so as to systematically encourage criminogenic subcultures in disadvantaged communities, it is unfair for us to blame the people who have to live in those communities for manifesting the attitudes those subcultures consist in.
V. JUSTICE, SOCIAL MOBILITY, AND INCENTIVES OVER TIME
The arguments above differ from similar approaches in the literature in a number of crucial ways.Footnote 66 First, I focus on the role of disadvantage—including human, cultural, and in social capital—rather than just material poverty, in incentivizing (rather than “causing”) crime. Second, the argument in Section IV emphasizes our collective complicity in incentivizing the formation of ill will itself, through so-called criminogenic subcultures (if one believes they exist), rather than our complicity in incentivizing wrongdoing or crime per se. And, third, I have neither relied on a background theory of social justice nor the assumption that socially stratified societies in the present-day developed world are unjust, whatever the correct theory of justice happens to be. For example, perhaps John Rawls's theory of justice as fairness is the correct theory of social justice, and perhaps even the most unequal societies in today's developed world meet the demands of Rawls's theory. I believe both premises to be false, but my arguments here are consistent with the idea, for instance, that inequalities between the advantaged and the disadvantaged in the United States work to the maximal benefit of the least well-off, satisfying Rawls's Difference Principle—though that idea is not even remotely plausible.
One might nonetheless think I am smuggling intuitions about social or political justice into my account. After all, I am talking about actual societies characterized by pervasive inequality, and I have focused my empirical attention on research pertaining to the United States. The disadvantaged in our present-day socially stratified societies, and in the United States in particular, are often perceived as victims of injustice and oppression—at least on many views about social justice. So, one might think that in order to show that the argument can work without the assumption that the incentive-generating inequalities are unjust, I need to show how those incentives undermine the justifiability of blame in the clear absence of any injustice—not just in cases where there is no explicit evaluation of society in those terms.
In that vein, cases where an offender has experienced extreme downward socioeconomic mobility, thus increasing the strength of his incentives to commit crime, might seem particularly problematic for the account I have defended here.Footnote 67 Consider the following example.
Downward Mobility: Brandon becomes so enamored with expensive nightlife, party drugs, and mingling with B-list celebrities that he drops out of college, squanders his trust fund, and alienates his wealthy (but serious) family and friends. Arthur, on the other hand, is born into poverty and never had a good opportunity to make a legitimate livelihood. Both resort to street-level robberies in order to support themselves. Even if we stipulate that the two have equally strong incentives to commit that crime at the moment, it seems intuitive to think that Brandon is worthy of a more severe response than Arthur.
The first thing to notice about cases like Downward Mobility is that they are uncommon, given that in societies where there is a great deal of socioeconomic inequality, social mobility tends to be very low.Footnote 68 People tend to find themselves in circumstances similar to those they were born into and grew up in. And extreme downward mobility is rare, given the lengths that many governments go to prevent it—for example, the U.S. federal government spent $725 billion on Social Security and $116 billion on unemployment insurance in 2013.Footnote 69
Social mobility is also overstated when measured solely in terms of income and wealth, as it is in most empirical research. When considered against the richer milieu of factors that contribute to advantage and disadvantage, it becomes clear that truly extreme downward social mobility is not only rare, but almost inconceivable, given the many forms of quasi-immutable advantage that people cannot simply disabuse themselves of. For example, truly ridding oneself of the advantages that come along with being raised with dominant forms of cultural capital—accents, hobbies, tastes, and the like—borders on the impossible. The well-off cannot simply discard their higher education or knowledge of mainstream institutions.
In particular, the kinds of advantages that come from being a member of a favored racial or ethnic group—often discussed in terms of “White privilege,” though the analysis could be extended to any favored group depending on the context—are especially infeasible to divest one's self of. Whites cannot unilaterally rid themselves of the “spared injustice” that comes with their racial status in America; for example, they cannot unilaterally choose to be harassed or brutalized by police without due cause. And neither can White Americans feasibly divest themselves of the unjust forms of enrichment that result from longstanding patterns of discrimination against Blacks; for example, they cannot change the fact that they have a wider range of homes to choose from between because Blacks are “redlined” into certain neighborhoods by discriminatory housing policies and private lenders.Footnote 70
Because of this, the idea that we should respond more harshly to a downwardly mobile offender like Brandon than we should to someone like Arthur, who grew up without any of Brandon's advantages in life, may itself be drawing on some confused intuitions. Perhaps what we are basing that response on is not the idea that Brandon was himself at fault for his own downward mobility, but rather the intuition that he must still have a leg up on Arthur.
Still, on the face of it, if we simply stipulate that the two have equally strong incentives to commit the crime in question at the moment, then we may have intuitions about how we ought to respond that seem inconsistent with the theory I have defended.
This inconsistency can be resolved when we notice that the incentives we have at the exact moment when we act wrongly do not reveal as much about our attitudes as a broader view of the incentives and personal characteristics that pushed us to take the course of action that led to the wrongdoing over the long run. In Downward Mobility, Brandon creates his own incentives to commit crime through careless, shortsighted, and ultimately selfish behavior, while Arthur is born into the disadvantage he faces. Furthermore, as Richard Lippke argues, resisting chronic temptation to break the law over the course of a lifetime is much more difficult than resisting a fleeting or temporary incentive to do so.Footnote 71
On some “luck egalitarian” theories of justice, where social inequalities are justified if and only if they are the result of citizens’ different choices, rather than luck, the fact that Brandon more or less chose his own downward mobility, while Arthur was born into disadvantage, entails that Arthur's incentives to commit crime are a result of injustice, while Brandon's are not.Footnote 72 If that form of luck egalitarianism is correct, then it may happen to be true that only criminogenic incentives caused by unjust inequalities can limit the extent to which we are justified in blaming lawbreakers. But on my account, it is not because those incentives are the result of injustice that they do so. Rather, it is because of what they say about the offender's attitudes over the course of time. And my account in no way supports or relies on the truth of luck egalitarianism as a theory of social (or distributive) justice.
VI. THE DANGER OF DISRESPECT
One potential worry about the proposal I have defended here is that it might stigmatize the disadvantaged. Imagine, for example, that state legislatures in the United States adopted guidelines explicitly incorporating the socioeconomic, racial, or ethnic characteristics of criminal offenders into the formula for producing recommended sentencing ranges for any given crime. In this world, we might imagine that both grand larceny and assault-and-battery would be punishable by 12–18 months in prison for White offenders living in low-crime, wealthy suburban towns, but only 3–6 months in county jail for Black offenders in poor inner-city areas. Obviously—to understate things considerably—this kind of legislation is politically infeasible at the moment. But there are also reasons why we might think it would be morally undesirable. For it might exacerbate damaging and exaggerated stereotypes about the criminality of the Black urban poor; Americans (especially Whites) significantly overestimate the percentage of crime that is accounted for by Black and Latino offenders.Footnote 73 That would be intrinsically bad, and it might also cause a political backlash, as stereotypes of criminals as Black, and of Black people as criminals, are strongly correlated with punitive policy preferences.Footnote 74
I have not proposed anything like that fantasy legislation, however. Indeed, I have been completely silent on how my proposal ought to be realized or expressed in criminal law and penal policy. Neither blaming nor declining to blame necessarily involves any outward expression of one's inner attitude. We can blame people for things without ever letting them know, and we can let them think we blame them for things that we in fact do not. We cannot stigmatize anyone merely by blaming or declining to blame them; stigma arises only when a community becomes collectively aware of a shameful ascription. As such, worries about stigmatizing the disadvantaged might limit the ways in which we could act on the moral conclusions I have argued for here, at the level of penal policy, but worries about stigmatization do not tell against those moral conclusions themselves.
Another related worry about the proposal I've defended—regardless of how we might implement it at the policy level—is that it might fail to respect the agency of the disadvantaged. Insofar as citizens of society fail to respond to the crimes of the disadvantaged in the way that would be fitting or appropriate under normal conditions, one might think that we are implicitly denying that the disadvantaged have the capacity to act as fully responsible agents. Strawson famously called this way of looking at one another the “objective attitude.”Footnote 75 If we mitigate the extent to which we blame disadvantaged lawbreakers in light of the evidential and positional concerns I have raised, then we might not be giving appropriate weight to the fact that they are agents, rather than just objects being manipulated by external societal forces.
I argue only that we ought to mitigate the extent to which we blame disadvantaged lawbreakers, not that we ought to absolve them of blame altogether. Still, one could argue that in doing so, we would be partially denying their agency. That would be an implausible conclusion to draw from the “epistemic” argument in Section II, however. The extent to which we are justified in blaming one another for the bad things we do depends in part on the kinds of attitudes our actions manifest. The severity with which we might be justified in blaming one another depends on how morally objectionable those attitudes seem, in light of the evidence available to us. But the fact that I have little evidence of anything morally inappropriate about your motivations for acting does not entail that I see you as a mere object driven by social and physical forces, rather than an agent. I might see no ill will in your actions; but that does not mean that I see no will at all. I could simply think you did the wrong thing but had relatively good intentions in doing so.
The “positional” argument in Section IV might seem more vulnerable to this objection, though. For if I perceive the same attitudes in a poor man's thievery that I do in a rich man's equally harmful swindling, but blame the poor man less severely, then one might think I am treating him as something less than a full-fledged agent. It is true that on my account, we ought to mitigate the extent to which we blame disadvantaged lawbreakers even if they are driven to commit crime by “criminogenic subcultural values,” rather than their socioeconomic incentives. But this is not because we have forced them to break the law or removed their agency. Rather, it is because we, as citizens, have collective control of the social structures that incentivize them to adopt those values. As citizens, thus, we are not in a strong position to expect them to obey the law. The rationale here does not appeal to facts about the autonomy or agency of the disadvantaged. Rather, it appeals to the kind of civic relationship we have with them as a collective society.
I have not argued that we should completely absolve disadvantaged lawbreakers from blame, nor have I taken any position about whether the practices of blame or punishment should be abolished altogether. The argument here is compatible with the idea that we are never justified in blaming anyone for anything. But it aims neither to support nor to undermine the abolition of blame or punishment as a whole. It simply sets out some limiting conditions under which we cannot justifiably blame people as severely as we might in fact do otherwise.
Finally, it is worth noting that in the era of mass incarceration, it seems painfully laughable to think that the severity with which we blame disadvantaged lawbreakers is a good way of showing them respect. If, as Barbara Fried argues, our societal “blame mongering” is in large part responsible for the past four decades of punitive policies, which have ravaged poor Black communities in the United States, the claim that the disadvantaged somehow have a “right” to this kind of “respect” is befuddling, if not incomprehensible.Footnote 76 The words of Luther Ingram—“if loving you is wrong, I don't want to be right”—seem apt here. If my proposal is disrespectful, that is, in light of the world around us, it is hard to see why respect is something we ought to care about in this context.
VII. CONCLUSION
I have argued for the somewhat abstract conclusion that we, as citizens—imagining that we know nothing about ourselves except that we belong to a society characterized by deep (but not necessarily unjust) social and economic inequality—would be wrong to blame the disadvantaged for committing crime as harshly as we would if they were well-off.
Because the theory I have presented here does not rely on the premise that our unequal societies are also unjust, it is well suited for implementation by the judiciary—for example, at the sentencing phase of the criminal trial. Judges can use the reasoning I have outlined here to make decisions about how severely we would be justified in blaming and punishing individual offenders—while setting aside their views about social justice more broadly.
But this theory has implications for larger-scale areas of criminal justice policy as well. As I suggested early on, given the overrepresentation of the disadvantaged in all of the prison systems of the developed world—and especially in the United States—using the reasoning I have developed here as a macro-level heuristic for guiding our moral responses to crime in general can provide a general orientation to debates about penal policy: it is one reason (among many), for example, to work against the mass incarceration of the ghetto poor.
And this theory can also give us more specific guidance in how we ought to design our criminal justice systems, given such an orientation. For example, if we have reason not to blame or punish the disadvantaged as severely as the well-off for breaking the law, then we should be skeptical of policy programs that indirectly punish the disadvantaged more harshly than the well-off for the same kinds of offenses—even if those programs are intended to reduce the overall footprint of the criminal justice system. Two examples of policy regimes that do so are the “recidivist sentencing enhancements” that require or advise incremental increases in sentence severity for each prior conviction that a current offender has on his record coming into the courtroom; and “sociodemographic” risk assessment—where an offender's education level, employment history, neighborhood and family characteristics, marital status, and other factors are aggregated to calculate his risk of future crime, which is in turn used to make prosecutorial, sentencing, and corrections decisions. Both prior convictions and periods of incarceration, on the one hand, and the sociodemographic characteristics that statistically predict future crime, on the other, are proxies for (and also in many ways constitutive of) social and economic disadvantage. As such, both of these policy regimes save the harshest treatment for those whom we should be the most reluctant to punish. I discuss these two areas of law and policy, in turn, in future work.
