Constitutionalizing the harm principle.(Company overview)

I Introduction

In this paper, I argue that a constitutionalized Harm Principle could ensure that people are not jailed unless they deserve it. I do not aim to outline every possible type of bad consequence beyond harm that might be sufficiently serious to justify criminalization. Instead, I focus on criminalization that is backed up with jail terms and I argue that wrongful harm to others provides the only moral and constitutional justification for sending people to jail. Imprisonment harms the prisoner, and so she should not be imprisoned unless she has caused proportionate harm to others. I argue that the sufficient conditions for sending an offender to jail are: (1) that the offender's actions have (or risk) bad consequences that are sufficiently harmful to make her commensurately deserving of penal detention; and (2) that the offender culpably (that is, with a state of mind somewhere along the intentional/reckless/gross negligence continuum)I chose (aimed or attempted) to bring about those bad consequences or did so with reckless indifference. The lawmaker would need to demonstrate from the ex ante perspective that proposed offenses carrying jail sentences are a proportionate and fair way of dealing with the wrongs involved. Because jail (including short sentences of a few days) involves hard treatment (seriously harmful consequences for the prisoner) harm to others would be the only bad consequence of sufficient weight to justify a jail sentence. Jailing people for wrongful behavior that has harmless consequences would be an unjust and disproportionate response. (2) According to the Harm Principle, harm to others provides a good justification for criminalization when it is likely to be effective in preventing (eliminating, reducing) harm to persons other than the harmdoer.

The question for the purposes of constitutionalizing the Harm Principle is not about what the state may or may not criminalize, but rather it is about when it may legitimately deprive a person of her liberty by means of penal detention. I argue that the Harm Principle should be recognized as a constitutional principle of justice to prevent the government from depriving offenders of their liberty for engaging in harmless wrongdoing. My discussion focuses on the legitimacy of sending people to jail without good reason, rather than on the wider issue of the legitimacy of criminalization. I argue that intentional/reckless/gross negligence harm doing to others provides an objective moral justification for sending a wrongdoer to jail. (3) Jailing a person who harms others can be reconciled with justice and fairness so long as she has caused objective harm and the harm is sufficiently serious to warrant penal detention. I also aim to demonstrate that the courts are equipped to ascertain the harmfulness of conduct for this purpose. Coupled with this, I show that the courts have in the past recognized the proportionality requirement as a constitutional principle of justice and thus could do so in the future with reference to the objective standards supplied by the Harm Principle and moral culpability.

II Wrongful Harm as an Objective Justification for Penal Detention

Fairness (or just deserts) in the penal detention context is a deontological constraint. Although the general aim of the criminal law is to deter and prevent wrongdoing to others, deterrence through the communication of censure supplies only a prudential reason for obedience. (4) More importantly, it does not supply an objective (or critical) moral justification for individualized criminalization and punishment. The moral justification for labeling a wrongdoer's actions as criminal and for sending her to jail when her actions have sufficiently harmful consequences is that she deserves to be punished when she wrongfully brings about bad consequences for others. The fact that she and others like her may be deterred from engaging in similar wrongdoing is an instrumental aim or function of the institution of punishment and criminalization rather than an objective moral justification for it. The instrumental (5) crime prevention function of criminalization and punishment is fair and just to the extent that it is necessary to have institutions and mechanisms such as the police, the courts, the criminal law, and prison sentences to protect genuine human interests. (6) This may explain the legitimacy of having a system of criminalization and punishment, but it does not explain when that system should be used and to what extent it should be used. To determine whether it is fair to criminalize conduct or to use a jail sentence to enforce an instance of criminalization, the lawmaker has to consider why a given activity is worthy of criminalization and punishment.

John Tasioulas argues that Andrew von Hirsch's theory of punishment is a hybrid theory incorporating both consequential (crime prevention) and deontological (just deserts) elements and thus is not a workable theory. (7) However, the correct reading of von Hirsch's theory is that it uses consequential and deontological theories independently to explain and justify distinct aspects of the institution of punishment. Consequentialism, as used by von Hirsch, merely explains the legitimate aim or function of the institution of punishment, that is, the instrumental aim to deter and prevent criminal wrongdoing generally. It also explains the aim of having a system of criminalization and punishment in place to deal with individual wrongdoing. Meanwhile, the deontological constraint adopted by both von Hirsch and myself (just deserts for individual wrongdoing) justifies individualized punishment in objective moral terms: it provides an objective moral justification for criminalization and punishment at the individual level. Von Hirsch argues that it is the offender's moral wrongdoing that provides the moral justification for invoking the institution of punishment in individual cases. (8) Inflicting individual just deserts on wrongdoers might indirectly achieve the prudential aim of convincing others not to engage in similar wrongdoing, but it is individual wrongdoing that justifies individualized punishment.

According to this philosophy, an individual's actions will be deserving of punishment when those actions aim to bring about bad consequences for others. The lawmaker can demonstrate that criminalization and punishment are fair responses by pointing to the wrongfulness and harmfulness of an offender's actions. It is the potential harmfulness of certain bad consequences that flow from agents' intentional actions that make it fair to prohibit agents from doing such actions and also for stating in advance that those who do so may go to jail should their actions result in sufficiently harmful consequences. The legislature has to presume that some people will bring about bad consequences with a certain state of mind, and therefore must draft appropriate offenses, sentences, and defenses for the courts to apply from an ex post perspective. It presumes from an ex ante perspective that those who intentionally or recklessly harm others without an excuse or justification ought to be punished. From the ex ante perspective, the lawmaker relies on the generalization that intentional and unjustifiable/inexcusable harm doing is wrongful. The lawmaker is not concerned with whether a particular individual is guilty, because that is an ex post trial consideration. The lawmaker has to demonstrate that the conduct is not only morally wrongful, but also sufficiently serious to warrant penal detention rather than a fine (and this is satisfied by considering the harmfulness of the bad consequences). Mere objective wrongdoing (intention to bring about a bad consequence) in itself would not be sufficient to justify sending someone to jail. For example, false promising is wrongful but we would not want to jail all those who make false promises. (9) It would be fair and just to use penal detention only to punish false promising that aims to bring about certain harmful consequences for others and only when those consequences are sufficiently harmful to justify attaching a jail term to the offense.