Consent, Punishment, and Proportionality

Author(s): Larry Alexander

Source: Philosophy & Public Affairs, Vol. 15, No. 2 (Spring, 1986), pp. 178-182
Published by: Wiley
Stable URL: https://www.jstor.org/stable/2265384
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LARRY ALEXANDER Consent, Punishment,
and Proportionality

C. S. Nino has recently advanced what he describes as a "consensual

theory of punishment."' Nino's theory is an attempt to produce a gen-
uinely liberal position on punishment that on the one hand does not
require assessments of moral deserts (the worth of one's moral character
reflected in one's acts), and on the other hand does not entail unfairly
sacrificing individuals for the common good. The classical problem for
liberals has been that while assessing moral desert looks to be obviously
illiberal, jettisoning considerations of moral desert leads inexorably to
unfair sacrifice of individuals, also illiberal.
Nino's solution to this liberals' dilemma is to substitute consent for
moral desert as the justification for imposing punishment on specific
individuals. Punishment then can be justified as an institution for social
protection, and one that does not impose unjustifiable burdens on indi-
viduals who commit crimes, not because they deserve their burdens, but
because they have consented to them. Consent is a trump card in liberal
theory, with the power to convert an otherwise unfair distribution of
burdens into a justified one. And one who commits a crime consents to
punishment because he has acted voluntarily with knowledge of his act's
legal consequences, that is, the punishment prescribed for that act. (This
is true if one assumes there is no moral reason not to attach the legal
consequences to the act, an assumption that surely looks reasonable to
grant in the case of acts that are crimes, but an assumption that is
problematic nonetheless for reasons we shall come to shortly.)
Nino's argument surely appears sound. Within liberal theory, consent

i. C. S. Nino, "A Consensual Theory of Punishment," Philosophy & Public Affairs I 2,

no. 4 (Fall I983): 289-306.

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 179 Consent, Punishment,
and Proportionality

does alter the moral justifiability of burdens imposed on individuals. And

the voluntary commission of an act one has no moral or legal right to
commit, with clear notice of the legal consequences attached to that act,
surely can be deemed to be consent to those consequences. Indeed, I
made almost the exact same argument in an earlier article, where I
discussed the enterprise of preventing wrongful acts by making their
commission risky.2 In that article, however, I raised a problem with the
consensual theory of punishment, a problem that Nino completely ig-
nores. The problem is that consent not only substitutes for desert as a
justification for punishment, but it also overrides desert as a limitation
on the severity of punishment. Put differently, the consensual theory of
punishment justifies any punishment, even if the punishment is severely
disproportionate (in terns of the actor's deserts) to the severity of the
crime. There is no proportionality limit to consensual punishment.
The point is simple enough. If the law imposes capital punishment for
overparking, then one who voluntarily overparks "consents" to be exe-
cuted. Execution is therefore not unfair. And deserts by hypothesis do
not matter. The liberal who embraces the consensual theory of punish-
ment has no "liberal" argument against severe punishments for minor
crimes.
Nino might reply that the severity of punishment, while not a matter
of fairness on the consensual theory, nonetheless may impose costs that
exceed its benefits. Indeed, Nino does argue that punitive measures are
only justifiable if they involve "lesser harms than the harm[s] feared" and
are "necessary and effective means of protecting the community against
[those] greater harns. . . ."3
The notion of lesser and greater harms is ambiguous, however. Under-
stood aggregatively, it could authorize imposition of very severe punish-
ments for trivial crimes if the total harn averted is less than the total
harm imposed by the punishments. Nino can be read as treating harm
aggregatively, because he relies on the notion of lesser and greater harms
to defend utilitarianism-the paradigmatic aggregative harm theory-
against the charge that it justifies extremely harsh punishment:

[T]he argument that social protection would allow extremely harsh

2. Lawrence Alexander, "The Doomsday Machine: Proportionality, Punishment and Pre-

vention," The Monist 63, no. 2 (April I980): I99-227.
3. Nino, "A Consensual Theory of Punishment," p. 299.

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i 8o Philosophy & Public Affairs

penalties for preventing even the most trifling offenses is clearly ab-
surd: hanging a motorist for the sake of preventing parking offenses
would be self-defeating as a measure of social protection on the as-
sumption that one accepts . .. [that] the death of a person is worse
than a congested traffic flow. .. .4

If Nino, like the utilitarianism he defends in the previous passage,

treats harms averted and imposed by punishment aggregatively, then
even though one might indeed place a person's life above uncongested
traffic on one's scale of values, Nino's argument requires one to place
the sum of the severe punishments imposed higher than the sum of
crimes averted on that scale. Would the execution of one minor traffic
offender be worthwhile if it cleared up the streets everywhere forever
after? We do after all build tunnels and allow pleasure driving knowing
that some lives will probably be lost.5 The number of persons affected
does seem to matter morally.
Even if one treats the harms averted and imposed by punishment non-
aggregatively, however, Nino's consensual theory can be used to justify
harsh punishment. That is so because consent appears to obviate any
need to make punishment justifiable on a cost-benefit basis. In my earlier
article examining consensual punishment I asked the reader to consider
the following example of "excessive punishment":

Suppose a man receives a phone call from a burglar who says, "I've
been spying on you and know you're going out tonight. I plan to bur-
glarize your house in order to steal your valuables. But I want you to
know that I have a very bad heart, and if you hide your valuables, I
might very well suffer a heart attack by expending a lot of energy and
suffering anxiety in looking for them. So please leave them in plain
sight; for I am definitely going to enter your house and look for them
until I find them or drop dead." The listener hangs up the phone, takes
his valuables, hides them on the very top shelf of his closet, and leaves.
He returns home and finds the burglar, dead from a heart attack, on
the floor. Excessive punishment for a non-violent burglary?6

4. Ibid., pp. 290-9I.

5. See Larry Alexander, "Retributivism and the Inadvertent Punishment of the Innocent,"
Law & Philosophy 2, no. 2 (August I983): 223-46, 242.
6. Alexander, "The Doomsday Machine," pp. 209-IO.

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 I 8I Consent, Punishment,
and Proportionality

I went on to give some other examples7 that were structurally similar

both to one another and, I argued, to a "doomsday machine" that is
programmed to mete out "excessive" punishment to any person who
commits a crime without an excuse or justification and with notice of
the doomsday machine's existence. I further argued that the doomsday
machine was structurally similar to humanly imposed excessive punish-
ment, except that in my hypothetical, no human was capable of pre-
venting the doomsday machine's punishment once the crime was com-
mitted.8 Finally, I argued that the relative fallibility of human beings and
doomsday machines in detecting guilt is irrelevant to the question of the
proportionality of punishment and crime, as is the timing of punishment
(contemporaneously with or after the crime's commission).
If my arguments were correct, then a cost-benefit analysis of the se-
verity of punishment is out of place in a consensual theory. Costs and
benefits are perhaps calculated in determining what our rights are and

7. "Consider some other examples that I feel are parallel. What if a man keeps a moat
to protect his castle (or an electric fence to protect his house), and he receives a letter from
someone who says that the first time the castle (house) is deserted he will attempt to enter
it; and because he cannot swim (is not shockproof), his death will be on the owner's hands
if the moat is not drained (the current not turned off). Is there a duty to drain the moat
(shut off the current) in order to avoid excessive punishment? And what if one hides his
jewels on top of an unscalable cliff after having been told by a thief that the latter would
attempt to climb it if the jewels were placed there?
"I might go on in my hypotheticals to drag out vicious dogs, crocodiles, and spring guns
to protect persons from petty crimes, and pit these devices against petty criminals, whose
common denominator is that they all know of the certain consequences of their acts, know
that their acts are illegal, are determined to proceed with them anyway, and are acting
premeditatively without any recognized legal excuse, justification, or incapacity." Ibid., p.
2IO.

8. In Nino's reply he argues that my examples are structurally dissimilar to punishment

because the harms to the criminals in those examples are caused by the criminals them-
selves, whereas the harm of punishment is caused by the officials who mete it out (Nino,
"Does Consent Override Proportionality?" Philosophy & Public Affairs I5, no. 2 [Spring
I9861: I83-87). In my original article, I in fact raised the question whether this difference
in causation made any moral difference. I have now concluded, based on Warren Quinn's
recent article in this journal, that it does not (Warren Quinn, "The Right to Threaten and
the Right to Punish," Philosophy & Public Affairs I4, no. 4 [Fall I9851: 327). (Quinn does
believe that there are limits to the amount of punishment that may be threatened and, if
the threat is unavailing, imposed [pp. 346-471. For example, as I understand him, he would
not allow me to throw my waterproof watch into Sea World's shark tank to keep it away
from a would-be thief. I'm not convinced.) In any event, as I read Nino's concluding
comments, he appears to concede that disproportionate punishment can be justified.

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182 Philosophy & Public Affairs

hence what acts should be crimes. At that point they can be morally
disregarded. We can hide a penny in a deep underwater cave patrolled
by sharks even if the benefits of deterring its theft are in no way com-
mensurate with the costs of one mutilated thief.
There is a good reason then for liberals' uneasy recent return to retrib-
utivism. Retributivism at least limits punishment to culpability, even if
it requires an (illiberal) assessment of moral worth. The consensual theory
of punishment, though a paradigmatically liberal theory, has implications
so draconian that liberals should surely pause before embracing it.

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