type 2: Husak and Bergelson

Husak and Bergelson discuss in their two pieces if punishment is necessary and the issues with strict liability in the legal system. Bergelson in, “Does Fault Matter?” asks the central question, “Is it morally permissible to punish people who, through no fault of their own, produced or threatened harm to others?” (p. 375). Husak, “Why Punish the Deserving? also asks a similar question as stated in the title, “Why punish the deserving?” (p. 448). Each author gives their own argument and accounts on why it is not morally right to punish those who commit wrongdoing. They agree that the current punishments are rather harsh and unnecessary and reform is needed.

Bergelson in her work is very against strict liability and harsh punishment. She also agrees that recently, punishment has been unfair, “Recent prosecutions show a ‘‘trend toward harsher sentences, penalties, and collateral consequences.” (p. 376). In order to fix this issue in the legal system, a great question Bergelson asks about the system is, “what defines a criminal wrong — social harm or the perpetrator’s culpability?” (p. 377). She believes that social harm can cause a criminal wrong just as much as the perpetrator’s own culpability. Social norms control much more in our society is realized. The public expects criminals to be punished and put in jail, and public officials want to please their constituents. There are political reasons for punishment as well, Bergelson explains, “Since deliberate infliction of suffering or deprivation is prima facie bad and impermissible, it has generally been agreed that punishment requires moral as well as legal and political justification” (p. 378). If punishment was actually necessary? Why would so much justification be needed for it? The criminal justice system is not totally equal as well, “having a criminal record itself is a liability” (p. 379). Those with a criminal record are way more likely to have a harsher punishment and be found guilty. Bergelson believes that the criminal justice system and the need for punishment are unnecessary.

Additionally, Bergelson also illustrates that innocent people are going to end up being punished despite the system in place. She states, “What happens in the case of the innocent aggressor is that harm trumps culpability: an innocent actor loses his equal moral standing with the rest of the world and becomes liable to suffer harm merely by virtue of threatening harm.” (p. 380). Again, socially and politically, punishment is needed even when the aggressor is not guilty. Inherently, the system is going to punish those who are innocent, “The very existence of punishment presumes that sometimes people who are punished are innocent” (p. 386). In general, Bergelson’s central argument is, “In this article, I have tried to confirm my belief that strict liability public welfare offenses are unjust” (p. 381). She illustrates this through various issues in the system.

Husak argues similarly to Bergelson. He answers his central question “Why punish the deserving” somewhat sarcastically with the response, “The short reply one might expect to this curious question is: “Because they deserve it” (p. 448). He answers it this way because this is how so many who believe in the current legal system would answer as well. Husak states, “ Our criminal justice system is not thought to be obligated to make a concerted effort to punish each and every deserving offender.” (p. 449). He agrees with Bergelson that our criminal justice system needs reform and punishes those unfairly. The system is believed to not have pressure to be fair and punish those equally. There is an obvious issue with this, it is seen where, “ The prison population has recently exceeded the one million mark, and shows no signs of abating.” (p. 450). With innocent people being convicted alongside those who committed small crimes, it is no surprise that the prison population is high. Husak offers multiple solutions, the first being, “A system in which a subset of deserving offenders should actually be punished may have a different general justifying aim than a system that endeavors to punish every deserving offender.” (p. 453). The second solution offered is, “Our state might move closer to the ideal of justice and increase the value of social programs were devised to improve the plight of the poor, the homeless, and the like. (p. 454). Reform can either be found directly in the criminal justice system or through welfare programs. Overall, Husak finishes his piece by stating, “I claim that consequences may play an important role in deciding whether a particular deserved punishment should actually be inflicted(p. 459).

While Husak has a milder argument than Bergelson, both authors agree that the criminal justice system needs reform. The prison population is too high and punishments are too harsh.

Bibliography:

Bergelson, V. (2017). Does Fault Matter? Criminal Law and Philosophy, 12(3), 375–392. doi:10.1007/s11572–017–9432-y

Husak, D. N. (1992). Why Punish the Deserving? Noûs, 26(4), 447–464. doi:10.2307/2216023