Parricide and Desert

Fascinating profile  in the New York Times Magazine about a man, Greg Ousley, who killed both of his parents 1993 when he was 14 years old.  He was tried as an adult and sentenced to 60 years in prison.  Since then, he has been a model inmate and graduated magna cum laude from Indiana State correspondance program.  

One of the many desert-related aspects of the story is this:  Under Indiana law, Ousley can petition for an early release based upon evidence that he is completely rehabilitated.  The prosecutor agreed to allow the process to move forward "provided that none of the victims’ next of kin — meaning Greg’s two sisters and five aunts and uncles — objected."   So in 2009, Ousley had a a chance to get out of jail at 30 years of age.  (Otherwise, he wouldn't be eligible for parole until 2019.)  All of the parents' next of kin agreed to the release except for one aunt, his mother's sister. So the prosecutor denied the appeal. Ousley says he doesn't blame her at all, he can understand it, and his only hope is that he can change her mind over the next couple of years.  

I can't think of a single retributive or desert-based theory that can accomodate this kind of practice, yet it seems to be fairly widespread.  Any thoughts or relevant theories/works that I might not be aware of?

Comments

[Justin Capes]

Question: which practice strikes you as being at odds with retributivist principles?

[tomkow]

This non-desert,non-consequentialist account *could* have such upshots http://tomkow.typepad.com/tomkowcom/2012/07/a-few-short-steps-to-the-gallows.html"

[V. Alan White]

This appeal to relatives seems to work off two moral principles that might relate to retributivism: (1) a recognition of the primacy of special obligation relationships in determining what constitutes just retribution allied with (2) the legitimacy of subjective rather than objective standards to determine (1) probably based on broader promotion of autonomy as a high-level moral consideration. That's all I got.

[David Duffy]

Perhaps

Fletcher GP. The Place of Victims in the Theory of Retribution. Buffalo Criminal Law Review
Vol. 3, No. 1 (April 1999), pp. 51-63

and subsequent papers.

Ryan (2012)

http://www.houstonlawreview.org/wp-content/uploads/2012/04/2-Ryan.pdf

has that much US law involves

"limiting retributivism," which uses the tenets of ordinary retributivism to determine the appropriate endpoints on an acceptable range of punishment and uses consequentialist theories to determine the particular punishment within that range.

Victim impact (here on the relatives I guess) can be either consequentialist or
egalitarian retributivism (victim vindication).

[Justin Caouette]

Most of the "Balancing Act Retributivists" or, 'BAR theorists' as I've heard them called, can accommodate the practice, or so I think (most Kantians fall in this sort of camp).

Since Ousley committed such a serious crime it has upset the 'scale of justice' so much that he hasn't 'balanced the scales', so to speak, by simply behaving while in prison and getting a degree. And, for these types of theorists, punishment involves inflicting a pain or deprivation similar to that which the perpetrator of a crime inflicts on his victim. By ending the lives of his parents while they were so young (their age could play a part in the calculus) most retributivists would be hard-pressed to agree with you that there is no justification for continued incarceration. He took away 80 years (statistically speaking) and only served 16.

Since retributivists (especially BAR theorists) attempt a justification that links punishment to moral wrongdoing,then their focus is thus on the intrinsic wrongness of a particular crime, and, since Ousley's crime was so bad, or so they would argue, it merits more punishment than the 16 years he has served.

(For the record, I'm not advocating for this sort of the position, just trying to answer some of the questions you posed).

[Tamler Sommers]

Thanks everyone--very helpful!

Justin 1, the practice I'm referring to is allowing the victims' next of kin to partially determine the sentence.

Tomkow, I read your post, very cool new approach. How does your model accommodate cases (like this one) where the wishes of the victims themselves are unknown, and/or when the wishes of the victims are different?

Alan, how would this type of practice promote greater autonomy?

David, thanks. I know the Fletcher paper but not this one. Quick question regarding limiting retributivism: in this case, the reasoning behind the sentence decision within the range allowed by retributivism doesn't seem to be consequentialist. How does that model incorporate 'victim vindication' (as you say it)? That seems more related to retribution.

Justin 2, I would think that Kant's theory is a prime example of one that's inconsistent with the practice of allowing the victims' relatives to partially determine the deserved sentence. What if the Aunt had agreed with the other next of kin? Ousley would have received his early release based on that? How could a BAR countenance such different sentences for the same crime?

[Justin Capes]

Tamler,

It seems to me that whether the practice you identify is inconsistent with desert or retributivist theories depends on what you count as a desert-based theory. Consider, for instance, a view that says criminals deserve to be punished in proportion to their crimes, but this is only one (very important) consideration among many that goes into determining whether and how long to punish. Would you count that sort of theory as desert-based? If so, it doesn't strike me as obviously at odds with the practice you identify.

[tomkow]

Tamler,

Good question. The core of my view is that when punish we are keeping a promise. A promise the victim-to-be was entitled to ask for and we are obliged to keep. We need not appeal to desert or utility to justify punishing. If we don't know what the victim would have wanted-- if the promise were forgotten or never asked for, that justification goes away.

All of that is in the state of nature. In a governed society we will have surrendered our right to retaliate to the state for all sorts of good reasons. If that government is well ordered we would hope that the schedule of punishments would be generally well known and could be assumed to approximate the wishes of all its citizens (= all potential victims).

But I think it is one of the merits of this approach that, because it roots punishment in sentiment, it predicts we will feel conflicted in all the ways we do feel when confronting cases like the one in question.

What would you want done to your child if they murdered you? Almost impossible to contemplate and any theory that suggests the answer should be easy is thereby refuted.

My *feeling* is that such cases should be dealt with in the same way as that of a parent who kills his or her child: they should be locked up until we know that they have recovered their sanity and we will only know that they have done that when they hang themselves in their cell. The kid referenced in the story isn't there yet.

But that is just sentiment talking. My account of punishment is neutral about what sentiments you should have, it only argues for how and why those sentiments count.

[David Duffy]

More the reverse I think. The early release option is a consequentalist modifier within the retributivist range of punishments, but here is trumped.

Not knowing much about this area, I found the potted review of the history and issues in

http://georgetownlawjournal.org/files/pdf/96-3/Logan.PDF

interesting, in that VIE was, to some extent, forced upon the US legal system by social pressures and the advantages it gave prosecutors. In this particular case, there might be social outrage if the relatives complained about leniency.

[V. Alan White]

Tamler, my remarks were obviously too compressed and cryptic--my apologies. I didn't mean that the practice would *promote* autonomy, but that the practice was consistent with *an already posited high value placed on autonomy* in determining the place of family in meansuring appropriate retribution. The autonomy choices of relatives would be given priority in establishing the bounds of retributive punishment to some degree(of imprisonment at least), and their subjective standards of such assessments would be given free reign within some more reasonable ojective bounds. So someone convicted of murder shouldn't be released after a only a year--objective standards would fix the earliest time of possible parole and would override victim's families wishes otherwise (say the victim's family was exceedingly forgiving and petitioned release after one year--it would not be granted because it would undermine reasonable-person standards for minimal retribution). But after such a minimal period, parole would be possible based on the more subjectively assessed autonomous choices of the family. Whether there need be unanimity or just a plurality of family agreement would depend on how important individual autonomous choices were weighed in determining appropriate retribution in light of the special relationships with the victim.

I want to emphasize I don't approve of any of this; I'm just trying to think through a reasonable account of the case you cite.

[Tamler Sommers]

Justin, yes, I'd count that as a desert-based theory. But then what's the principle for allowing the aunt to veto the early release. It doesn't seem like a consequentialist one. The aunt's satisfaction at having Ousley serve a longer sentence is almost certainly outweighed by the benefits of bring him back into society. It seems more plausible that the principle is retributive, which is why I thought it should be built into a retributive/desert based theory.

Tomkow, couldn't you also regard the next of kin as victims of this crime? Apparently, the aunt was very close to her sister and so Ousley took away her sister and close friend. Ousley himself says he doesn't blame her for vetoing the early release on that basis. And certainly there a plenty of cases with multiple victims--how does your theory handle instances when their desires regarding punishment conflict?

David, thanks--I'll check that out. You write: "The early release option is a consequentalist modifier within the retributivist range of punishments, but here is trumped."

Ok, but isn't what trumps it also retributive?

Alan, that actually sounds pretty reasonable. Why don't you approve?

[V. Alan White]

Tamler, thanks. Actually I should give some credit to Robert Veatch here for inspiration--I had just finished teaching a short summer course on his Basics of Bioethics and found his reliance on objective/subjective standards of assessing autonomous choices in the health care setting helpful for analyzing your case. As for my hesitance for my proffered account, I have deep misgivings about the very concept of retribution, and that's why I can't say I approve it (though it does seem to fit your case well).

[tomkow]

Tamler,

Good point. I agree you can regard the next of kin as owed compensation and that is an argument for punishing if that would compensate them. Note though that, on my account, our obligation to punish on behalf of the victim does not go away just because the next of kin decide to forgive and forget.

There can be competing and conflicting obligations to punish in the same way that there can be competing and conflicting obligations to compensate. But such conflicts are not irresoluble in principle or practice.