Ethics in Practice

Affirmative Action

privileged to feel so entitled to their privileges that they often fail to see them as privileges at all. In such a setting, it is more than a little ironic that the beneficiaries of affirmative action programs designed to counteract the effect of institutional discrimination are now expected to wear the hair-shirt of "stigma."

Many who complain about the preferential treatment they believe affirmative action accords to women and minorities in academia assume that everyone other than its beneficiaries is admitted purely as a result of merit. Yet, paradoxically, policies that favor relatives of alumni, and children of faculty members or donors to the university, have not created a storm of legal or social controversy, or even been objected to. Perhaps this is because such policies tend to benefit predominantly White middle-class individuals. Our point is not simply to claim, however, that people who accept preferential policies that benefit middleclass Whites are often outraged by "preferences" rooted in affirmative action policies. Our point is in fact a much stronger one that hinges on the profound differences between affirmative action and these other policies. Policies that favor children of alumni or donors are policies that may serve some useful goals for a particular institution, but they are genuinely "favors" or "preferences" with respect to the individuals admitted, in that such policies are in no way intended to equalize the opportunities of those thus admitted. We therefore insist on a conceptual distinction between affirmative action and policies that are genuinely tantamount to bestowing preferences.

Our point, however, is not to endorse a "purely meritocratic society" as the ideal society, but rather to highlight the reality that many existing institutional structures not only fail to function as pure meritocracies, but also serve to systematically disadvantage whole groups of people including working-class people, women, and people of color. To those strongly committed to traditional meritocratic ideals, we suggest that when close attention is paid to the systematically disadvantaging effects of many institutional procedures, they may have reason to see affirmative action policies as conducive to their ideal rather than as deviations from it.

Conclusion

The intellectual confusion surrounding affirmative action transcends ideological categories. Critics and supporters, of all political stripes, have underestimated the significance of these policies, collaborated in equating affirmative action with "preferential treatment," and permitted important assumptions about how institutions function, to lie unchallenged. We argue that affirmative action policies do not involve preferential treatment but should rather be understood as attempts to promote fairness, equality and full citizenship by affording members of marginalized groups a fair chance to enter significant social institutions.

The fact that formal legal equality seems commonplace and obviously justified to many today, should not obscure how recently formal equality has been a reality for many nor the struggles it took to make it a reality. More importantly, we should not imagine that the achievement of formal legal equality erased the consequences of centuries of inequality, making the promise of equality and full citizenship an immediate reality for those previously excluded. The institutional consequences of such historically group-based exclusions in significant domains of occupational and social life still remain. Class, race, and gender, for example, continue to deprive people of the opportunities to participate in numerous forms of association and work that are crucial to the development of talents and capabilities that enable people to contribute meaningfully to, and benefit from, the collective possibilities of national life.

Only since the latter part of the nineteenth century and the early decades of the twentieth century have some democratic political communities, such as the United States, sought to embrace the members of certain marginalized groups they had once excluded from the rights and privileges of citizenship. Only in the latter part of the twentieth century has there dawned the recognition that laws and policies that promote formal equality do not necessarily ensure substantive equality or genuine equal opportunity for all citizens to participate in all spheres of American life. In this respect, affirmative action

policies are a significant historic achievement, for they constitute an attempt to transform our legacy of unequal treatment with respect to certain marginalized groups of Americans. They symbolize our political commitment to ensuring substantive participation in all domains oflife for various groups of our diverse citizenry. Thus, we believe that affirmative action programs warrant a much more favorable evaluation, both as an historic achievement and in terms of their positive effects within contemporary American institutions, than they are usually accorded.

References

Derrick A. Bell, Jr., "Bakke, Minority Admissions and the Usual Price of Racial Remedies," 67 q. L. Rev. 3, 13 (1979).

Lawrence A. Blum. "Opportunity and Equality of Opportunity," Public Affairs Quarterly (1988).

Leslie Bennets, "Carnegie Study Finds Status, Not Brains, Makes a Child's Future," in Racism and Sexism: An Integrated Study, ed. Paula Rothenberg (1988), pp. 54, 55.

Robert B1auner, Black Lives, White Lives: Three Decades of Race Relations (1989).

Bernard R. Boxhill, "The Morality of Preferential Hiring," Philosophy and Public Affairs 7, (1978): 246-68.

Stephen L. Carter, Reflections ~f"an Affirmative Action Baky (1991).

Affirmative Action as Equalizing Opportunity

James Crouse and Dale Trusheim, The Case Against the SAT (1988).

Ronald Dworkin, "Why Bakke Has No Case," in

Today's Moral Problems, ed. Richard Wasserstrom (1985), pp. 138, 145-6.

Gertrude Ezorsky, Racism and Justice: The Case jar Affirmative Action (1991), p. 72.

Luke Charles Harris, "Affirmative Action and the White Backlash: Notes from a Child Apartheid," in Picturing Us: African American Identity in Photography, ed. Deborah Willis (1994).

Luke Charles Harris and Uma Narayan, "Affirmative Action and the Myth of Preferential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate," Harvard BlackLetter Law Journal 1111 (1994).

R. M. Kantor and B. A. Stein, "Making a Life at the Bottom," in Life in Organizations, Workplaces as People Experience Them (1976), pp. 176--90.

Rudolf A. Pyatt, Jr., "Significant Job Studies," Washington Post, April 30, 1985, at DI-D2 (cited in Tom Beauchamp, "Goals and Q!Iotas in Hiring and Promotion," in Ethical Theory and Business, ed. Tom Beauchamp and Norman E. Borire (1993), p. 384).

Margery Austin Turner et aI., Opportunities Denied, Opportunities Diminished: Racial Discrimination in Hiring (1991), pp. 91-9.

Rosser Phyllis, Sex Bias in College Admissions Tests: Why Women Lose Out (2nd edn., 1987).

Shelby Steele, The Content of our Character: A New Vision of Race in America (1990).

Public opinion polls suggest that people in the western world are increasingly worried about crime. In the United States the public thinks crime is out of control, and that it is out of control because the state has not punished criminals as often or as severely as it should. Thus, for many people, deciding what to do about crime is not a minor technical problem criminologists or the police should solve. It is a practical problem with momentous consequences. However, it is also imperative that we be responsible citizens. We should not let fear lead us to embrace immoral policies. Harming another person without compelling reasons is wrong, and criminal punishment most assuredly harms the person punished. Therefore, before we blindly embrace a "get tough" policy toward criminals, we should be confident that our system is morally justified. That is, (1) we must determine the circumstances under which the state can justifiably deprive someone of her life or liberty, and (2) we must decide what the morally appropriate punishment would be.

Historically there have been three dominant theories of punishment: deterrence, retribution, and rehabilitation. The deterrence theorist holds that the overriding reason to punish someone is to deter future crime. Thus, the deterrence theory is primarily forward looking: it is concerned about what will happen in the future, not what has happened in the past.

In contrast, the retributive theory is backward looking: it emphasizes not the deterrence of

future crimes, but punishment for past crimes. Punishing people for their crimes may deter future crimes. However, if it does deter, that is an unexpected benefit of retributive punishment, not its justification.

Finally, the rehabilitative theory, like the deterrence theory, is forward looking. However, unlike the deterrence theory, its primary aim is not to prevent future crime, but to rehabilitate criminals so that they can return to society as responsible and productive citizens. Of course, rehabilitated criminals are less likely to commit further crimes. Nonetheless, although that may be a desirable consequence of rehabilitation, it is not its purpose.

All three theories often lead to the same practical conclusions. Normally they would agree about whom we should punish, and about how severely we should punish them. For instance, severely punishing an armed robber may be, from the retributivist standpoint, exactly what the criminal deserves, and, for the deterrence theorist, the action most likely to prevent future crime. Moreover, if we carry out the punishment correctly, we might also expect that the criminal would be rehabilitated.

It would be a mistake, however, to infer that since these theories often offer the same practical advice, they are really the same theory dressed up differently. Despite their similarItIes, they will sometimes disagree over whether, when, and how we should punish someone. The severity of punishment required

Punishment

to deter a criminal (and others) is, I suspect, often greater (and other times less) than what we might, on retributive grounds, think the criminal deserves. Perhaps the person has committed a monstrous crime (torture), yet we know that this criminal and others would probably be deterred by only a few months in prison. Or, conversely, someone may have committed an insignificant crime (jaywalking), which we could deter only by a severe punishment (chopping off the offender's legs).

Moreover, even when these theorists do agree about whom we should punish (and how severely we should punish them), they will disagree about why we should punish them. The difference in rationale is likely to lead to important, though perhaps barely perceptible, differences in punishment. Even if both retributive and deterrence theorists conclude that we should send a child molester to prison for twenty years, we will be likely to communicate something different to the criminal (and to others) if we think we are giving the criminal what he deserves, or if we think we are deterring potential child molesters.

It is illuminating to note the striking parallels between these theories of punishment and the consequentialist and deontological ethical theories. Consequentialist theories are forward looking; deontological theories tend to be backward looking. Even when both tell us to refrain from lying, to feed our starving neighbors, or to care for our ailing parents, their reasons for so acting invariably differ. We tend to think different ethical theories give different practical advice. Sometimes they do, sometimes they don't. What they invariably do is direct us to attend to different features of an action, or to evaluate those features differently. They disagree about which features of an action are morally relevant. Likewise, the principal difference between deterrence and retributive theories is not necessarily that they disagree about whom we should punish, or how we should punish them, but rather why we should punish them. Put differently, these theories identify different features of action that we should consider.

Rachels advocates a backward-looking stance toward punishment. He argues that the key to

our ordinary moral understanding is that we should give people what they deserve, and that what people deserve is based on their freely chosen actions. If you work hard, you deserve to get that promotion. If you perform well in school, you deserve good grades. Conversely, if you are a slacker, you do not deserve either a promotion or good grades. This premium on individual responsibility undergirds the retributive theory of punishment. It may also undergird one of Levin's objections to AFFIRMATIVE ACTION, namely, that white males may deserve the jobs these programs have distributed to blacks and women.

Murphy thinks Rachels accurately describe the current aims of punishment. However, he thinks Rachels overlooks a crucial element of morally legitimate punishment: repentance. Punishment should aim to improve criminals morally. That is, we should have a system that makes it increasingly likely that criminals will come to regret their actions and seek to transform themselves - with the aid of the state - into productive and morally responsible citizens. Of course, criminals who repent would be unlikely, upon release, to commit future crimes. However, that is not the aim of punishment, but a fortunate consequence.

Repentance is possible, however, only if the criminal understands that she has harmed the community, feels sorry for what she has done, and wishes to re-establish a relationship with that community. Unfortunately, many people in our society, and especially those most likely to commit crimes, do not see themselves as part of the larger community. Hence, they are unlikely to repent. From that we should not conclude, however, that this is not the appropriate aim of punishment. Instead, we should see this as compelling evidence why we should transform our society, why we should create a community that embraces all our citizens.

Murphy notes that there is a conflict between the aims of repentance and the current trend toward harsh punishment. Harsh punishments rarely improve criminals. Instead, they make criminals resentful. They are subsequently less likely to repent. After all, why should they want to re-establish a relationship with the community that hurt them? Of course, since many

criminals do not feel part of the community, harsh punishments may be required to deter crime. If so, we can see a disturbing flaw in our society. If criminals wanted to be part of the larger community, then merely removing them from that community and placing them in penitentiaries would be a sufficiently severe punishment to deter them from future crime. Pasquerella echoes many of Murphy's worries about the trend toward harsh punishments. She argues that we cannot justify getting tough with criminals, either on deterrence or retributive grounds. After all, most people we incarcerate did not freely choose to be criminals, at least not in any strong sense. Thus, saying that criminals deserve harsh punishment is inappropriate.

The last two essays in this section move from a general discussion of punishment to a contentious debate about one form of punishment: the death penalty. Pojman argues that (at least certain) murderers deserve death - that it is the only appropriate response to their heinous crimes. He also claims that we have both empirical and armchair evidence that the death penalty deters murder. Even if one doubts this evidence, it is better to risk being wrong by using the death penalty (and needlessly killing some murderers) than to be wrong by not using it (and failing to save the lives of innocent people who would be their victims). Hence, we should have and use the death penalty.

Reiman agrees that in principle the death penalty seems to be an appropriate response for especially heinous murderers. However, the death penalty, at least in our world, is unjustified. For although it might be appropriate to put such people to death, it is not inappropriate to give them a less severe punishment, especially if, as he argues, it is unnecessary as a means of

Punishment

deterring other potential murderers. Moreover, were the state to refrain from using the death penalty - in the same way and for the same reason that they refrain from statesanctioned torture - it could lessen our tolerance for cruelty, and thus advance human civilization. Finally, we should not use the death penalty because it is applied arbitrarily and discriminatorily.

The contrast here is illuminating. For although these authors seem to agree about some very basic moral principles, they end up giving completely different evaluations of the practice. This shows that what often matters in moral debate is not merely what principles one embraces, but the way in which she interprets and applies them. Moreover, it reveals, once again, the role that empirical evidence plays in many moral debates, for instance, the role in plays in LaFollette's discussion of "Gun Control" (PATERNALISM AND RISK) and Pogge's discussion of world hunger.

Further Reading

Duff, A. 1986: Trials and Punishments. Cambridge: Cambridge University Press.

Gorr, M. and Harwood, S. (eds.) 1995: Crime and Punishment. Boston: Jones and Bartlett.

Gross, H. 1979: Theory o/Criminal Punishment. New York: Oxford University Press.

Hart, H. 1968: Punishment and Responsibility. New York: Oxford University Press.

Hondrerich, T. 1984: Punishment: The Supposed Justification. New York: Penguin.

Morris, H. 1981: "A Paternalistic Theory of Punishment." American Philosophical {htarter/y.

Murphy, J (ed.) 1995: Punishment and Rehabilitation

(3rd edn.). Belmont, CA: Wadsworth Press.

James Rachels

When someone who delights in annoying and vexing peace-loving folk receives at last a right good beating, it is certainly an ill, but everyone approves of it and considers it as good in itself, even if nothing further results from it.

Immanuel Kant, Critique of Practical Reason (1788)1

Retributivism - the idea that wrongdoers should be "paid back" for their wicked deeds - fits naturally with many people's feelings. They find it deeply satisfying when murderers and rapists "get what they have coming," and they are infuriated when villains "get away with it." But others dismiss these feelings as primitive and unenlightened. Sometimes the complaint takes a religious form. The desire for revenge, it is said, should be resisted by those who believe in Christian charity. After all, Jesus himselfrejected the rule of "an eye for an eye,,,2 and St Paul underscored the point, saying that we should not "return evil for evil" but we should "overcome evil with good.,,3 To those who adopt this way of thinking, whether on secular or religious grounds, vengeance cannot be an acceptable motive for action.

This objection is, for the most part, misguided. The idea that wrongdoers should be "paid back" for their wickedness is not merely a demand for primitive vengeance. It is part of a moral view with a subtle and complicated struc-

ture, that can be supported by a surprisingly strong array of arguments. The key idea is that people deserve to be treated in the same way that they voluntarily choose to treat others. If this were only a view about punishment, it would not be very compelling. But the idea that people should be treated according to their deserts is a central component of our general moral understanding. It has applications in many areas of life. Retributivism is just the application of this idea to the special case of punishment.

In what follows we will begin by asking what it means to treat people as they deserve. What does the practice of "treating people as they deserve" involve? We can describe this practice without making any judgment about whether it is a good thing. Then we will consider, as a separate matter, the normative question: Should we treat people as they deserve? Are there any compelling reasons in favor of such a practice? Finally, we will turn to the special case of punishment.

Treating People as They Deserve

Desert and past actions

What people deserve always depends on what they have done in the past. The familiar lament, "What have I done to deserve this?" is not just

an idle remark; when desert is at issue, it asks exactly the right question. Consider this case:

The two candidates for promotion. The owner of a small business must decide which of two employees to promote. The first is a man who has been a loyal and hard-working member of the staff for many years. He has frequently taken on extra work without complaint, and in the company's early days, when its future was in doubt, he would put in overtime without demanding extra pay. His efforts are one reason that the company survived and prospered. The other candidate is a man who has always done the least he could get by with, avoiding extra duties and quitting early whenever he could. We may call them Worker and Slacker. Which should the owner promote?

Clearly, Worker deserves the promotion. He has earned it and Slacker has not.

Deserving the promotion is not the same as needing it or wanting it. Both Worker and Slacker might benefit from the promotion; perhaps both could use the extra money and status it would bring. But this has nothing to do with desert. Although Slacker might benefit just as much from being promoted, he does not have the same claim to it as Worker because he has not earned it in the same way.

Nor is the question of desert the same as the question of who would perform better in the new position. Obviously there is reason to think Worker would do better, because he has shown himself to be more diligent. But again, that is not the basis of Worker's claim. Even

promotion may be just the prod he needs - Worker would still have an independent claim on the promotion, based simply on his past performance.

Does anything other than past performance affect what a person deserves? Sometimes it is assumed that people deserve things because of their superior native endowments. If Slacker is naturally smarter or more talented than Worker, it might be suggested that this makes him deserving of the promotion. This sort of idea was

Punishment and Desert

once commonplace, but it is no longer very popular among those who systematically study ethics. It has fallen into disrepute since the publication of John Rawls's A Theory of Justice. Rawls writes that:

Perhaps some will think that the person with greater natural endowments deserves those assets and the superior character that made their development possible. Because he is more worthy in this sense, he deserves the greater advantages that he could achieve with them. This view, however, is surely incorrect. It seems to be one of the fixed points of our considered judgments that no one deserves his place in the distribution of native endowments, any more than one deserves one's initial starting place in society.4

Rawls refers to "our considered judgments," but there is something more here than an appeal to our beliefs. There is also an implicit argument, namely that native endowments are not deserved because no one does anything to deserve them: they are the result of a "natural lottery" over which we have no control. If you are naturally smarter or more talented than other people, you are just luckier; and you do not deserve better merely on that account. This fits well with the idea that people deserve things because and only because of their past actions.

What else might plausibly be thought to provide a basis for desert? It has sometimes been suggested that achievements are pertinent. It may be argued that Slacker could deserve the promotion, despite Worker's greater effort, if Slacker had succeeded in contributing more to the company. (Maybe Slacker's puny efforts had a big payoff.) But achievements are only the products of native endowments combined with work - often with a good bit of luck thrown in - and if one cannot deserve things because of one's native endowments, neither can one deserve things because of the achievements that those endowments make possible. To see what someone deserves we have to separate the two components (native endowments and work) and identify the contribution made by each. The maximally deserving man or woman is not simply the one who achieves the most, but the one who achieves the