Is There Anything Wrong with Collective Punishment?
In Eltham, London in 1993, five young white men murdered a young black man. The black man’s name was Stephen Lawrence. The white men’s names were Neil Acourt, James Acourt, Gary Dobson, David Norris, and Luke Knight. During the attack, the men shouted racist abuse at Lawrence and his friend Duwayne Brooks, and one assaulted Lawrence with a bat while another stabbed him in the neck with a ten-inch knife. This horrific hate crime resulted in an investigation that has dragged on for 25 years, with two of the men (Dobson and Norris) being found guilty of murder in 2012, after 18 years. As of April this year, the case was still open; Scotland Yard were waiting to see if new leads came forward in light of a BBC documentary.
Now, as far as the actual case goes, it might seem plausible that there’s only one murderer among the men. One of them stabbed Lawrence in the neck, which severed an artery, blood loss from which caused Lawrence’s death. The assault with a bat would have been grievous bodily harm (only) in the absence of the stabbing. The racist abuse from the remaining three men would have been hate speech (only) in the absence of either the assault or the stabbing. Aren’t there five men, culpable for different crimes, and punishable in proportion to those crimes? But this is to take an individualistic approach to the murder. It breaks it down into its component parts. It treats the relevant unit of agency as the human individual, and it asks of each individual, ‘what did he do?’ It considers what each caused, by way of his own actions, and what he intended to cause, or knew he would cause, by those actions.
There’s another way of looking at what those white men did in 1993, which involves taking a collectivist approach to the murder. We consider that they were something like a gang, and what this gang liked to do was racist hate crime. Indeed, two of the group’s members were later arrested for a racially motivated attack on an off-duty police officer. Each of the five members of the gang (although perhaps there were more; we don’t know) was obviously invested enough in his membership to go along with the gang’s action on this particular occasion. There are many different theories of what it takes to be a ‘collective agent’, that is, a group that persists over time and is able to make decisions and act on them in roughly the same way that individuals can make decisions and act on them. The gang will probably count as a collective agent on some of these accounts and not on others. But suppose that on at least one of the accounts, they do.
In that case, the gang murdered Stephen Lawrence, the gang is culpable for the murder of Stephen Lawrence, and the gang should be punished for its crime. We can still make sense of the different contributions made by members of the gang, but in this case we see the group itself as ‘controlling for’ those contributions. There was a group goal, something like ‘inflicting random violence on black people’ (perhaps ‘black men’ in particular; again we don’t know), and in order to accomplish that goal, the group had to delegate certain actions to members. This might have been done in an explicit way (‘Dobson, you take the bat!’), or it might have been done in an implicit way (Norris conspicuously pocketing a knife, Dobson picking up a bat, one of the two signaling to the other three with a tilt of the head that it was time to hit the streets). Importantly, if one member hadn’t done one of the things that needed to be done, another would have taken his place. The fact of who ends up performing which actions is much more a matter of luck when there is an organized group than when there isn’t one. (Those who are interested in a group that isn’t organized in this kind of way should watch the BBC One film Common, which tells the story of an innocent young man caught up in a Joint Enterprise prosecution.)
But wouldn’t punishing the gang be a case of collective punishment, and isn’t collective punishment wrong? Grassroots groups like JENGbA (Joint Enterprise Not Guilty by Association, in the UK) have sprung up in protest against it. Indeed, doesn’t the Geneva Convention prohibit it? In fact it does not; its prohibition on punishments for offences that one has not personally committed does not apply outside of wartime. It’s clear that some kinds of things that people tend to refer to as ‘collective punishment’ are wrong, like punishing a family for what one of its parents has done, or a member of an ethnic group for what some of their number have done, or punishing all those who subscribe to an ideology for what a single adherent has done. But others may not be wrong, may indeed be right, and be better than individualistic punishment.
A collectivist approach gives a different answer to an individualist approach when it comes to both culpability and punishment, and it can give a better answer in some cases where there are ‘culpability gaps’. A culpability gap arises when what members do together ‘adds up’ to something worse than what they each did alone. (Imagine that each member of the gang had assaulted Lawrence in a way that alone would have amounted to grievous bodily harm and only together causes his death). An individualist can try to give the same verdict as the collectivist, but only at the cost of declaring it so bad to be involved in an assault like that, that it deserves punishment of the same magnitude as for a murder. At least some people will want to resist this claim, thinking that badness doesn’t ‘max out’ like that. So we should be open to thinking more about collective punishment, at least for groups that count as collective agents.
This post was based on the longer argument made in:
Lawford-Smith, Holly. “What’s Wrong With Collective Punishment?, Proceedings of the Aristotelian Society 3/CXVIII (2017-8).
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