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Should we punish crimes from the distant past?

Former Auschwitz SS officer Oskar Gröning is currently being tried as an accessory to murder for his role as an administrator in the extermination camp, and the trial has stirred up a lot of debate. One strand of the debate addresses the question whether Gröning was complicit in the extermination of prisoners, and whether he was culpable for this complicity. (Roger Crisp wrote a fascinating post on this a couple of weeks back.) But another strand – and the strand that I want to look at here – has addressed the question whether former Nazi war criminals should be tried and punished for deeds in their distant past. Eva Mozes Kor, an Auschwitz survivor and witness in Gröning’s trial has claimed that he shouldn’t be tried, though he should use his knowledge to help fight holocaust denial.

Let’s suppose that Gröning was indeed a culpable accomplice to murder. Should he then be punished? More generally, should serious crimes from decades go be punished? My intuition is that they should, but reflecting on why I have found it is not straightforward to defend this view.

It is often thought that one of the purposes of criminal punishment is to prevent the offender from re-offending, whether through rehabilitation, incapacitation or what is known as specific deterrence – deterrence of the punished individual. However when the crime was committed decades ago, the prevention of re-offending is unlikely to be a relevant consideration. It is unusual in such cases that the perpetrators retain a disposition to offend, and even if they do, they have often lost the ability to do so due to age and infirmity.

Another purpose sometimes ascribed to criminal justice is the deterrence of offending by others – so-called general deterrence. But again, it’s unlikely that this goal will be advanced much by punishing decades-old crimes: there is little evidence for a deterrent effect from the prospect of prompt punishment, and we might expect that the prospect of distant future punishment will have an even weaker deterrent effect.

What about retributivist views of criminal justice? On these views, criminal punishment serves to mete out deserved suffering on the offender. At first sight, such views might seem able to justify punishment of crimes from the distant past. It is not obvious that culpability diminishes over time, so if offenders were deserving of suffering soon after committing the crime, perhaps they remain deserving forever after, or at least, until such time as the suffering has been inflicted.

There is a complication, however. It’s not clear that an octogenarian is really the same person as his youthful self. At least, it is not clear that he is the same person in the sense that matters for morality. The psychological connections between the old and the young man person may, if enough time has elapsed, been rather weak. Moreover, the person may have undergone substantial changes in fundamental personality traits. Perhaps it could be argued that punishing an 80 year old for the misdeeds of his 20-year-old self is not so different from punishing a child for the misdeeds of her parents. This would involve inflicting undeserved suffering, since the child is not the one culpable for the misdeeds.

This is, in fact, potentially a problem regardless what one sees as the purpose of punishment. Suppose the purpose of punishment is not to inflict deserved suffering, but is rather to deter others, to prevent re-offending, or to express condemnation, say. Still, there are surely constraints on how these purposes can be realised, and one constraint may be that the punishment should not inflict more suffering than the offender deserves. Clearly, punishing a child for the misdeeds of her parents would violate that constraint.

Should we then give up on the punishment of decades-old crimes? Or at least, should we give up on it if we accept the views about ‘changing selves’ that I have just been entertaining? I’m not sure that we should, for there is a different way of thinking about these cases.

When one commits a crime, on plausibly acquires a moral duty to rectify that crime by providing some sort of redress to the victim (see, Victor Tadros’ excellent The Ends of Harm for a detailed defence of this view). Submitting to punishment may be one way to provide this sort of redress. But suppose an offender has not been punished and has not otherwise rectified his wrongs. The ongoing failure of the offender to rectify his wrongs plausibly itself qualifies as a wrong committed against those same victims. So suppose Jack commits a crime against Jill at the age of 20. At 21, he has still done nothing to rectify this wrong, and this counts as a further wrong against Jill. At 22, he has rectified neither the initial wrong, nor the wrong of failure of rectification committed at the age of 21, and this amounts to a further wrong.

If we think of things this way, then the 80 year old who perpetrated a crime at 20 has not been free of wrongdoing since then, but has in fact being guilty of ongoing wrongdoing, and is continuing to perpetrate a wrong. And this is true even if the 80 year old is, as far as what matters morally, not the same person as the 20 year old. Perhaps, if the 80 year old is not the same person as the 20 year old he no longer owes rectification for the crimes of the 20 year old, but he does owe rectification for the crimes of his 79 year-old self, who owes rectification for the crimes of his 78-year-old self and so on.

If we accept this picture, then there is a straightforward retributive justification for punishment of the 80 year-old. Even if he no longer deserves suffering for his crimes as a 20-year-old, he may well deserve suffering for his recent and ongoing wrongdoing. Similarly, on this picture there may also be a future-oriented justification for punishment. Perhaps in punishing the 80-year-old, we would be effectively forcing him to rectify his past wrongs, and thus putting an end to the ongoing wrongdoing.

How this all bears on the case of Oskar Gröning depends on whether we think he has, since the end of the war, rectified his wrongs. But assuming his initial wrong was a grave one it seems to me very doubtful that he has. For though he has to a limited extent used his story to undermine holocaust denial, it seems to me that much more would be required to rectify a serious wrong.

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6 Comment on this post

  1. Dear Mr. Douglas,

    if I understand your point correctly, the wrong that the octogenerian Oskas Gröning is still culpable of is the following: he hasn’t rectified his wrongs. My question is: what are those wrongs of his he hasn’t rectified yet? As you indicate in the third paragraph from the bottom, it can’t be what he did during the Holocaust. At least if we accept the story about an 80-year-old not being the same person as his youthful self. Instead the fact that he didn’t rectify his crimes when he was 79 (78, etc.) years old seems to be the wrong in question. I think that raises some potentially problematic issues:

    1) Wrong kind of reasons: If we think that Oskas Gröning should be punished (I do), we usually think that he should be punished because of what he did during the Holocaust, not because of some things he did (or in that case: didn’t do) when he was 79 (78, etc.) years old and that are only very indirectly related to the Holocaust.

    2) If we accept the story about changing selves, then the ultimate source of all the wrongs that the 80-year-old (79, 78, etc.) Gröning did is something another person did, namely the 20-year-old Gröning. That seems odd, to say the least. Let’s assume for a moment that somebody never stays the same person for more than two years. If that would be the case, what are the wrongs that the 80-year-old Gröning committed? Well, one might answer, the 80-year-old Gröning failed to rectify the wrong of the 79-year-old Gröning of not rectifying the wrong of the 78-year-old Gröning of… well, of what? Yes, the 78-year-old Gröning failed to rectify the wrongs of the 77-year-old Gröning, but from the perspective of the 80-year-old Gröning those were wrongs a different person committed. The crimes of the 78-year-old Gröning are crimes only insofar as they relate to things another person, from the viewpoint of the 80-year-old Gröning, did. I’m not quite sure what that implies for your argument, but the fact that the ultimate source of all the wrongs of the 80-year-old Gröning was a wrong committed by another person seems troubling at least.

    3) At the very end of your blog post you say that Gröning committed “a serious wrong”. The things Gröning did during the Holocaust can definitely be called a serious wrong. But since that is no longer the wrong we talk about, matters are far less clear. If we, once again, assume that nobody stays the same person for more than two years, the 80-year-old Gröning committed the wrong of not rectifying his lack of rectification as a 79-year-old and the wrong of not rectifying his lack of rectification as a 78-year-old. Even if we ignore everything said under 2), it’s not clear to me that this constitutes a wrong worthy of criminal punishment. Certainly it seems a much lesser wrong than aiding and abetting genocide and mass murder. Maybe you’re willing to embrace this conclusion. The fact that I’m not leads back to my first point.

    Best regards,

    Lukas Tank

  2. I think you miss one important reason for the prosecution of any crime: that the ritual of prosecution restates society’s disapproval of the crime itself, beyond any consideration of the outcome for any individual perpetrator.
    The importance of the prosecution is that in 2015, we still think mass industrial genocide is wrong, though if you merely start a war in which millions die, you’ll probably get away with it.

  3. Thanks Lukas and Douglas.

    Lukas, I agree that my explanation for the permissibility of punishing Groening has the intuitively troubling implications you mention: he is not being punished for what his younger self did in Auschwitz, and the initial source of his wrongs is the wrongdoing of someone who is, at least as far as what matters for morality, a different person. However, it seems to me that if we accept the story about personal identity over time that I’m entertaining, my explanation is the best we can do as far as justifying his punishment goes. I think if we accept this kind of story, it’s not possible to avoid morally counter-intuitive implications, perhaps in part because our intuitions are founded on the assumption that the older Groening *is* the same person as his younger self. (I’ll be happy if you can come up with an explanation with fewer counter-intuitive implications though!)

    Douglas, the sort of view you mentioned is what I was alluding to when I mentioned that the purpose of punishment might be to ‘express condemnation’, though I didn’t spell this out. It seems to me that the problem with appealing to this sort of justification is that there are constraints on when it is permissible to express condemnation for a crime by punishing someone. One case in which it seems impermissible to do so is when the punishment is undeserved (i.e. is disproportionately severe relative to the offender’s culpability). Suppose we could somehow express condemnation for X’s complicity in genocide by punishing Y, who had nothing to do with the genocide. It would surely be impermissible to do this; Y doesn’t deserve that punishment. It seems to me that, similarly, if the older Groening is not the same person as his younger self, then punishing the Groening-the-older for what Groening-the-younger did would be inflicting undeserved punishment (unless, that is, we accept the story that I offered at the end). Perhaps, though, you were only suggesting that Groening should be prosecuted for what his younger self did, not that he should be punished. In that case, I think I agree that we might be able to justify this on the sort of basis you suggest, and without invoking my story about the rectification of past wrongs.

    1. Thanks for your reply, Tom.

      I’m not able to give you a better explanation of why Gröning should be punished, but I think the best shot would be to tell a story about personal identity that, while acknowledging that Gröning-the-older isn’t the same person as Gröning-the-younger, has something to say about the relations between the two Grönings and their moral implications. However, I know much too little about theories of personal identity and therefore I leave it at that.

      Let me try to sketch a more robust version of my third point, though: You said that maybe your “explanation is the best we can do as far as justifying his punishment goes.” But does your explanation justify punishing Gröning? That’s not clear to me. It justifies saying that Gröning-the-older committed a wrong, maybe multiple wrongs, and that maybe we should blame him for that. But punishment? There are some open questions that, I think, need to be answered in order for your explanation to justify punishing Gröning. For example, is the magnitude of the wrongs Gröning-the-older committed somehow sensitive to the magnitude of the wrong Gröning-the-younger committed? If it isn’t, I’m even more skeptical when it comes to the justificatory power of your explanation. But even if it is, and Gröning-the-older’s wrong of not rectifiying his lack of rectification is somehow graver because the initial wrong of Gröning-the-younger was very grave, I’m not sure it is grave enough to justify punishment. The ongoing lack of rectification is, now that 70 years have passed, only very loosely related to the initial, and very grave, wrong Gröning-the-younger committed. (He is guilty of not rectifying his lack of rectification regarding his lack of rectification regarding…) Is that enough to justify punishment? Because the case is so unusual, I lack clear intuitions regarding this question – but I tend to answer “No”.

  4. Thanks for this post, Tom — I think you give an interesting rationale for punishment despite the identity issues.

    Echoing other comments about punishment as an expression of societal condemnation, I’d add that we shouldn’t overlook the context in which our decisions to prosecute or not-prosecute unfold. Specifically, through prosecution and criminal punishment our societies have developed a kind of language for expressing that we take certain kinds of harms morally seriously. I don’t think this is a particularly good language for such expression — fueled as it is in most cases by incarceration, a dread engine of human misery if ever there was one — but we have to accept that it exists and it endows every prosecutorial decision we make with larger significance. I guess what I’m saying is that, even though I agree with everyone who’s said it’s almost entirely unproductive to prosecute or punish Gröning-the-older, I also fear it is impossible to decline to prosecute him without signaling to society, “well, of all the unproductive prosecutions we could have decided to forbear from, it is the accessory to genocide we’re letting off, because we don’t really have a lot of moral concern over the harm he participated in.”

    Nobody intends to send that message of course, but against a backdrop where we prosecute and punish people all the time despite our rehabilitative / restorative / deterrent / incapacitative rationales completely failing us, the omission manages to communicate something nobody intends it to.

    All of which is to say, I think this is a no-win situation; if we do go after him, we are at best vastly over-punishing Gröning-the-older for failing to take some steps to rectify the wrongs of Gröning-the-younger, and if we don’t go after him, our omission has an uncomfortable and unwanted signaling consequence.

  5. Another issue to take into account is social signalling. By punishing someone we are sending a signal to others regarding what is reprehensible conduct. Now if we have rather tough sanctions for crimes that are in comparison minor, then it seems we might want to have some tough sanctions on crimes associated with major harm, even if somewhat indirectly, in order to convey sufficient disapproval – for example we might want very tough sanctions to fall on virulently racist police, or corrupt politicians, or those responsible for unwarranted military actions, because the sanctions are then part of addressing the large losses resulting from for example racism and imperialism.

    More simply, there is probably some utility to being able to convey some social message equivalent to ‘X activity is very much worse than some other activity that we commonly take to be very bad, like murder’ – do not do it and resist those who do vociferously.

    To avoid having to have horrific sanctions (torture etc.) for really bad conduct (say ordering the bombing of Hiroshima), then sanctions for ordinary run of the mill things (like murder) probably need to be much reduced to have the proper signalling effect.

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