Is the Group Responsible for the Individual's Crime?

New York Times, USA
February 8, 2004


Thee Pakistani Army not long ago gave tribal elders near the Afghan border a choice: either turn over 72 men wanted for sheltering Al Qaeda members, or soldiers would demolish houses in their town.

Holding a group responsible for the actions of its members is not a new idea.

Consider the baseball pitcher who, in retaliation for a bean ball thrown at one of his teammates, throws at the next batter he faces. Or the shareholders held financially accountable - in the form of a falling stock price - for the bad acts of a company employee. Or the grandmother evicted from public housing, under a 2002 Supreme Court decision, because her grandson sold drugs from their apartment.

In each case, people were threatened or punished not for their own actions but for their failure to control the actions of others. Recent legal scholarship defends this approach.

"Collective sanctions are at least arguably compatible with the demands of morality across a broad range of cases," Daryl J. Levinson wrote in the Stanford Law Review last November. "Group members might be punished not because they are deemed collectively responsible for wrongdoing but simply because they are in an advantageous position to identify, monitor and control responsible individuals, and can be motivated by the threat of sanctions to do so."

Saul Levmore, the dean of the University of Chicago's law school, also endorses collective sanctions.

"I sort of like them as a utilitarian tool," he said.

The Pakistani Army's tactics were not dissimilar, he added, to other sorts of burdens imposed by governments.

"The threat of destroying houses - while I don't know if it's a good policy - if it works then maybe we ought to be impressed by it," he said. "It's kind of a tax."

Others accept the utility of such sanctions but question their morality.

"It's possible to say that tribes are supposed to help the government," said George P. Fletcher, a law professor at Columbia. "It doesn't follow that you can threaten mass destruction as a method of coercing the tribe. It doesn't follow from collective guilt that you can impose collective punishment."

The main objection to collective sanctions put forward by legal scholars and philosophers is that moral responsibility should rest with the individual, not the family, tribe or nation.

But those who defend such sanctions say that there is often little difference, in terms of responsibility, between someone who acts wrongfully- commits a crime, say - and a person around him who fails to stop the crime, warn others about it or report it afterward.

"It's not so obvious to me that the people who bear the burden of many of these punishments are truly innocent," Professor Levinson, who teaches law at New York University, said in an interview.

Collective sanctions have ancient roots and are much discussed in the Bible. The destruction of Sodom and Gomorrah is one example. Blood feuds are another. But so, too, are modern international sanctions, like those imposed by the United Nations against Iraq in the 1990's. And war itself may be said to be a collective sanction.

In justifying the invasion of Afghanistan in 2001, for example, President Bush offered its leaders essentially the same choice given the Pakistani tribal elders.

"The Taliban will hand over the terrorists," a statement issued by the White House warned, "or they will share their fate."

The legal system, especially in cases involving only money, imposes liability on groups for the actions of individuals all the time. Corporate liability is the classic example. The case against Napster, the file-sharing service shut down by the courts for creating an environment that allowed copyright infringement, is another.

In 1944, the California Supreme Court ruled in favor of a victim of medical malpractice who contended that his shoulder injury was caused by a doctor or nurse during an appendectomy but who had no way of identifying the guilty party.

The court held all those present at the operation collectively liable, though presumably only one had caused the injury. In addition to ensuring that the injured party would be compensated, the justices suggested that their approach would make the innocent parties identify the guilty one.

Collective liability is occasionally imposed in criminal cases, too. Co-conspirators can be held liable for crimes committed by their allies in the conspiracy. Sometimes the failure to inform the authorities of a crime is characterized as the obstruction of justice.

There are, to be sure, moral objections to many group sanctions. Their defenders concede this but say the problem is not with the concept but with its application.

"The relevant question," Professor Levinson wrote, "is whether collective sanctions are morally problematic in a way that individual ones are not."

Collective sanctions, he said, are neither more nor less likely to be unfair or immoral than individual ones. Both are dependent on societal judgments about what actions deserve punishment, and how severely they should be penalized.

Whether they work is a separate question.

"There is not much evidence," Professor Fletcher writes in forthcoming article, "that the violent reprisals on the West Bank have had much of a deterrent impact on terrorists and suicide bombers."

On the other hand, in Pakistan the tribal elders turned over most of the men being sought.

If there is a problem with collective sanctions, Dean Levmore said, it is that they may be applied unfairly to the powerless or unpopular. The Pakistani Army, he suggested, should perhaps not be trusted with such a powerful weapon.

"If we recoil at the idea of collective responsibility," he said, "it's because we're afraid the village is out of the political mainstream. The government never says it's going to do this in downtown Kabul where the rich guys live."

Copyright 2004 The New York Times Company

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