Is the Group Responsible for the Individual's Crime?
New York Times, USA
February 8, 2004
By ADAM LIPTAK
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
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
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
"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
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