Monday, December 24, 2012

Victim Impact Statements and Restorative Justice in a Retributivist World

Victim Impact Statements and Restorative Justice in a Retributivist World

This is my term paper for a seminar on punishment and retribution.  The seminar was the highlight of my MA program.  Before reading, it will probably be helpful to go over the key concepts:

Key Concepts:
Victim Impact Statements (VIS):  In a criminal trial,  most states  permit victims to make a statement of how the crime has affected them.  The idea behind VIS is to recognize the non-material harms that victims experience and to allow the victim to voice their opinion about sentencing. VIS can take place during the trial phase, and in the last 20 years there's been a movement toward allowing them during the sentencing phase.  Most of my arguments relate to VIS during the sentencing phase. 

There is opposition to VIS for several reasons.  Here are the two main ones: (a) The emotional nature of the testimony can sway judge and jury(in states that have juries at sentencing) toward an otherwise harsher sentence; (b) the offender could not have known that the victim/victim's family would have reacted a certain way (i.e., there's a tremendous spectrum of psychological reactions to crimes--the offender should not be punished for what he could not have reasonable expected as a consequence of his actions).  We can reasonable foresee the physical and material consequences of our actions, but not the psychological.

Retributive Justice:  This is the philosophical (or in most--instinctual) position that if someone does something wrong, they deserve to punished to the extent that they are blameworthy.  'Blameworthy' includes the notions of intent and harm.

Restorative Justice:  The philosophical position that:(1) Crime does harm and justice should focus on repairing that harm (rather than on punishing offenders). 
(2) The people most affected by the crime should be able to participate in its resolution. 
(3) The responsibility of the government is to maintain order and the responsibility of the community is to maintain peace. 

Crime does not simply appear out of nowhere.  Especially when it is pervasive in a society, it is not random—human beings have reasons for their actions. Crime is a symptom. It is a symptom of inadequacy of education and of health. It is a symptom of meagerness of care and concern for one another. In Conflicts as Property, Christie argues crime is a symptom of too few conflicts. We need more conflicts but of a specific kind—conflicts over one's honour. When people cease to care about how they are perceived by others in the community it means “there is less honour to respect” and “we simply mean less to each other” (p. 6). Where honour crimes are taken seriously, people matter to each other.

Christie's vision of a system of justice is revolutionary and—for some—an inspiring ideal. His idea is a reaction to the modern depersonalized Western legal system where conflicts are actively avoided and their resolution is contracted out. The cost is the loss of community and important human relationships. Christie's model strongly advocates empowerment of all stakeholders in a conflict—victim, offender, and community--to contribute to a resolution. However, for those who find inspiration in his lofty vision it is not long before the practical considerations bring us crashing back to earth. It is a daunting task to even begin figuring out how to establish a restorative justice in the face of long entrenched antithetical ideas and practices. Regardless of how advocates suggest a transition, the consensus of the practically-minded is evolution over revolution.

It is tempting to see victim impact statements (VIS) as an incremental step in the direction of restorative justice. Victims not only have the opportunity to express to the offender and to the court the psychological impact of the crime, but in many cases may express their feelings toward the offender and add their sentencing preferences. Consistent with restorative justice, the victim is partially empowered and participates in the outcome of the case. No one is claiming that this is full restorative justice, but it is interesting to consider whether VIS are a step towards restorative justice, neutral, or a detriment to it.

I will argue that despite the initial appearance of VIS being consistent with restorative justice, they are in fact an impediment to it; however, proponents of restorative justice ought not to reject VIS. Instead they should adopt a pluralist stance toward systems of justice and seek to develop and promote complimentary restorative practices that counter-balance the disadvantages of VIS while preserving their system-relative benefits. To support my thesis I first discuss, in the context of restorative justice, the purported benefits of VIS; second I examine some of the ways in which VIS are antithetical to restorative justice and why; third, I evaluate restorative alternatives to VIS; fourth, I discuss why restorative justice proponents should not outright oppose VIS; and finally I propose a pluralist approach to justice that seeks to offset the disadvantages of VIS while preserving their advantages.

Quick Overview of the Principles of Restorative Justice
Before proceeding it will be helpful to give a brief overview of restorative justice to provide a framework within which to evaluate the issue of VIS. Restorative justice can be described from two complimentary points of view: principles and values. The principles are:

(1) Crime does harm and justice should focus on repairing that harm (rather than on punishing offenders).
(2) The people most affected by the crime should be able to participate in its resolution.
(3) The responsibility of the government is to maintain order and the responsibility of the community is to maintain peace. (

The central values of restorative justice are:

(1) Peaceful social life: Not just the absence of conflict, but pursuit of harmony. When there is conflict it is dealt with in such a way that will restore and strengthen the peace of the community. The operational norms for conflict that support (1) are resolution of both the conflict and its aftermath, and protection of the emotional and physical safety of all parties.
(2) Respect: Regarding all people as worthy of particular consideration and attention as individuals. In conflicts the operational norms are inclusion and empowerment.
(3) Solidarity: Support and nurturing of feelings of agreement and connectedness among all community members through shared interests, sympathies, purposes and responsibilities.
(4) Active responsibility: Taking responsibility for ones' actions rather than being held accountable by others. In conflict, the operational norms that support (4) are collaboration and making amends. (

With the framework of restorative values and principles in place we can proceed to evaluate VIS in the context of restorative justice.

Benefits of Victim Impact Statements
The general purpose of introducing VIS was to promote victim involvement in criminal court decision-making and to improve victim satisfaction with the judicial process (Davis & Smith, 1994). Specifically, VIS allow victims to express to the offender and to the court their attitude toward the offender and their desires regarding sentencing (Sommers, forthcoming). Furthermore, VIS allow the specific emotional harms and suffering victims have endured to be meaningfully expressed and accounted for in the offender's culpability.1

This inclusion of particular harms marks the legal system's recognition that the harms were sustained by a particular person, as opposed to only recognizing general harms that apply to a class of crimes. This change is important because it demonstrates the legal system's recognition that the harms were suffered not by society in general, and not by some abstract average victim, but by a particular person. Therefore, that particular victim should have his harms recognized and have a say in sentencing outcomes. In the context of Christie's restorative justice, with VIS we might say that the law also recognizes the victim's partial ownership of the conflict.

Victim Impact Statements and Restorative Justice
To understand why VIS might not be consistent with the values and objectives of restorative justice it is helpful to include some general comments to provide a framework for the more specific criticisms. Recall that restorative justice is predicated on the idea that those closest to the conflict--i.e., the victim and the offender--should be able to participate in its resolution.

General Comments
Imagine yourself as a victim in a courtroom. The first thing you will notice is the physical layout of the environment. Is this an environment conducive to the type of dialogue between victim and offender that might be favourable to a conflict's resolution? It hardly seems possible. The court room is designed to facilitate dialogue between the judge, the prosecution, and the defence attorney. While it is true that there is a place for the victim to observe the trial, give evidence when appropriate, and share the emotional harms she has suffered, her role is largely ceremonial.

The dialogue is by design carried out between the lawyers, the judge, and the jury. The courtroom setting is antithetical to restorative justice because it is designed such that those who are only impersonally related to the conflict have a central role in the conflict rather than what restorative justice advocates—that those closest to the conflict have ownership and engage in the harm's resolution and restoration. Under the physical and procedural conditions of the courtroom, the victims restorative interests are likely not served by her passive observance, occasional interjection of testimony, and expression of sorrow in conformity with the norms and procedures of the court (i.e., via VIS).

Victim Impact Statements and Restorative Justice
There is more to be said about the role of courtroom norms that impede restorative justice. Part of the restorative process is for the victim to meaningfully express to the offender the pains and sorrows she has suffered at his hand. On its face, VIS seem to provide a good platform for this expression. But put yourself in the place of a rape victim or a murder victim's family. Is the cool formal setting the ideal setting to express personal and traumatic emotions? Is this an environment in which people will feel comfortable with such expressions of affect?

One might reply that despite the drawbacks to the courtroom environment as a venue for emotional expression, it is still fair in that it gives all victims an equal opportunity to express themselves. But the courtroom setting also presupposes that all victims will benefit equally from the opportunity to express themselves. Even if there are individuals comfortable with expressing their deepest most painful emotions in front of a room full of strangers, it is hardly plausible that every victim will feel this ease.

Furthermore, not everyone is gifted with the ability for eloquent public speech—much less comfortable with it. If we are truly committed to creating an opportunity for victims to convey intense private emotions, we cannot assume a one-size-fits-all approach to venues, environments, and procedures. The environment and procedure ought to be tailored to the individual, not the other way around. Part of our goal is to help restore the victim, and that partly requires we also consider victim input regarding the environment in which they would best achieve this end. Procedural equality is not equality of outcome2.

There is a further problem with VIS and the environment in which they take place; this has to do with the role that is implicitly and explicitly assigned to the victim. That is to say, within the courtroom context the victim is always regarded as “the victim”--that is his normative role and reading a VIS in this environment serves to further reenforce this role. How can we expect him to transcend this role and heal if the norms of the environment preclude it. In order for the victim to heal, he must eventually shed his identity of “victim”. The courtroom imposes this identity—for better or for worse, but mostly for worse.

What is needed for healing is an environment where roles are fluid, where institutional and social expectation don't restrict or impose a way of being (Arragio & Williams, 2003). The victim expressing his suffering is not on its own objectively detrimental to restorative justice; however reading a VIS in the courtroom environment only serves to reinforce the victim identity which is in the long-run hostile to the victims full restoration. Creating an environment that allows for fluid identities is also important for achieving a fruitful dialogue between offender and victim. I will elaborate on this point later in the paper.

Another aspect of VIS that are inimical to restorative justice is the purpose they serve. As I have said, prima facie they seem to support victim empowerment through involvement. But involvement in what? The involvement is confined to providing information relevant to culpability and desires regarding the offender's punishment. This, however, is only a small portion of what restorative justice seeks to achieve. What is missing is involvement and empowerment in the overarching goal of restorative justice: the restoration of all three stakeholders—the victim, the offender, and the community.

Punishment as an endpoint without restoration in the restorative justice paradigm is not full justice, it is but one step along the way. VIS do not empower to victim to restore the harm or to engage in dialogue with the offender or to help the victim understand the offender's motives. VIS ultimately only serve to establish culpability for the purpose of determining severity of punishment. This aspect of VIS in turn only perpetuates the status quo retributive framework. Only punishing offenders, and perhaps partially restoring victims, is a far too narrow goal in terms of restoration.

VIS also purport to restore dignity and self-respect to the victim. But dignity and self-respect come from genuine empowerment. To see why VIS can't achieve this in the courtroom consider school-yard justice as an analogy to a criminal justice court. Suppose a child is being picked on by a bully. To resolve the problem he hires another bigger bully to hold the first bully down while he kicks him. While there are problems with the analogy, it will serve to make the point: Is there any dignity in what the bullied child did? He may feel better about himself, but where is the dignity in having others fight his battles for him?

In a criminal trial the offender's fate is unilaterally imposed by the state in conjunction with the victim. The imbalance of power is tremendous. Where is the dialogue? Where is the restoration of victim and offender? Even if the victim is merciful and pardons the offender—it is a top down approach. It likely had little to do will a genuine understanding of each others' particulars and much to do with the victim's default disposition. Restorative justice requires dialogue, exchange of reasons, feelings, treatment of the other as a particular, and all of these require at least the semblance of equality3 while working toward a solution.

Victim Impact Statements from the Offender's Point of View within Restorative Justice
Many of the problems with VIS from the victim's point of view also apply to the offender's point of view. Let's return to the courtroom environment. Any semblance of a restorative outcome requires dialogue and the ability for genuine expression. How likely is this to occur in the courtroom when a VIS is being read? This is no dialogue. From the point of view of the offender, this is a public shaming at best and a violent diatribe at worst. Some might argue that for the offender to understand the harms he has perpetrated that such an act is required and permissible. But not if our objective is restoration. For restoration to occur, the offender must be able to feel like he is a member of the community and empowered to make amends. Public shamings do little to engender this feeling.

Let me elaborate on this point because there is a possible objection to what I have said. It is consistent with the restorative tradition that the victim be able to freely express his emotions regardless of their forgiving or hateful nature. This I do not deny. My argument concerns the venue and the manner in which the process manifests. The conflict is between the the victim and the offender. These same emotions can be expressed to the offender without an audience without compromising the message. If our goal is restoration of all stakeholders, including the offender, it would seem that he would be more willing and able to open himself and seriously consider the emotions and message of the victim if he isn't being subjected to public opprobrium. Again, if our objectives go beyond the simple establishment of culpability and punishment, voluntary earnest offender participation is required. This may not always occur, but restorative justice is committed to cultivating its preconditions.

Like the victim, in the courtroom the offender is also cast in a role which inhibits restoration. The environment assigns to him one role and one role only. Under such constraints how can we reasonably expect the offender to allow himself to feel and express genuine emotion, and a cultivate a desire to make good. The entire room sees him as the adversary. Restoration requires that he be able to take on another role. The courtroom, especially during the reading of VIS is not a venue conducive to the offender considering points of view outside of his own. With the state and the victim aligned against him, it is only natural that offenders may take to defensive posturing and retreat within their shell to preserve whatever shred of personal dignity they may have left.

A further problem with the unilateral increase in victim's power and the resulting potential defensive posturing of the offender is a decrease in the willingness of both parties to engage in genuine restorative action. When the asymmetry of power is perceived to be too great, there is a question about the genuineness of any desire to engage in restorative actions. The offender's motives to engage in restorative procedures become suspect because they may only arise out of his fear of a harsher sentence being imposed in the absence of participation. To achieve the goals of restorative justice, empowerment of both victim and offender are vital—VIS shift the balance of power such that offender empowerment is critically harmed.

I have said that an ideal justice must be felt and justifiable to all shareholders. When we introduce VIS it becomes even more difficult for a judgment to meet these standards. This is not necessarily because of a particular outcome--evidence suggests that victim input on sentencing has a negligible effect on sentence severity (Erez, 1999). Rather it has everything to do with the procedures by which judgements come about.

Restorative justice is as much about a result as it is about a process. It is the unilateral nature of VIS that are contrary to restorative justice. When one party is perceived to have a disproportionate influence over the process and the other party has little or none, justifying the result in terms of offender-relative reasons becomes more difficult—to say nothing of it being felt. Restorative justice is about both parties contributing to a restorative outcome within the context of community norms. The unilateral nature of VIS and their perceived influence on outcome take us farther from this ideal.

Systemic Reasons for which Victim Impact Statements Are Incompatible with Restorative Justice
As I have said, it is tempting to see VIS as a step in the direction of restorative justice. And it is true that the apparent victim empowerment engendered by VIS do seem to capture some elements of restorative justice. But this ignores the fact that restorative justice is not a unilateral or even a bilateral endeavour—it is trilateral. The implication is that any unilateral increase in the power of one stakeholder will likely increases the disparity in relative power to the others. Because of the divergent interests, the nature of restorative justice is such that you cannot simply tinker with one variable without affecting the equilibrium of the whole.

Despite my misgiving about VIS in the context of restorative justice, I don't think VIS in themselves are intrinsically antithetical to restorative justice (although I think there are better means of attaining the same ends). The main problem with VIS have to do with the prevailing norms of the criminal justice system and the way VIS were unilaterally introduced into the justice system without a corresponding adjustment in the offender's sphere.

For instance, it is clear that VIS do increase the possibility of victim restoration but at the cost of total restoration. But if at the same time VIS had been introduced there had been a corresponding increase in resources for offenders to—for example—reintegrate into society, then we might say there is a net gain in restorative justice. But it is the nature of any system with divergent interests that an increase in one stakeholder's power will change the equilibrium—and not necessarily as a net gain to the whole.

Restorative Solutions?
If I have correctly assessed the (in)compatibility of VIS with the goals and values of restorative justice, the answer to the first question I posed at the beginning of the paper is simple: No, VIS are not a step in the direction of restorative justice. QED.

But not so fast. Criticizing is the easy part—if this weren't true, political pundits would be out a job. A more difficult task is when we consider what might replace VIS that would both maintain the advantages of VIS but also be a step towards establishing a more restorative model within our current justice system. That is, what sort of procedure simultaneously (a) allows victims the ability to meaningfully express the harms and suffering they have experienced as a result of the crime, (b) harmonizes with our commitment to victim empowerment and active involvement in their own conflicts, (c) at the same time cultivates and protects restorative principles and values for offenders, and (d) doesn't require the implausible wholesale abandonment of our current judicial system? Simultaneously accomplishing these goals is a tall order indeed. Perhaps, a first step is to set reasonable expectations.

The restorative tradition offers a cornucopia of alternative venues and modalities for victims to express their suffering, pain, and anger—so long as it is not in the courtroom, and especially not during sentencing (Arragio & Williams, 2003). Many of the reasons for this aversion to the courtroom I have already outlined above. As an alternative t o VIS, advocates of the restorative tradition propose “community-situated victim-offender mediation settings” which emphasize a healing and peacemaking process (Pepinsky&Quinney, 1991), narrative therapy (Held, 1995), and critical discourse (Arrigo,
1999). From the restorative perspective, these modalities offer the best contexts within which victims can express their emotions without obstructing restorative justice. In other words, restoration-directed environments and procedures allow victims to engage in the activity that restorative proponents see as the most important benefit of VIS-- giving victims the opportunity to address their feelings of pain, anger, and resentment (Milovanovic, 1999), (Arragio & Williams, 2003).

Difficulties for Restorative Justice
But these restorative modalities fail to recognize other important advantages of VIS. For many victims, VIS engender a feeling of empowerment because they have a say and actively participate in the outcome of the trial. That is, their desires are taken into account—not just their “feelings”. To postpone the victim's expression of such desires until after the trial renders them meaningless. What good does it do the victim to express hypothetical sentencing desires? Where is the (perceived) empowerment4? Excluding sentencing desires from victims' input renders victim involvement largely ceremonial.

This isn't even the full story. Disregarding victim sentencing desires means we have “stolen” additional aspects of the conflict from the victim. In an increasing number of jurisdictions, pre-sentencing restorative options are being made available. If a case has gone to trial in one such jurisdictions, then almost by definition the victim has rejected their opportunity to engage in restorative justice5. This means that for whatever reason the victim is likely not interested in restorative types of processes. And since a central tenet of restorative justice is that engagement be voluntary, we must respect this choice.

A problem emerges. The victim doesn't want to engage in restorative processes, but we've taken VIS off the table. Is it desirable that the victim be given the hard choice between pre-trial restorative procedures or forfeiting his say in sentencing? As advocates for restorative justice we ought to consider carefully forcing a choice between engagement and reducing the victim's role to describing harm. Where is the empowerment? Where is the victim's ownership of the conflict?

A Way Forward: Justice Pluralism and Reframing VIS
Before I make my specific suggestions, I must express some general comments to build context. Broadly speaking, the nature of victim and offender roles in the current criminal judicial system is adversarial. It is such that a gain to victim rights entails a loss to the offender, and vice versa. As Christie points out, there is little incentive for restoration in the current paradigm. The conflicts are “owned” by the court professionals, not by the victim and offender. This incentivizes winning and losing-type motivations—not those of reconciliation and restoration.

With this in mind, proponents of restoration must ask whether it is even possible to incorporate any restorative-minded procedures incrementally into the current paradigm without upsetting the balance of power between victim and offender to which I referred earlier. While I think there are restorative-friendly innovations that can be introduced that concern the role of decision-makers, I'm very skeptical about innovations when it comes to expanding victim or offender power. My skepticism arises from the current adversarial normative roles of victim and offender, and the facts about who currently “owns” legal conflicts.

Within the context of these comments I will address the next issue of my paper: What should be the attitude of restorative justice proponents vis a vis VIS? My suggestion is that restorative justice proponents ought to cautiously endorse policies in the standard justice system that empower victims or offenders such as VIS. However, they should focus most of their efforts toward promoting and encouraging the development of parallel pre and post trial restorative options.

We have already acknowledge that VIS can in many ways be detrimental to restorative goals but removing VIS leaves little recourse to victims6 that do not wish to engage in restorative justice—be it pretrial or post-sentencing. One thing to consider is that the restorative criticisms of VIS assume a worst-case scenario in the courtroom (from both victim and offender points of view). I think this is overly pessimistic. While there is empirical evidence suggesting not all victims benefit from VIS (for a variety of reasons), there are also victims who find the process satisfying, empowering, and restorative (Erez, 1999, Cassell 2009. Cited p. 26 in Sommers forthcoming).

Within the context of the prevailing legal system, there are very good reasons to support VIS—although the environment may not always lead to restorative-friendly results. Restorative justice is not in the business of satisfying one party at the expense of others or of the whole. Perhaps the mistake is to view VIS through the lens of restorative justice—something akin to evaluating the norms of a foreign culture according to one's own cultural norms. Instead of judging the “cultural norms” of the traditional paradigm, what we ought to do instead is develop and promote restorative pathways that work in conjunction with the current legal system. VIS seem to be on the whole a good thing viewed within the normative context of the prevailing system.

The Fallacy of the Finality of VIS
Another thing to consider is that it is not as though the damage or ill effects of VIS to restorative justice can never be undone. Restorative justice is not a one-off affair, it's a process—and there is no reason to suppose there won't be ups and downs, with or without VIS. There is also no reason to suppose the negative effects of VIS will in all cases be greater than impasses in purely restorative cases. If restorative methods can ultimately recover from impasses in the latter kind of case, why should we suppose they are too weak for restoration in the former? (O! Ye of little faith!)

For cases that do go to trial, restorative advocates prefer that that the victim express himself after the trial (Arragio & Williams, 2003). While this may be preferable, there is no necessary reason to adopt a binary stance. The victim can express himself in court and gain the advantages of VIS, and restorative justice might suffer in the short-term. But as I've said, restorative justice is not a singular event like VIS—the door is still open for restorative procedures after a trial, regardless of what transpired earlier. And perhaps if a victim feels that having a say in his offender's sentence is a necessary precondition for his (i.e., the victim's) being restored, there is a compelling argument for its inclusion7. As proponents of restorative justice, perhaps we ought to direct our efforts at promoting and developing post-trial restorative modalities.

Guiding without Compromising Autonomy
Also, as proponents of restorative justice, we hope to avoid an adversarial trial to begin with. Where there are opportunities for restorative procedures we ought to consider ways to decrease the likelihood of cases going to trial in the first place. But this raises a paradox for restorative justice--for both pre- and post-trial modalities. How to you guide people toward restorative processes and at the same time maintain an ideological commitment to the engagement of both parties being voluntary? One possibility comes from empirical psychology. We know that whatever option is the default, that is what most people will adopt.8 In the context of the criminal justice system, instead of making engagement in restorative procedures opt in, we make them opt out. We preserve the voluntary nature of restorative justice, but will increase the probability that people will try restorative procedures before and after going to trial.

Reducing the Asymmetry
Up until now in this section, I've only discussed a non-binary approach from the victim's perspective which implies a cautious tolerance of VIS. But of course, from a restorative point of view, one of the primary objections to VIS is the effect is has on the offender's (in)ability to be restored. If our guiding value is restoration of the whole—that is, of all three stakeholders—how can we even begrudgingly endorse VIS? As I have said, the current adversarial paradigm is such that a gain in power by one stakeholder almost always entails a relative loss to the other—and a net loss to restoration.

I think if we distill many of the objections to VIS from the point of view of restoring the offender, one central theme emerges: The community is essentially saying to the offender “we value the victim's restoration more than yours”9. Sending this very message itself adds to the difficulties of restoring the offender. To the degree he is made to feel like an outsider, to that degree restoration and reintegration will be more difficult. So what is an advocate of restorative justice to do if we acknowledge the tangible good but also the bad that come from VIS? Perhaps we ought not to throw that baby out with the bath water.

What we ought to do is lobby for increased restorative resources for the offender to counter-balance the disequality in power that VIS bring. This is, of course, in addition to developing and pressing for post-sentencing restorative procedures as I have outlined above. The benefits of VIS to victims are fairly clear, but the harms are not irreversible provided there are post-sentencing victim-offender restoration procedures in place. In addition to these procedures proponents of restorative justice need to advocate for an increase in educational programs for offenders that will aid and encourage restoration and reintegration10.

It's not enough to simply criticize VIS. VIS are mostly contrary to restorative aims to the degree that there is an imbalance of restorative opportunities and resources between victim and offender. But the imbalance need not be resolved solely by removing the source of the imbalance. The disequilibrium can also be addressed by adding resources to the other side of the equation. Such a policy diminishes the volume of the community voice that says to the offender “we care about the victim's restoration more than yours” and moves toward replacing it with another message: “we also care about your restoration”.

A quick aside about the nature of programs for post-sentencing offenders. I think we ought to follow Christie's ideals on this matter. Restoration programs must presuppose that crime is often the product of unmet needs for social, educational, medical, religious resources (Christie, 1977). I would add one element to restorative programs—as far as possible they ought to be bottom up rather than top down. Whenever possible, rather than a group of experts or the court deciding what sorts of resources the offender requires, we should assume the offender knows best what he needs. Restorative programs should focus on providing resources for the offender to develop and follow his own path to restoration. The community and social workers ought to see themselves as facilitators rather than programmers. The emphases must be as much as possible directed toward cultivating personal active responsibility and empowerment.

Regarding the question, “Are VIS a step in the direction of restorative justice?”, the answer is “no”. However, it does not follow that advocates of restorative justice necessarily ought to oppose them. I argue we ought to take a pluralist approach to justice. The conventional criminal justice system and the restorative justice system should be view as two distinct cultures. It is difficult to import values and practices piecemeal from one into the other. VIS in the context of the culture of the conventional system are a net benefit but viewed through the restorative lens they are problematic. But these problems are not insoluble.

Advocates of restorative justice can develop and promote long-term restorative practices that compliment post-sentencing to offset the short-term disadvantages of VIS. To decrease the number of cases going to trial in the first place, advocates can takes advantage of the psychological bias to adopt the default practice and push for legislation that makes restorative practices 'opt out' instead of 'opt in'. Finally, rather than reject VIS out of hand because of its detrimental effects on restoration as a whole, proponents can work to restore balance within the conventional paradigm and work for greater offender-directed restorative resources and initiatives. In doing so, they raise the possibility of restoration by changing the community message to the offender from “we care about the victim's restoration” to “we also care about your restoration”.

As proponents of restorative justice we would prefer that all cases were handled within the restorative paradigm, but the practically-minded recognize the conventional structures are entrenched for now. So long as they are, our goal should be to adopt a pluralist approach that encourages restorative methods first and compliments the existing system in a way that compensates for its restorative shortcomings.

1. There is some empirical evidence showing that VIS don't achieve the goals they purport to (Davis & Smith, 1994), (Erez & Bienkowska, 1993). The purpose of my paper is not to challenge or support these conclusions in the context of conventional criminal trials, but it is important to note that recent literature has challenged assumptions about victim satisfaction with VIS. At this point in my paper, my objective is to evaluate the degree to which VIS can be seen as compatible with restorative justice.
2. Related to the problem of unequal weighting of VIS is the suggestion by some empirical evidence that the victim's race and/or social status play a role in the degree to which decision-makers are sympathetic to their statements (Phillips, 1997).
3In terms of respect. I.e., value #2: Respect: Regarding all people as worthy of particular consideration and attention as individuals.
4There is research suggesting that victim desires have a negligible impact on sentencing. If this is true, there is a separate question as to whether this illusion of empowerment is constructive or healthy.
5It's possible that the offender rejected the offer, but the data shows that offender willingness is greater than victim willingness to participate. Similarly, the case might have gone to trial because initial restorative efforts failed.
6I will consider what this means from the offender's point of view shortly.
7We might wonder why this hypothetical victim didn't engage in pre-trial restorative procedures if sentencing input is so important to him.
8See Gigerenzer, Gut Feeling. He give an comparison European and American organ donor rates. Countries in which organ donorship is opt is have rates of about 10-20% whereas opt out countries have 80-90% compliance rates. When countries switched from opt-in to opt-out, there was a corresponding shift in the rates.
9Whether this is the intent is an open question. My point is that from the point of view of the offender, this is how the experience of VIS is likely subjectively felt.
10Anecdotal evidence that resources are actually being taken away: I recently volunteered to teach in the Nevada prison system and was told their funding for post-GED education has been cut a few years ago.    

Friday, November 30, 2012

Mercy, Revenge, Victims' Rights, and Restorative Justice

Mercy, Revenge, Victims' Rights, and Restorative Justice

This is my proto-term paper for what has been a life-changing seminar I took this semester on retribution and punishment.  The paper needs to be 'academicized' (sources cited, address objections in the literature, given a half-coherent organizational structure, etc..) but I wanted to get my thoughts out first.  Also, probably for the first time in a long time, I actually stand behind what I'm writing.  I think what I'm saying is at least in the direction of truth...if there is such a thing.

A couple more notes before you read: I haven't fully developed a lot of the ideas.  They are a work in progress--hopefully to be fleshed out by the time I hand in the final paper!  Particularly messy is the section on Mercy vs Revenge.  It's a little scattered for now because as I wrote it I realized that the situation was more complex than I had originally anticipated (as usual in philosophy).  You're welcome skip over it.

Also, there is one section and one important objection I haven't written yet but if I include any more in this one post, it's unlikely to be read.

I want to begin with two simple unqualified ideas: (1) Justice must be felt and (2) mercy is preferable to revenge.  I will begin with the first.  What is Justice?  I don't think it can be defined.  It means different things to different people, and since Socrates there has not been any consensus on any one definition.  But I do know that justice must be felt.  Justice is not the rote application of rules, procedures, and sentencing guidelines.   We can imagine cases--nay, there are cases--where a judge applies all the procedure of justice perfectly, yet the majority of people agree that justice was not done.   Justice must be felt.

The obvious objection is that our emotions are fallible.  In fact, they are most likely to lead our judgments astray in cases where they are strongest.  The criminal law is a paradigm example since the overlap between law and morality is often close.  It is natural to have strong emotions where grave moral transgressions occur.  The response isn't simply attributable to a breach of the law.  Few people get emotional about transgressions of municipal by-laws; however, where the perceived moral law and positive law overlap, emotional reactions are heightened. 

So how to deal with the skeptic (and empirical psychology) who says, in cases where emotions run high, our capacity to reason is compromised?  We must begin with a general claim.  Essentially, the argument can be distilled to a genetic fallacy: this is the argument that since the source of our beliefs is unreliable or not "truth apt" we ought to dismiss the beliefs themselves.   Why is the argument against judgments based in emotion an instance of the genetic fallacy?

There are two reasons.  The first is that for the argument to be valid, it has to be shown that emotions reliably produce false beliefs at a rate greater than chance.  But this claim is too strong.  Surely emotion-based judgments also produce true beliefs.  If we accept this then we need to assess the validity of the belief, not based on its source but on its own merit.

The second is that we need to distinguish between knee-jerk and deliberative emotion-based judgments.  The critic is right to suggest that judgments made "in the heat of the moment" are often suspect.  But this is not the class of emotion-based judgments I'm referring to.  From the occurrence of a criminal act to the sentencing stage months or even years can pass.  During this intervening time, the victim and community will have enough time to deliberate fully on what type of punishment would constitute justice.

There is still an objection.  In the court room, when a victim or victim's family comes face to face with the offender, emotions will run high thereby reviving the 'clouded judgment' argument.  This is a fair objection, for it may be that after sentencing,, returning to their state of emotional equilibrium the victim will think otherwise of the unduly harsh punishment they called for.

There is a further objection still.  Supposing the victim is a particularly vengeful individual.  This is their nature and the only way they will feel that justice is done is if the offender receives an unduly harsh punishment.  If my argument is that justice must be felt by all, then my theory must allow unduly harsh punishment.

Justifiable reasons
But this is not the end of my theory.  We need something to counter-balance emotions when they are momentarily strong.  For, it may not be only the offender who demands unduly harsh justice, but also a powerful portion of the community.  Certainly, there must be some safeguard against the 'mob mentality'.  Here I want to bring in a theory of  reasons and justification.  I'm drawing on Scanlon, Parfit, and Lyons.  The idea is that judgments must not only be felt but justifiable with reasons to everyone in the community--victim and offender included.  That is to say, I must be able to justify a judgment to each party in terms that are relevant to them;  this will require I appeal to reasons.  Reasons are simply facts that count in favour of or against some action or judgment.

Another obvious problem emerges.  How do we reconcile situations where there are competing reasons for a judgment?  Suppose the victim wants the offender to receive 10 years in prison, the offender wants none, and the community thinks he deserves 7; how do we reconcile such a situation?  But we needn't suppose that just because there are 3 competing notions of a fair judgment that each group will not understand the reasons for the others' desire.  This is all that a theory of reasons requires.  Whether the judgment agrees with every particular interest's desire is not a likely outcome, so what we seek is an outcome for which each party will acknowledge the intelligibility of the cited reasons.  This is not such an unusual occurrence.  It often happens that we may not agree with a person's decision or act but we can acknowledge the validity of their reasons for doing it.

I believe everyone has on multiple occasions uttered phrases such as "I understand why you did that but I would have done otherwise."   The reasons need not be decisive--only acknowledged as valid.  When a party cannot understand the reason for a judgment, that judgment fails the test of justice.  An example would be merely appealing to an arbitrary rule.  Unless the rule itself can be justified by reasons intelligible to all stakeholders, adherence to the rule is not a reason that can be appealed to.

Whose Judgments Matter?
Up until now I've implicitly assumed that the judgments of 3 groups matter: the community, the victim( s), and the offender.  To defend this position, I will drawn on ideas from Christie's theory of restorative justice.  However, for the purposes of my paper, I am mostly concerned with defending the right of victims to express their sentencing desires at sentencing hearings--so I will emphasize this aspect.

Very briefly, I will first discuss the grounds for community involvement.  First, I will separate myself from Christie and argue that court should be presided over by a professional judge, not an ad hoc gathering of the community members.  I will defend this position later.  For now, it suffices to say that given practical considerations, a jury of peers and a democratically elected local judge is an imperfect but defensible way for a community's values to represented in court.

A community's judgment regarding punishment must be represented in court because the laws--in particular the criminal code--are an expression of community values.  A community desires a judgment to reaffirm to the criminal, itself, and other potential offenders what its values are.  If a judgment is not 'felt' to be just by the community is must not reflect its values. And certainly if sufficient reasons cannot be given to the community to accept the judgment, it also must not be just.   For these reasons, community input is necessary during sentencing.  The judge and the jury of peers are symbolic representations of the community.   There will of course be difficulties with defining community values in a heterogeneous and socio-economically stratified society, and I will briefly address these later.

The punishment must also be 'felt' and justifiable with reasons (that he views as sufficient) to the offender.  In ideal conditions the offender will feel guilt for his crime and will be emotionally susceptible to the requirements of justice beyond his personal interests.   We want to avoid punishments so harsh that the criminal feels they are unjust or unjustifiable.  This will make reintegration into society difficult because the values of society are not his values.  In non-ideal conditions it is doubtful the offender will 'feel' the sentence is just.  In such cases, the aspiration ought to be to find a punishment that is at least justifiable to the offender in a way such that he recognizes the validity of the justifying reasons.

My most important, and perhaps most controversial position is that victim input in sentencing is vital to substantive justice.  I will develop and defend this idea in more detail but for now I will say that it is the victim who is harmed; the victim who lives everyday with the negative consequences of the crime--not society.  The injury to society is usually either symbolic or inferential.  Removing the victim from the sentencing proceedings potentially robs him of any feeling of personal justice.

Before proceeding I want to repeat a prior qualification.  I'm not suggesting that what the victim wants is what happens.  No.  The victim has the opportunity to participate and express his desires;  express the reasons for which he wants a particular punishment; express what would repair his dignity, and make him feel whole and that justice was done.  Having the state mete out some punishment with which he has no relation does not satisfy any of these requirements for justice from the point of view of the victim.

All this said, the victim's desires for a particular sentence are only several of many reasons that must be weighed against those of the offender and the community.  Again, the ideal is not that everyone get exactly what they want but that justice is felt--which can partially be accomplished through participation--and that jugements be justified by reasons accepted as sufficient by all three stakeholder.

The Problems:
The objections to victim involvement in sentencing are not so easily brushed aside by appealing to emotions and sufficient reasons.  There are serious consequences to breaking with standard procedural justice where the victim has--if any--only a minimal role (in the form of victim impact statements) in sentencing.  To discuss these potential problems, I must return to an unqualified idea with which I opened the paper and which I have yet to develop:  mercy is preferable to revenge.

Before I begin to justify or qualify the positive assertion, I must lay out two important arguments against mercy and victim input that I'll have to deal with.  I must do this first, to give the context within which I formulate my argument for mercy and victims participation. The first is the argument from parity.  Consider two offenders, Bob and Jane, who are the same in all relevant respects.  Bob's victim was merciful so he received 2 years less for the same class of crime than Jane--whose victim wasn't merciful.  Intuitively this seems unjust.  Surely, justice requires that relevantly similar individuals committing the same class of crime get the same sentence.

The argument against mercy is that if we allow for offenders to receive less than what they deserve based on victim desires, then there seems to be no good reason to prohibit offenders getting more than they deserve.  If in sentencing we're going to take into account victim desires, why should we prefer deflation over inflation?  And on what grounds can we justify it?

The other problem is procedural: victim presence at a sentencing trial where they are giving an emotional accounting of all the harms--psychological, physical, and material--that they have suffered at the hand of the offender is sure to prejudice the judge and jury.

There's the further problem that some victims may be more articulate than others and so will have a greater impact on the judge and jury rendering the sentence closer to their desires than it would be for an inarticulate victim.  This also distorts 'treating like as like' from the point of view of the criminal who has a more articulate victim.

I will reply to  these substantial objections, but to do so I must qualify and defend my assertion that mercy is preferable to revenge.

Mercy vs Revenge
First I must qualify "for whom?".  A society.  A community.  On personal level, I do not purport to say that mercy is preferable to revenge any more than I would assert that intelligence is preferable to humour.  Humans have tendencies for both and the desirability of each varies for each and also from situation from situation.  But on a social level, I feel I am on firmer ground when I assert that mercy is preferable to revenge.  I will make two brief arguments one normative and one empirical.

Why might mercy be morally praiseworthy while revenge not?  I'll refrain from arguing that revenge has no moral value.  I'm agnostic on that issue: my only claim is a relative one--that relative to revenge, mercy is preferable.  On an individual level consider what is required to be merciful.  What does it take to turn the other cheek? To forgive your offender and ask that they be punished less than what they are judged to deserve?  Very often, this requires tremendous strength of will to act against what our anger tells us to do.  Overcoming anger, resentment, and the desire to 'get even' requires much of us.

Consider what is required of us to act vengefully or in retaliation.  Is there any effort involved?  Must we struggle internally with selfish desires and sympathy for another--even if underserving?

One might reply that internal struggle does not a virtuous action make.  Surely, the premeditating murderer or thief must wrestle with their conscience--and if it is lacking, then at least with their desire that they not be caught.  To risk great harm to oneself also requires internal struggle.

So, on what principled grounds can we distinguish a virtuous from a non-virtuous act if both can result from internal struggle?  The answer is that the merciful act is virtuous because it struggles to set aside self-interested desires in favour of other-directed desires.  In the case of no-virtuous acts, the direction is reversed: moral considerations give way to the selfish.

Nevertheless, we might agree that mercy is virtuous on an individual level but it does not necessarily follow that it is a good on a social level.  Its being an individual virtue is only one reason to count in its favour.

To show that mercy is a social good I will argue, on empirical grounds, that its opposite is bad for society.  In 'Better Angels of Our Nature' Steven Pinker posits that there has been a steady decline in homicides beginning with hunter-gatherer societies up to the present.  Part of his argument rests on the idea that as our values move away from those of 'honour societies', 'honour' killings disappear which impacts the homicide rate.  In fact, it is uncontroversial that honour societies have much higher murder rates.  The idea then, is that since honour killings are often revenge-based, revenge is empirically a less desirable value than mercy in a society if we value lower homicide rates.

There is a reply to this argument suggested by Christie and Sommers.  They argue that while it may be true that homicides rates are high in societies where revenge is important, other crimes significantly less than in low-honour crime societies.    There are a couple of different explanations for this.  One is that since the cost of retaliation for an offense in so great, there is a very strong deterrent effect.  Another plausible explanation is that since honour and mutual respect are so highly valued, minor crimes don't occur--people simply respect each other.  The reason why the homicide rate is high in such societies is that given the 2 previous explanations, the only crimes are major crimes.  There other historical arguments too (see Brandt and Cohen), but these will suffice.

It looks like the revenge proponent can present us with a choice: we can have a relatively high homicide rate and almost no other crimes or we can have lots of daily criminal activity and a low homicide rate.  The reply to this dilemma is to ask whether revenge as a value is a necessary condition for mutual respect.  I'm not sure this argument can be made.  There's a question of burden of proof here, furthermore there seem to be examples of low crime societies with low rates of honour killings.  I think the revenge proponent's position is weakened on this account.

The revenge proponent has one other argument which comes from social-psychology.  In a famous set of experiments designed to test what is the best strategy regarding cooperation and self-preservation it was shown that playing with an overly forgiving strategy was disadvantageous.  Also, depending on the strategies the other players used, different strategies were successful.  What is interesting is that in most simulations the successful strategy entailed forgiving twice before retaliating (note: the successful strategy depended on what strategies other players used so this was not the only winning strategy--but the argument will still work because the other winning strategies were more retaliatory).  This looks like a strong argument for forgiveness, but the revenge strategist can argue that without the eventual retaliation, the forgiveness strategy doesn't work.  Again, it seems like we have a stalemate. 

There is one more argument I will propose for why we ought to favour mercy over revenge.   It has to do with the offender.  Recidivism rates are very high.  We must ask ourselves why.  There are many complex socio-economic reasons, but relevant to revenge-mercy, I suggest there is reason that should lead us to favour mercy as a social value.

When a criminal is given what he perceives as an unduly harsh punishment he does not feel this is justice.  The reasons for his punishment, are incomprehensible to him.  The punishment essentially tells him his feelings don't matter.  His reasons don't matter.  How can he ever reenter a community that from his point of view is unjust and does not share his values of justice?  He is notpart of this community--by definition--and cannot be.  He is an outsider and not only is treated as such, but will behave as such.  It should not surprise any parents that people often act according to expectations.

Mercy shows the offender that, although you have transgressed our norms and have harmed particular individuals, you matter.  It's as simple as that.  Mercy communicates to an offender that his feelings matter to the community.  Offender-relevant reasons matter to the community: in fact, they are shared reasons.  So, he matters to the community.  It is only under such conditions that we can hope the offender can be reintegrated into the community after serving his punishment.  This is my argument for mercy.  Revenge prevents reintegrations and reenforces a division of the community.  If we value community, we must value mercy above revenge.

What do we conclude from here?  As a society we need to ask ourselves, what kind of world do we want to live in?  This is the great thing about being human.  Within a (very limited) scope we have the power to consciously shape our own social conditions.  Do we want a forgiving and merciful society or do we want a vengeful one?  I can't give any conclusive arguments, but I suggest the former because mercy gets us closer to what I think is a good society where we don't waste human lives by ignoring important causes of recidivism.

Reconciling Victim Involvement with Revenge and Mercy
There is a problem looming.  It seems some of what I've said contradicts.  I want a criminal justice system that is merciful and includes victim input in sentencing but I don't want revenge.  What if revenge is what the victim wants?  I've already responded by saying that the victims desires are only one set of reasons we ought to consider in sentencing, but this isn't all I'm asking for.  I also want mercy to be an important value.  How can I reconcile this while taking the victims desires seriously rather than symbolically?

Here is my proposal.  We do not procedurally restrict revenge desires by victims.  This would undercut the notion of justice for which I've argued.  Instead, we create conditions under which mercy is nurtured and reenforced.

I have two central proposals.  The first is that there be wide judicial discretion and the second is that victim-offender mediation be a first step in any sentencing procedure.  Both my claims rest upon one fundamental assumption:  that face to face human interaction allows both parties to see the other as a human being with emotions, desires, family, friends, interests, and problems, just like them.  By removing the distance between victim and offender, and community (via the judge and jury) and offender, harsh vengeful punishments will be less likely.

On Wide Judicial Discretion
Wide judicial discretion sits somewhere between the two extremes of rigid ordinal sentencing guidelines and village-community justice.  Christie argues for the latter, while I do not dismiss it philosophically, I suggest that practical considerations rule it out at this point.  While people might enjoy reality TV, the amount of time required (at this point in history) for a modern community to gather 'round, deliberate and pass judgment on every crime is out of reach.

The other possibility is rigid sentencing guidelines.  Before we evaluate this option I will repeat the values I wish to maintain in the theory of justice I'm presenting: (1) as much as possible, justice must be felt and justifiable to the general community, the victim, and the offender, (2) mercy is to be preferred over revenge.

The first objection to rigid sentencing guidelines is that they are drafted and passed in the legislature.  There are two problems with this.  The first is that the legislature cannot possibly anticipate all the relavent reasons, particular to an individual case, for which a certain judgement would be just.  Reasons are facts which count in favour or against some act or judgment.  It unlikely that the legislature could anticipate and incorporate into the scheduling matrix of punishments every future possible fact.  The reply to this might be that there are certain facts that we know to be relevant to all cases, and in the interest of parity, we need to apply the same criteria to each case.

We can reply in the following way:  first, is that there seems to be no principled ground for which to reject one class of facts over another.  The distinction seems arbitrary, and while for the most part a certain class of facts, say the offenders childhood, are irrelevant, there are some cases where this may be relevant.  Such things cannot be anticipated.  Also, if such facts--which are excluded from the legislated sentencing schedule--are not considered in sentencing where they are relevant, this undermines the possibility of justice being felt and that a reason can be given to justify the punishment.

Another reply is that the physical and emotional distance between the legislators and the victims makes it all to easy to draft harsh sentencing laws.  The distance prevents legislators from considering offenders as human beings.  Rather, they are merely criminals--not community members.  There is strong empirical evidence to support the idea that as states move away from judicial discretion in favour of legislated sentencing guidelines, the harshness of sentences increases.

The culmination is punishments that don't reflect the offenders' and significant portions of the community's feelings of justice and reasons of justification further ostracize subgroups and the offender, and make reintegration increasingly difficult.

Wide judicial discretion has several advantages over rigid sentencing guidelines.  The judge is able to take into account facts and thus reasons unique to a case.  He has available for his consideration the context of the crime.  This is vitally important information for a judgment that is to be felt and justified.

The face to face interaction with the offender increases the likelihood that he will treat him less harshly than if he were an abstract concept or as 'other'.  It is much more difficult to condemn someone to 20 years in prison if you interact with them face to face and hear their personal story.  You must go home knowing that it was you that sent a man to prison for x years rather than y years, or death rather than y years.  The are consequences to one's conscience if a one is overly harsh.

A judge interacts with all segments of the community--more so than a legislator--and will be more sensitive to socio-economic reasons for crime.  This will further increase the possibility that he is sensitive or at least aware of the values of other segments of the community than his own.  The picture and facts available to a judge to make a judgment is much richer than that of any legislator.  And last the judge has available to him the emotions involved in the case.  He can see if the offender is remorseful, the degree to which the victim is psychologically harmed.  There are also important justifying reasons for a sentence that a group of politicians in a legislative building cannot anticipate or feel.  The hopes of obtaining mercy from a legislature are minimal.

Section on Biasing toward Mercy via Mediation:  To be written.

Section Addressing Procedural Dangers of Victim Involvement in Sentencing:  To be written.

The key problem is this:  what if despite attempts at mediation, the victim insists on a harsh punishment.  What of mercy? My position is that the judge must take the victims desires into consideration and weigh them against other competing reasons: how will the sentence affect the ability for the criminal to reintegrate  How far do the victims desires deviate from the community norms?  Barring decisive reasons to the contrary, the judge ought to give the offender a sentence harsher than the average, but still within the range of what is justifiable to the community and can be felt to be just by at least a significant portion of the community.

He is not obligated to give a sentence that is exactly what he victim wants.  It will happen, that some people or crimes by their very nature will elicit an over-riding desire for revenge.  And consideration of such requests should not be prohibited.  However, by setting up a restorative system with the values and conditions I have suggested will aim at balance between felt and justifiable justice for all and the cultivation and expression of mercy.

Tuesday, October 30, 2012

The Dualism of Practical Reason: Sidgwick

The Dualism of Practical Reason from "Some Fundamental Ethical Controversies" by Sidgwick 

Sometimes we are faced with decisions in which we must choose between our own good and the good of others.  Of course, there are happy situations where the two converge, but the difficult moral situations are those in which the two interests do not aligne, and a choice must be made.  It is in these types of situations where Sidgwick says we experience the dualism of practical reason.

What does the dualism of practical reason mean?  To figure this out lets take the concepts in isolation.  Practical reason is the type of reasoning we use to decide what to do.  For (a very simple) example, if I'm hungry, my practical reason tells me I should make a "samich" rather than drink wine.  Or if I want to graduate, practical reason tells me I need to write my papers at night rather than go out drinking.  We also employ practical reasoning in more complex situations that involve values.  Suppose I value virtue (whatever that is).  Practical reason is what I employ to decide which actions will bring about virtue. Essentially, practical reason is what we use to determine how we should go about achieving some end--usually normative.  

Dualism, in this context, refers to the idea that our practical reason is divided between two sometimes conflicting ends.  These two ends are the good of other and our own good.  For Sidgwick the goal of seeking our own good/happiness is just as reasonable as seeking the good/happiness of others.  Because both goals are reasonable, in situations where these goals conflict, our practical intuition will be split.  That is, our practical reason will be in a stalemate with itself and so cannot be used to determine what to do.  In such cases, what we do will be a function of the relative strength of non-rational impulses.  In other words, what we decide to do will be determined by whatever desire is strongest, not what is rational.

For most of moral philosophy prior to Sidgwick moral theorists thought two things: (a) morality is rational and (b) what is right and good for the individual to do will converge with what is right and good for society.  Despite his desire that both be so, Sidgwick concludes that they can't both be true because of the dualism of practical reason.  Lets look at that in a little more detail...

The Dualism of Practical Reason:  The Problem of Rational Egoism
For many traditional moral theorists, it is a "dictate of reason" to prefer the general good to that of yourself.  That is, in cases where you stand to benefit at the expense of others, to do so would be immoral and irrational (because morality and reason are intertwined).

The problem is that some people might refuse to acknowledge the reasonableness of this principle.  A person might say that it is more or equally rational to prefer my own good as the end of my actions.  So, the only way such a person could act for the general good (in cases of conflict) is to act irrationally.   

It seems, that if we are honest with ourselves, we must acknowledge that reason "assigns a different end to the individual and to the [group]."  That is, it is just as reasonable to sacrifice one's own happiness to the group as it is to prefer one's own happiness to the group's.  If we want to maintain that morality is rational, that is, we can determine what to do in moral situations by appeal to our practical reason, we will find that what we ought to do sometimes conflicts.

Internalism vs Externalism
So, there are a couple of philosophical things going on here which has to do with what is called "internalism" and "externalism".  I wrote a post last year on this topic (see the Williams article) if you want more depth, but I'll quickly sketch it out here.  The issue is about what constitutes a reasonable end.

So far we've just said that both preference of one's own happiness (because it is important to you) and preference of the general good are both reasonable ends for our practical reason to realize.  But are they equally reasonable?

An internalist says that the reasonableness of an end of action is determined, well...internally.  That is, if I think that my well-being is more important to me than the general well-being, then that's good enough for it to constitute a reasonable reason for my action.  My subjective desires and beliefs about what's important determine what's reasonable for me to do.  You can't tell me "no, you are mistaken that your personal well-being is important to you".  How could I be mistaken about what is important to me?  That doesn't seem to make any sense.  So, so long as we say it is rational for an individual to pursue what is important to that particular individual, then actions toward those goals will be rational.

The externalist says, ho..ho..ho..hold on a second!  Not all reasons (i.e., ends) for action are reasonable, and furthermore reasons aren't merely internal desires for things.  Reasons stand outside of us.  Ok, yes x, y, z is important you but that doesn't make it objectively important or an objective reason for action.   There are reasons for action that everybody would agree are reasonable.  For example (from Parfit), if you are in a burning building and you can safely leave, you have a good reason to leave.  Everyone would agree to the reasonableness of your not wanting to get burned to deph.  You have a reason (in the external sense) to x-scape from the burning building.

So, the externalist says that there are different degrees of reasonableness ranging from the subjective to the objective.  Rationality is acting on the reasons to which everyone would subscribe.   Everybody has a reason to care about the general well-being (because they are a part of it) but only you (and maybe your momma) care about your particular well-being above the general well being.  Acting on objective reasons over subjective (ie. internal) reasons is a more rational thing to do.  Since (if!) morality is rational, then we should prefer the general good over our own in cases where they conflict.  Or at least in cases where I benefit at the expense of er'body elks.

Internalists deny the existence of external reasons, they say all reasons are internal, but that doesn't necessarily mean that people only have selfish motives for action.  Some people might, as part of their psychology prefer the good of others to their own.  So, their reason for acting benevolently will arise from wanting to see this preference realized.  Internalism doesn't condemn us to crass egoism.  People's actions will simply be a function of their internal preferences.  We just have hope that most desire the good of others!

Dualism of Practical Reason 2
There is another moral theory that demonstrates the split of our practical reason.  In Kant's moral philosophy we are always to act accordian to reason because it is supposed that reason alignes perfectly with the good.  That is, the right and the good perfectly overlap.

For Kant, the right is a matter of following absolute (rational) moral principles.  The problem is, it doesn't take much imagination to come up with situations where following the moral principles would cause us to act in a way we'd call--by any reasonable sense--immoral.  

The standard example is that of lying.  Kant says we should never lie.  Well, what about if I'm in WW2 Germany and I'm hiding Jews (down the well) and a gestapo agent asks me if I'm hiding any Jews down the well?  Our moral sensibilities seem to tell us that in such cases the moral position is to lie.

Sidgwick's point is this: even supposing we could rationally intuit or deduce a set of moral principles, there will inevitably be situations where these principles conflict and we will have to chose one over the other.  So, our practical reason will be split.  Furthermore, in such cases we need an "master" principle of morality.  One that tells us how to order the other principles when they conflict.

So, lets grant that Kant came up with the set of rational principles.  In situations where following them would seem to be causing great harm, it appears that our practical reason will be split.  Do we follow the rules just for the sake of following the rules or do we abide by another rule that says we should minimize general harm and maximize general happiness? 

 Only the most martinet of people follow rules "because that's the rule and following rules is what is good".  Most reasonable people acknowledge that when rules--no matter how rational--cause more harm then good, we should at least consider the principle of harm/utility.  So, even if we have a system of rational rules, our reason will still be split; that is, there will still be a dualism of practical reason.