Bergelson and Husak Type 2: Comparative Insight

Vera Bergelson and Douglas Husak approach two different sides of the philosophical argument around punishment: punishing the blameless and punishing the deserving.

Bergelson explores strict liability in a public welfare sense, which she explains came about “in the second half of the nineteenth century in response to the increased urbanization and industrialization of life and the perceived need to protect the general public from unknown systemic failures and risks.” (Bergelson 377). She includes a classic example of this where the CEO of a corporation is held responsible and punished for their companies’ criminal wrongdoings, “even when even when those executives had no knowledge of or participation in the wrongdoings.” (Bergelson 376)

Bergelson explains and refutes three arguments against strict liability public welfare offenses. The first is that “strict liability penalties are not punishment,” which is true when she defines punishment as “deserved suffering or depravation.” (Bergelson 379) The second is that “punishing the blameless is not necessarily unjust.” (Bergelson 379) She first includes several examples that represent how punishing an innocent person is morally permissible in some circumstances. From that logic, she also concludes that some of the defendants of strict liability public welfare offenses are not innocent. The third argument is that “we punish the blameless all the time, so public welfare offenses are no different and are an integral part of the existing criminal law.” (Bergelson 391) In both the criminal justice system and criminal philosophy, punishment of the innocence is present.

In response to the first and third arguments, Bergelson argues that strict liability public welfare crimes are different than other strict liability crimes, and should be treated and observed as such. In addition, she explains that we can all agree that there are aspects of punishments that a blameless person should not have to endure. In response to the second argument, Bergelson argues that some defendants of strict liability public welfare crimes are not innocent, while some are, but the line is too blurred. Bergelson concludes by looking for a reformed strict liability standard in regards to public welfare crimes.

Husak approaches punishing the deserving as a refutation to retributivists. He searches for a justification of punishment in general. He asks “Should an adequate justification of punishment emphasize that the offender has brought punishment on himself, or should it understand punishment as an unwanted imposition?” and concludes that punishment should do both. (Husak 448)

Husak explains that the main justification of punishment is crime reduction. However, he questions this justification by proposing a scenario where two similar offenders received the same punishment. One offender never commits the crime again, while the other continues. This example calls into question the previous justification. Husak explains “once the institution of punishment has been justified by its efficacy in reducing crime, one need not examine the consequences of particular impositions of punishment to conclude that they are justified.” (Husak 461) But if the efficacy in reducing crime is not proven, is punishment justified? Husak poses this question to the rest of the field of philosophy in his conclusion.

Bergelson and Husak’s arguments involve opposite ends of the spectrum of punishment. But when read together, they both question the idea of punishment as whole.

(Also if anyone could clarify this for me, the use of the term “desert” threw me off a bit, are they referring to the common phrase “just deserts”?)

Bergelson, V. Does Fault Matter?. Criminal Law, Philosophy 12, 375–392 (2018).

Husak, Douglas N. “Why Punish the Deserving?” Noûs, vol. 26, no. 4, 1992, pp. 447–464. JSTOR, Accessed 16 Nov. 2020.

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