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Justice, Cultural Pluralism and the Courts

By Tsvi Blanchard

Maria Guzman, a Mexican citizen, admitted to joining her boyfriend and another man in a conspiracy to distribute drugs.[i]  On the basis of her Mexican cultural heritage, she asked the sentencing judge to give her a very lenient sentence. While she understood that doing so required the judge to depart significantly from existing sentencing guidelines, she argued that this would be justified “because Mexican cultural norms dictated submission to her boyfriend’s will.”  The sentencing judge agreed.  Although the relevant sentencing guidelines call for 57 to 71 months in jail, Maria Guzman -- because of her Mexican cultural heritage -- was given three days with six months of home detention and two and a half years of supervised release.  

Was this fair?  Just?  Ethical?  These questions are not as easily answered as one might think.   On the one hand, as the philosopher Martha C. Nussbaum has pointed out, since the days of the stoic thinkers, one important and continually increasingly strong tendency in Western political thought has been toward eliminating the legal, economic and even social significance of distinctions based on race, creed, religion, gender and nationality.  On the other hand, pressing against this tendency, there has always been a counter force -- sometimes conservative, sometimes progressive – that insists on the importance of these differences.  The tension between these two approaches plays out differently in different areas of our culture.  For example, issues of distributive justice —affirmative action, for instance — have not been addressed in exactly the same ways as issues of just punishment.  

Where are we now on these political-legal-ethical questions, especially with regard to the significance of cultural heritage?  For present purposes, we limit our discussion to the issue of justice in sentencing.  In contemporary American law,[ii] sentencing most often takes into account the defendant’s past behavior, the severity of the offense, the damage to victims, and the defendant’s age, state of mind and mental capacity when committing the crime.  The Congress of the United States explicitly requires that, in sentencing guidelines, ”race, sex, national origin, creed, religion and socio-economic status” should be as irrelevant as possible.  While these factors do, in fact, influence the course of the trial and the sentencing, they are not supposed to do so. 

What about a defendant’s cultural heritage: Ought it to be considered as a legitimate factor in assessing guilt and determining punishment?  In the decision of the U.S. Court of Appeals in the Guzman case,[iii] the “relevance” of this factor is explored.   Judge Posner, writing for the majority,[iv] worries that it will be very hard, if not impossible, to separate the affects of “cultural heritage” from such morally irrelevant factors as race, religion or national origin.  He argues that so much of our identity “is a function of upbringing and therefore shaped by culture…” that giving special consideration to cultural heritage might  “inject enormous subjectivity and variance into a sentencing scheme designed for reasonable objectivity and uniformity.”  And, given our moral intuitions, would it be acceptable, Posner asks, to lower the sentence on a revenge killing because the killer’s “Balkan traditions” included blood feud? 

In addition, factoring in cultural heritage when sentencing could end up dangerously perpetuating cultural stereotypes.  In the Guzman case, for example, it would perpetuate the negative stereotype of Mexican macho.   What would be the implications for American political or business culture of accepting as legally normative the idea that Mexican women are thoroughly dominated by their men?  Certainly, it would not serve “Mexican interests” in a multicultural society to be perceived this way.  For all these reasons, Posner is disinclined to view the factor of a defendant’s cultural heritage any differently than the factors of race, gender, religion, national origin and socio-economic status -- all of which have been deemed to be unacceptable as sentencing criteria. 

Dissenting from Posner’s majority opinion, Judge Ripple argues that the majority is wrong to argue that the defendant’s cultural heritage cannot be conceptually distinguished from the “forbidden factors.”  While acknowledging that race or national origin is typically correlated with cultural heritage, they are not reducible to one another.  Having made this distinction, Judge Ripple goes on to make an even stronger claim. He writes: 

Race, nationality, language and culture are in actuality independent variables. They meet only in the persons of given individuals who belong to a particular race, are citizens of a specific nation, speak a certain language, and live in accordance with the traditions of their society [emphasis added]. 

Since Judge Ripple understands “culture” as consisting of a discrete body of traditional beliefs and behaviors, he argues for treating it as a legitimate and distinct factor in sentencing, albeit one that should be used in very limited ways.  

Few anthropologists today would assent to Judge Ripple’s conception of culture. Contemporary anthropology has rejected the idea that cultures can be understood as self-contained bodies of traditional behaviors, mores, etc.   As anthropologist Tim Ingold formulates the current view, “people live culturally rather than…live in cultures.”[v]  And yet, I do not think that this alternative conception of culture would materially alter Judge Ripple’s claim that “living culturally” differs importantly from “being of a particular race, country, language or religion.” His point is that cultures -- our shared ways of living – necessarily influence how we understand the world and may be taken into account when determining how a defendant should be sentenced. 

The contrast between Posner’s and Ripple’s positions reflects an as yet unanswered question in our society.  Can a deliberately multicultural society appreciate and encourage very different component cultures while at the same time sustaining a shared legal and economic system?  On the one hand, the legal and political culture of those shared systems must bring these divergent groups together on issues of value and normative behavior.  On the other hand, the important cultural features of different component groups must be preserved in their particularity.  Since values and norms are important features that distinguish ways of living culturally, it is not clear how the overarching and relatively homogeneous legal and political culture can be created and sustained.   

Jews experience this tension in ways that are both poignant and painful.  On the one hand, we have indeed made our way into North American society.  We endorse the values of our legal system that insist on fairness as neutrality with respect to ethnic, linguistic or religious identity.  In terms of the Guzman case, we most definitely do not want a reduction in sentence. 

On the other hand, most of us aren’t religious Jews.  Most of us don’t speak any “Jewish” language.   Most of us live culturally in much the same ways that other middle and upper-middle class Americans do.  So, what does it mean to talk about our Jewish cultural heritage?   And, if we do find an answer to that question, most of us will not want that Jewish cultural heritage to affect our economic, social, political and civic lives.  But, then where in North American life will that Jewish heritage really matter? 

To view other articles by Tsvi Blanchard, click here.

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