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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 boyfriends 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 defendants past behavior, the severity
of the offense, the damage to victims, and the defendants 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
defendants 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 killers 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 defendants 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 Posners majority opinion, Judge Ripple argues that the majority is wrong to
argue that the defendants 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 Ripples 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 Ripples 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 Posners and Ripples 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 arent religious Jews. Most
of us dont 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?
[i]
[ United States v. Guzman, 236 F.3d 830, 236 F.3d 830 (7th Cir. 01/03/2001)]
[ii]
This tension is not limited to the law. It has also
surfaced in contemporary philosophical disagreements.
Again, fairness seems to demand that we separate out race, gender, national origin
and socio-economic status from our concept of justice. And yet, by separating out all such
contextual factors we run the danger that our conclusions will be too abstract
to be relevant to reality? Alasdair MacIntyre
explores this danger in Whose Justice? Which Rationality? (South Bend: Notre Dame University, 1988)
[iii]
[ United States v. Guzman, 236 F.3d 830, 236 F.3d 830 (7th Cir. 01/03/2001)]
[iv]
Just to be accurate: Judge Poser did not think that deciding this issue was necessary to
making a decision. He wrote It is enough in order to decide this case to note that
the sentencing judge abused his discretion
[v]
Companion Encyclopedia of Anthropology. Tim
Ingold,ed. Routledge.London.1999.p.330
To view other articles by Tsvi Blanchard, click here.
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