Introducing Rationalization 38B: Excessive Accountability, or “He’s Suffered Enough.”

This is a new 38B, requiring the old one, Joe Biden’s Inoculation or “I don’t deny that I do this!”, to be relabeled 38C. I was tempted to call it “The Lost Rationalization,” because while Ethics Alarms has frequently rejected the argument that he, she or they have “suffered enough,” and even called it a rationalization, it never made its way onto the Rationalizations List.

“He’s suffered enough” is a very close relative of #38 A.“Mercy For Miscreants”:

The theory behind this sub-rationalization is that it is only fair to assign a criticism quota to groups and individuals: at a certain point, no more criticism is allowed, because nobody should have to be criticized that much. It is so darn mean to keep heaping abuse on someone, even if they deserve it.

But while 38 A focuses on criticism, 38 B is about limiting punishment. The “he’s suffered enough” rationalization has arisen most notably in the tragic cases where a parent has negligently allowed an infant or small child to perish in a locked car. Local prosecution of such individuals is strikingly inconsistent, and when no legal consequences follow, the justification is usually Rationalization 38 B.

What I wrote the first time I analyzed these cases, in the 2010 post  Ethics, Punishment and the Dead Child in the Back Seat thatI also quoted extensively here, encompassed a thorough description of the rationalization. (I also re-posted yet another essay on this topic from 2014 just last July).

Upon checking, I discovered that in yet another post from 2012, I referred to “he’s suffered enough” as a common rationalization without putting it in the list. Reviewing that post and the earlier one, I have arrived at this description of the latest rationalization.

Prosecutors who don’t bring charges against individuals based on non-legal consequences of misconduct like loss of reputation, public esteem, employment or family relationships are adopting the position that a crime “carries its own punishment,” and that enforcing the law is inherently cruel, piling on, kicking someone who is not only down, but one who is kicking himself. But the father who accidentally kills his son by striking him too hard while in a rage; the mother whose toddler poisons herself by ingesting the crack cocaine her mother left on the table; the business executive who embezzles funds, Roman Polanski, Bernie, Madoff, Bill Cosby, Harvey Weinstein and many more have also engineered their own punishments.  To conclude that society should just allow these and other offenses against society and civilization  to occur without making the clear statement, “This is intolerable, and the person responsible for an avoidable tragedy must be held accountable by the law” constitutes a moral, ethical and legal shrug,

Punishment is about more than hurting a wrongdoer, It is also a necessary tool for maintaining society’s values, and expressing appropriate outrage, on the record, when they are violated. We can’t know for certain how much a wrongdoer has suffered or is suffering.  We can make certain that society’s suffering because of a wrongdoer’s act is consistently and powerfully expressed. There is only one way for the community to effectively and unambiguously condemn anti-social conduct, and that is to condemn those who engage in it with punishment  proportional  to the enormity of the unethical actions. Making the wrongdoer “suffer enough’  is not the primary objective. The objective is to make a statement that cannot be misinterpreted now or years from now, that citizens have certain duties to each other, and when those duties are grievously breached, society will show its disapproval—no matter how much the wrongdoer may have suffered.

15 thoughts on “Introducing Rationalization 38B: Excessive Accountability, or “He’s Suffered Enough.”

  1. Good addition, Jack.

    If we don’t have consequences for wrongs, then there is no stopping the wrong doing. Change the law.

    On the other hand, there are cases where application of the letter of the law results in a miscarriage of justice. Prosecutorial discretion is key here.

    On the other… er, ran out of hands, so ‘foot’: Prosecutors have abused that discretion without much in the way of consequences. I wonder if a prosecutor like Nifong would ask for mercy under this rationalization (he actually did)

  2. This principle was best explained by the now-late California Supreme Court Justice Stanley Mosk.

    http://law.justia.com/cases/california/supreme-court/3d/25/608.html

    But the majority then fall into a complete non sequitur when they find it “follows” therefrom (ibid.) that the Legislature may reasonably believe that because of the possibility of pregnancy, the female runs greater medical and social risks in sexual intercourse than the male. Of course she runs greater risks if adequate contraceptive measures are not taken; but they are the consequences rather than the causes of her act, and are therefore wholly irrelevant to weighing her moral blame in committing the act in the first place. In our system of justice, offenders are not deemed less culpable merely because they may suffer additional punishment from sources outside the legal system. For example, an outwardly respectable person who engages in illicit drug activity is not rendered less blameworthy when his arrest and conviction for that conduct also result in social ostracism and loss of professional status.

    Michael M. v. Superior Court, 25 Cal.3d 608, 621-622 (Cal. 1979) (Mosk, J., dissenting)

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