Matthew C. Altman

Eleven Journals is een online tijdschriftenplatform van Boom uitgevers Den Haag (Boom juridisch, Boom criminologie, Boom bestuurskunde en Eleven International publishing)

During the coronavirus pandemic, communities have faced shortages of important healthcare resources such as COVID-19 vaccines, medical staff, ICU beds and ventilators. Public health officials in the U.S. have had to make decisions about two major issues: which infected patients should be treated first (triage), and which people who are at risk of infection should be inoculated first (vaccine distribution). Following Beauchamp and Childress’s principlism, adopted guidelines have tended to value both whole lives (survival to discharge) and life-years (survival for years past discharge). This process of collective moral reasoning has revealed our common commitment to both Kantian and utilitarian principles. For Kant, respecting people’s rights entails that we ought to value whole lives equally. Therefore we ought to allocate resources so as to maximise the number of patients who survive to discharge. By contrast, the principle of utility has us maximise life-years so that people can satisfy more of their considered preferences. Although people are treated impartially in the utilitarian calculus, it does not recognise their equal worth. Subjecting Kantian ethics and utilitarianism to the process of reflective equilibrium lends support to the idea that we need a pluralistic approach that would accommodate our moral intuitions regarding both the equal value of whole lives and the additive value of life-years.

Chapter 5, “The Two-Tiered Model of Punishment,” explains how consequentialism and retributivism can be combined in a mixed theory. The two-tiered model does not prioritize one approach over the other. Using the criminal justice system in the United States as an illustration, this chapter shows how the two theories of punishment inform separate powers within a legal system. The legislature identifies crimes and sets statutory penalties based on consequentialist concerns, according to which rules best preserve the public order and accomplish our collective aims; and the criminal judiciary finds people innocent or guilty and assigns penalties based on retributive concerns, according to what they deserve. Police and prosecutors are then constrained by rule-consequentialism. They carry out the will of the legislature in enforcing the law and trying the accused, within the constraints set out by primary and secondary law, even if violating those rules in specific instances would seem to preserve the state more effectively. The chapter concludes by explaining how the two-tiered model satisfies the five conditions that Jeffrie Murphy claims any theory must meet to be a viable theory of punishment.