Miller - Blog Post 9

 In Chapter 5 of Democratic Rights, Corey Brettschneider discusses the rights of the punished. Expanding on his argument from Chapter 3, Brettschneider contends that persons subject to state coercion, such as criminals, should be treated as citizens. He advances arguments for democratic contractualism, described as “the ideal of the citizen” which justifies “coercion by regarding all persons subject to state force as free and equal” (101). The implication of this is that criminals, many of whom fail to respect fellow citizens as free and equal, still deserve rights which will limit the types of state punishment that can be imposed.

To illustrate democratic contractualism, Brettschneider contrasts it with Hobbesian and retributive approaches to punishment. Brettschneider explains that “whereas Hobbes labels criminals “enemies” outside the social contract, contractualist justification views even the worst offenders as citizens and requires that the coercion they face be reasonably acceptable to them” (99). His democratic contractualism is fundamentally different from the Hobbesian approach because, in characterizing criminals as citizens rather than enemies, it emphasizes the importance of taking into consideration the interests of criminals qua citizens. 

On the other hand, retributive accounts differ from democratic contractualism in that they place emphasis on the moral worth of the criminal and their actions. According to Brettschneider, retributive accounts err in considering criminals’ “moral desert” in “isolation from the criminal’s relationship with the state” (98). Brettschneider provides an example of the conflict between moral desert (retributivism) and state legitimacy (democratic contractualism) in the case of punishing Osama bin Laden. While a retributivist may claim that Osama Bin Laden did not deserve a trial if captured, a democratic contractualist would emphasize the need for a fair trial and the rule of law. 

I think another fascinating case is that of Guantanamo Bay, which is an American prison in Cuba where non-citizens suspected of terrorism are detained and which has a history of denying prisoners’ habeas corpus petitions regarding unlawful detention. The United States government has long defended the detainment of prisoners without trial by characterizing them as unlawful enemy combatants; this has striking similarities to the Hobbesian account of punishment. This case touches on not only the treatment of prisoners, but also their status as citizens. In Chapter 3, Brettschneider explains that a moral citizen is not necessarily a “legal” citizen with political rights, but is anyone who is coerced by the law and who is “entitled to be treated as sovereign in a manner that accords with the core values” (60). In Chapter 5, Brettschneider addresses the punishment of moral citizens when he writes that “the moral ideal of democratic citizenship requires that all persons subject to coercion have rights guarantees that limit the type of punishment the state can impose upon them” (101). Thus, it seems likely that Brettschneider would contend that prisoners at Guantanamo Bay would be moral citizens with rights guarantees that are being violated.

The issue of Guantanamo Bay raises interesting questions about the democratic substantive constraints encompassed in the American Constitution. For example, the 8th Amendment says that “cruel and unusual punishments” shall not be inflicted, but does not clarify if this protection extends to legal citizens or all persons subject to state coercion (moral citizens). In addition, the terms “cruel and unusual” are broad, and do not necessarily encompass a promise of free and equal citizenship when imprisoned. Would Brettschneider encourage a redrafting of the 8th Amendment that guarantees criminals’ status as free and equal citizens and which explicitly extends its protections to all moral citizens? How would such a new 8th Amendment change the circumstances at Guantanamo Bay? Finally, as the rise of cybercrime becomes increasingly prevalent, how does Brettschneider believe we should conceptualize who the state can coerce/who can be a moral citizen (as they are one and the same)? That is, as crime, and thus punishment move beyond borders and onto the internet, how do we define the boundaries of moral citizens susceptible to state coercion?