an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I am writing this at 4:25 a.m. on Friday and I’m a bit woozy. On Wednesday afternoon, my body seriously crashed. On very short notice, my beloved spouse got me in to see to see a physician, who told me I definitely had a bad flu and the only one going around was the swine flu.
The good news is that I’ve been recovering just as quickly as I crashed. By Thursday morning, my 101.3 fever had broken, and while I still have a cough, the aches and chills are now largely gone. My body just feels extraordinarily tired. I tried going to sleep Thursday night without any cold medications.
Sometime in the wee hours of Friday morning, I started to have an extended nightmare of bad guys breaking into my house and putting me and my family at risk. The nightmare was on a repeated loop where, over and over, I would try to change the horrific outcome. Each time I would look for different tools around the house that I could use to fend off the attack.
(Besides my illness, the nightmare may have been partly induced by the recent novels of Lee Child and Geraldine Brooks that I have been reading.)
But I’m writing about this unhappy vignette because of what happened next. As I was having this repeated nightmare, I became semi-conscious so that I could direct not just my own actions in the dream but even aspects of the context. At some point, I switched from thinking about my family to thinking about a nightmarish home invasion that happened last year a few doors down from my house. My (possibly impaired) memory is that three men broke into the home, tied up a house sitter, and beat her up while she was restrained — breaking bones in her hand with a baseball bat. They caught the bad guys. But I started wondering what happened to them. The key moment was when I started asking what rights that house sitter should have with regard to their sentence. If I were she, I would be incensed if they were only sentenced to a year or two in jail. I felt she might say to the judge, “If the punishment is just a year in jail, I should be able to break your hands and not risk a longer sentence.” But then a thought came to me that something like the cake cutting rule — you cut/I choose — might be applied to the perpetrators themselves. To my mind, legal rights are a kind of option, so the search for optimal victim rights is a search for optimal options. And the cake cutting rule is one kind of option mechanism. It induces the first person to divide the cake evenly, because the second person has the option of taking either side of the cake.
How could that idea be applied to the house sitter problem? One way would be to give the perpetrators the option of enhancing their own punishment. If a prosecutor or a sentencing judge offered them a sentence of two years, the perpetrators would be given the option of increasing their own sentence to as long as they wanted. The victim would then have the right to treat the augmented sentence merely as a price and would have the option of doing the same thing to the perpetrators as long as she was willing to accept the same punishment. Regardless of what the victim chose, the perpetrators would still have to serve the augmented sentence.
Normally, we think that criminal defendants would only want to minimize the size of their sentence. But this crazy idea makes them the beneficiary of a longer sentence because it is more likely to deter their own victimization. In the terms of game theory, it gives them a countervailing incentive to avoid bargaining for a sentence that under-deters. I’ve played around with vaguely similar option ideas as a way to resolve civil disputes (here and here), but only because of the ravages of the flu did the criminal application occur to me.
Let me be clear: I do not endorse this victim rights idea. I am starting to crash (it’s now 5:15), but I can see serious problems with it. I don’t want to live in a world that gives victims these options and, if such an option were given to me, I hope in cool reflection that I would not exercise it. This deranged inspiration falls into the category of what my beloved spouse calls “just shut up now” ideas.
But I do endorse the thought process that gave rise to it. Indeed, there is a certain continuity to what I was doing while asleep. When I was inside the nightmare I was looking for tools at hand to fend off the attackers, and when I came to, I, in a sense, kept doing the same thing. I just started looking for legal and economic tools to protect potential victims. On net, I wish I could have avoided both the swine flu and the nightmare, but asking “why not?” in the quiet moments before dawn is a kind of self-medication that calms the racing mind.