Accountability, a complex concept worthy of analysis in its own right, is particularly important to consider in the context of criminal justice, in part because of the ethical and pragmatic significance of holding those within the criminal justice system appropriately accountable for their actions. Holding others accountable is itself a core function (perhaps even the core function) of a criminal justice system.
An Analysis of Accountability
“Accountability,” although closely related to “responsibility,” is not a perfect synonym. Accountability is better analyzed as a distinct, though interrelated, concept. There are, however, important similarities. An agent can be responsible in at least two different ways. First, one can be responsible in the sense of mere attributability. For example, Michael could be responsible for eating a particular sandwich only in the sense that the eating of the sandwich is accurately ascribed to him. It is an action that he in fact performed, and it has revealed something about him—perhaps that he likes sandwiches. Responsibility, in this first sense, is normatively weak, as facts about mere attributability do not tend to justify much on the part of others. Second, one can be responsible in a more robust normative sense. To say that someone is responsible in this latter sense presupposes that actions can be properly attributable to her, but it implies more. Stephen could be responsible in this latter sense, for example, for the poison in Michael’s sandwich. The assault is not merely attributable to Stephen—it is an act of his, governed by interpersonal norms, that justifies certain responses by society.
To be accountable is to be responsible in this latter, more normatively loaded way. If Stephen is accountable for an action of his, then the action in question must be one that is governed by interpersonal standards, and so involves the moral community. To be accountable for a given action thus implies that it is appropriately governed by interpersonal norms. Moral agents, however, are not merely the appropriate subject of norms the way, for example, a dog can be the appropriate subject of norms. In the words of Gary Watson, “to speak of conduct as deserving of ‘censure,’ or ‘remonstration,’ as ‘outrageous,’ … is to suggest that some further response to the agent is (in principle) appropriate.” So accountability must also involve the idea that an agent deserves adverse treatment or negative attitudes in response to the violation of a given norm.
Therefore, accountability involves at least three distinct elements. First, accountability requires attributability: one can only be accountable for the actions that are appropriately considered one’s own. Second, accountability requires that the acts for which one is accountable are appropriately governed by interpersonal norms. Third, being accountable grounds further appropriate attitudes or actions in response to a norm being violated or upheld (e.g., praise, blame, guilt, and/or punishment). In other words, if one is accountable, one can justifiably be held accountable.
Significantly, accountability can be both forward looking and backward looking. Agents can be accountable for what they have done (e.g., one can be accountable for assaulting another); they can also be accountable for what they will do (e.g., one can be accountable for seeing that a borrowed item is safely returned). There is no conceptual limitation regarding what an agent could be accountable for, especially when considering forward-looking accountability. For instance, one can be accountable for objects (e.g., property), or even persons (e.g., children).
Being Accountable and Being Held Accountable
The relationship between accountability and holding accountable is complex. Holding accountable can take many forms. Holding accountable could involve acts to restore a previous state of affairs or it could be punishment, but it can also involve expressions of resentment and indignation, or even an appeal to the entity that has performed a misdeed to acknowledge responsibility for the wrong.
Being accountable justifies being held accountable, but perhaps less obviously, being accountable also requires being held accountable—at least at times. Some theorists argue that holding others accountable for their failures and being held accountable by others for one’s own failures is an essential part of the second-personal moral stance inherent in the nature of accountability. Others focus on the consequences of not holding agents accountable for their misdeeds. Whatever the theoretical justification, however, to be accountable, one must be held accountable on more than token occasions.
This relationship between accountability and holding accountable is a significant one; according to many theorists it explains why accountability is an inherently relational property. One is not merely accountable; one is accountable to another (or others). If B is accountable to A to perform a given action, and C is accountable to B to perform a different action, it is not the case that C is necessarily accountable to A, even if C’s action is required for B’s.
This relational feature of accountability explains the significance of several common practices. If Yamilee builds Jake a house, for example, Yamilee is accountable to Jake. However, Yamilee also must adhere to building codes that govern the minimum standards that such structures must meet. Significantly, these standards do much more than lay out the minimum requirements to which Yamilee and Jake must agree. They make Yamilee accountable to whomever is harmed by her failure to meet that code. If the building codes were removed, and Jake and Yamilee agree that she will build a house conforming to the codes as they previously existed, the content of Yamilee’s duties is unchanged. She has a duty to build a house that meets those specifications. However, considerations of accountability have changed dramatically: She is accountable to Jake and Jake alone. Although she may be accountable to anyone due to the consequences of negligence, she would not be accountable to others merely for her failure to meet the code, even if her failure to do so causes them harm.
Accountability and the Criminal Justice System
The topic of accountability is of particular interest to the study of criminal justice for at least two reasons. First and foremost, accountability is important because holding accountable is a core function (perhaps the core function) of the criminal justice system. While there is a loose, social sense in which each of person, as a member of the moral community, has standing to (and perhaps has an interest in) holding other members accountable, it is the criminal justice system that formally, systematically, and authoritatively holds members of a community accountable. It should not be surprising, then, that the three elements of accountability considered earlier are present in the criminal justice system itself. First, the criminal justice system makes judgments of attributability; when the question arises of whether a particular agent committed a crime, the primary question asked by the criminal justice system is whether the act constituting the crime can, in fact, be ascribed to the defendant. Second, the criminal justice system is authorized to consider only acts that a civil society has deemed to be appropriately governed by interpersonal legal norms. Since not all interpersonal violations are criminal violations, not all instances of holding accountable are appropriate targets of the criminal justice system. For instance, breaking a promise to meet a colleague for a lunch date will not result in arrest. All criminal violations, however, are violations of interpersonal norms. Third, accountability within the criminal justice system grounds further appropriate sanctions, namely punishment and blame.
If this is the correct way to think about accountability within the criminal justice system, then it looks as though accountability is inconsistent with at least a crude consequentialist view of punishment. From a crude consequentialist view of punishment, the likely consequences of society’s reactions to a crime are the only factor to consider in the justification of punishment. Many, however, rightly consider such a crude consequentialist picture antithetical to a proper understanding of accountability. While it is important that the kind of punishment prescribed have good predictable consequences, this is not the sole justification for the system of criminal justice. Another implication of this analysis is that the criminal justice system must be concerned with more than whether particular actors committed some particular acts. It must also consider whether an agent is the appropriate target of normative sanction.
Since mere attributability does not justify blame and punishment, there must be some additional property had by agents that is held accountable. It is common to think that this additional property is freedom or autonomy. As P. F. Strawson noted, being accountable need not require some kind of radical metaphysical freedom, but it does seem to require that one be free in a more limited sense— in at least the sense that one’s action reflects one’s character. Such considerations are seen in many existing justice systems in the world, for example, in the case of mental incompetence. If a serious crime is committed by someone with serious mental defects, the criminal justice system takes the incompetence of the agent to be a potentially mitigating consideration. Indeed, if accountability is intimately tied to judgments of blame and justification for punishment, it is clear why this should be so. The incompetent lack certain features that make persons autonomous, and so society finds it potentially inappropriate to hold them fully accountable for their actions. In such cases, it is unclear whether an agent is sufficiently sophisticated to see her actions as an expression of her values and character. Thus, if it is the job of the criminal justice system to formally and systematically hold members of a society accountable for some set of violations, then the system would be expected to treat nonautonomous persons differently from fully autonomous agents. Leniency with the incompetent reflects the judgment that, even if certain violations are attributable to them, they are not fully accountable for those actions.
Finally, the concept of accountability is also significant within the domain of criminal justice ethics because of the ethical and pragmatic significance of holding the members of organizations within the criminal justice system accountable for their actions. Since the criminal justice system has the ability to injure, detain, incarcerate, or even kill members of the public, it is imperative that both individuals and organizations that possess such authority are appropriately accountable.
Such accountability for those within the criminal justice system itself is important for several reasons. First, proper accountability for those within the criminal justice system helps check potential abuses of power. Equally important, proper accountability is required to maintain the public trust. Finally, and most importantly, accountability for those within the criminal justice system is required precisely because any authority those operating within that justice system exercise is held on behalf of the public. Individuals and organizations within the criminal justice system act on behalf of the public, so, in some way, they must themselves be accountable to the public for those actions.
How exactly such accountability should be implemented within a criminal justice system is a contentious and difficult question. Nonetheless, the significance of such accountability follows from the function of the criminal justice system and a proper understanding of the concept of accountability.
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