The Lost Logic Of Deterrence: When 'Sending A Message' To The Masses Outstrips Fairness

The first morning that then Boston University student Joel Tenenbaum woke to the realization that he had a $675,000 court judgment against him, it must have felt like some kind of weird hangover. Here he was, a young man proven to have copied 30 songs, now owing copyright owners the price of a college education several times over. He must have thought, “this can’t be happening to me.”

Late last month, after years of appeals, the First Circuit Court of Appeals affirmed Mr. Tenenbaum’s obligation to pay the money. One of the reasons the court gave for affirming this amazingly large amount was “the deterrent effect of statutory damages.”

The logic of deterrence is seductive and we need to have better safeguards against it.

Some theories of deterrence argue that if the legal system hurts one lawbreaker badly enough, that can and should compensate for low rates of enforcement.

Imagine that the government wanted to keep cyclists within marked bike lanes, but that it was extremely difficult to catch those who disregarded the lane limits. Increase the penalty enough and maybe the police would only have to catch a few of the straying cyclists in order to give the whole population the message that everyone should stay within the lines. In order to make the point effectively, one or two unfortunates whom the police actually nabbed would be punished to the full extent of the law — and the law would set the penalty high.

Under this theory, the disproportionately unfair punishment doesn’t matter. What does matter is that the rest of the citizenry will hesitate to break the law if the penalty imposed — on those unlucky enough to be caught — is high enough. The larger message outweighs the notion of individual fairness.

Whether the defendant is a straying cyclist or a wayward downloader of songs, one could view the unlucky soul who is punished for the purpose of teaching us a lesson as a kind of Nathan Hale. (In addition, sometimes the lawbreaker isn’t a wrongdoer at all. Sometimes he (or she) is a victim of his (or her) circumstances.)

Hale, a solider for the Continental Army during the American Revolutionary War, was sentenced to death by the British for spying. He is famous for saying on the scaffold, “I only regret that I have but one life to give for my country.”

To contemporary Americans, Nathan Hale is a hero. To those who executed him for spying, he was a 21-year-old rebel who violated British law. As far as we know, Mr. Tenenbaum may have perceived himself as acting in the spirit of liberty as did Mr. Hale.

Americans today don’t believe that Nathan Hale, the patriot, deserved to die, just as many don’t believe that Joel Tenenbaum, the music copyist, engaged in significant wrongdoing. (Especially because, for some time, it was unclear whether private, noncommercial uploading and downloading might be lawful as fair use.)

At some point the resemblance falters of course. We all agree today with the cause for which Mr. Hale broke British law, while many of us doubt that Mr. Tenenbaum’s cause is as just. But sacrifice — hurting the one for the sake of the many — should not be casually justified. The imposition of significantly disproportionate damage is unfair and there is a limit on the extent to which the government should ask anyone to sacrifice for everyone else. One doesn't give up all rights to fair treatment by breaking the law.

Sacrifice — hurting the one for the sake of the many — should not be casually justified.

The Eighth Amendment of the Constitution prohibits “cruel and unusual punishment” under criminal law. On the civil side, other doctrines give some protection. But the logic of deterrence is seductive and we need to have better safeguards against it.

Consider copyright law, for example. Canada’s copyright law has such a safeguard: it caps at $5,000 the damages that a court can impose in any one proceeding, regardless of the number of works infringed — so long as “the infringements are for non-commercial purposes.” By contrast, our courts imposed $675,000 in statutory damages on Mr. Tenenbaum for his non-commercial copying.

Mr. Tenenbaum, we hope you have more than one lifetime of debt to give to your country.

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