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A Tough Pill to Swallow 157
and burdens that a relatively just legal system (or similar practice) creates. A relatively just
legal system is a cooperative practice from which each benefits if others generally do their
part and in which doing one’s part is sometimes burdensome…. Punishment, when
justified, is justified as corrective justice, that is, as part of maintaining a just legal order.
Maintaining a just legal order is good in itself and – all else equal – morally permissible. 43
This theory, though perhaps imperfect for various reasons not relevant to this
discussion, 44 offers an adequate moral justification of the punishment of recklessly
exacerbated mental disorder, and appears to consider aspects of both utilitarian
and retributivist theories. At first blush, one might think it unfair to hold people
with mental disorders accountable for failing to take their medications because
even while medicated many will still be encumbered and disturbed by side effects
or lingering aspects of the disorder. The fairness theory of punishment adequately
answers this worry. It recognizes the burden which those with mental disorders
must face, including the stigma and the side effects from medication which they
must take; however, it simultaneously recognizes the burden which society must
shoulder. Although perhaps not the best word, this social “burden” is constituted
by the safety concerns which the public would face if those with serious mental
instabilities were not medicated. While the balancing of burdens here sounds
highly similar to the “Removal of Unfair Advantage” retributivist theory, this
theory may be more desirable insofar as it justifies but does not demand
punishment in all cases where a mentally ill person goes off of his medication. It is
therefore open to argue that the burden imposed upon the person with paranoid
schizophrenia to diligently take his medication is a legitimate one which is
justified by the possible dangers he would present to society if he went without
medication. As noted, this theory stops short of demanding sanction in all cases,
especially where no actual harm is done.
The fairness theory of punishment does an adequate job justifying the
punishment of those who recklessly exacerbate their own mental illness, but
regardless, one can readily imagine a justification based on a combination of
retributivist and utilitarian reasoning, including both deterrence and the
punishment of immoral conduct. I will proceed from here on the assumption that
the introduction of such a punishment is philosophically justifiable.
In addition to moral philosophical justifications of punishment, at a more
concrete and legalistic level, the Code itself offers assistance in justifying
punishment for recklessly discontinuing an anti-psychotic regimen where it causes
death or serious injury. The Code sets out the broad purposes of punishing
offenders, 45 which include denunciation of unlawful conduct, deterrence,
separation from society, rehabilitation, reparations, and the promotion of a sense
of responsibility in the offender. While all of those goals are arguably served at
43
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45
Supra note 35 at 94
Ibid at 95-96.
Criminal Code, supra note 2 at s 718.