What’s It Like To Live Without Illusions? Tough, And It Sucks

illusion

About 6 months ago, I decided to do a bit a self-experimentation. I tried to identify as many of my illusions as I could, and then see if I could lose them one by one. Readers of this blog – those who are still around – may have noticed one of the first: that this is an interesting blog. I stopped writing after decades of what often seemed like talking to a wall. After all, if few other people like what I do, then why should I? Wisdom of the crowds, and such. But that’s hardly the most important illusion I tried to get rid of. (“Tried”, since here I am, writing again…)

Over the last years, I read a lot about free will, blame and moral responsibility. My writing on human rights made me conscious of the harm we inflict on each other while trying to hold “wrongdoers” to account: capital punishment, mass incarceration, police brutality and so on are well-documented human rights violations, but the interesting thing about them is that they imply beliefs – in the minds of the perpetrators – about victim accountability and responsibility. The belief that people should be held accountable for their misdeeds – and should suffer for them – wraps around another belief: that people possess some form of free will.

The growing consensus in the fields of psychology and neurology (including evolutionary psychology, brain imaging and the study of systematic biases) is that free will is an illusion. “Illusion” is probably too strong a word in this case, but the literature has certainly convinced me to be more generous to “wrongdoers”. Not only should we avoid harsh punishment for consequentialist reasons – we do more harm while punishing people than the good that may come from often imaginary deterrent and protection effects – but also because punishment has become little more than an overly theatrical way of blaming people who seem decreasingly blameworthy.

finger_wag_hypnosis

So let’s say that in general I’ve tried to rid myself of the illusion of judgment. Negative judgment at least. I try to no longer blame people for their shortcomings. (Sorry for the split infinitive here, but let’s face it: grammatical rules are often used as a theatrical means of blaming people and of signalling our own superiority relative to the blameworthy. Communication is about understanding, and if rules can assist in understanding then they are good. If not, lose your illusion.)

Avoiding blame may seem dangerous: if we no longer blame people for their mistakes and misdeeds, then how will they learn and become better people? Is mutual improvement also an illusion that should be abandoned? I don’t think so. But there’s a large space between blame and indifference. You can tell people about their mistakes without judgment. It’s tricky, but doable.

What about positive judgments? Do I no longer appreciate beauty, music and art? To the extent that beauty is an illusion, that’s probably the hardest one to shed. A sensation of beauty just comes over you, unexpectedly. You can’t fight it or reason yourself away from it, as you can with free will. You can try to tell yourself that a beautiful body is just a bag of bones, meat and human waste made to look appealing because bodily attraction has helped humanity to survive during our difficult early evolution. However, you often can’t keep fooling yourself into believing this, at least not in the sense of immediate, intuitive belief.

What about music? As an adolescent I became enchanted by Wagner and I started to read a lot about him, including a lot of critical stuff arguing against his method: how silly it is to use leitmotivs, as if we can’t see that Wotan comes on stage and need to hear his tune as well; how Wagner did not respect “classical” rules of composition; how repetitive he was; how loud, bombastic and Teutonic; how the German language was unfit for opera, especially when littered with alliteration. And so on. All of this made me doubt, and I almost gave up being a Wagnerian because of it. But I couldn’t. The music is just magic, and it blows you away no matter how much you rationalise against it, at least if you’re open to being blown away. The beauty of it may be an illusion. In the narrow sense that you get tricked by a cunning and scamming composer. Or in the broader sense: beauty is no more than brain stimulations that have developed over the course of human evolution because individuals who are receptive to these kinds of stimulation are happier and therefore more likely to survive.

wagner quote

So far so good, you may say. Get rid of the noxious illusions, if you can, and keep the pleasant and harmless ones. Good work Spagnoli! But then why do you tell us that it sucks? Because illusions are like faces in things. Once you train yourself to see faces in things, you start to see them everywhere. Same for illusions. Friendship starts to look like an illusion. You try to ignore your friends to see whether they really care about you. Do they show you that they care by asking you why you ignore them? Nah. They just ignore you back because you’re being such a dick.

And then there’s LOVE: there’s a long history of love bashing. Do we really love the people we love? Why do we love that particular person and not another one? Seems a bit arbitrary to us all, at some points in our lives. Just admit it. It could just as well have been someone else. What is love really? Perhaps not a lot more than just another evolutionary adaptation inherited from early humans who were frail and needed to stick together in small family type groups that cared for each other and their offspring in a hostile prehistoric environment. Maybe. But if so, then love is no longer relevant since that kind of frailty has been largely overcome. Love is reduced to companionship and sex, both of which I’ve argued may be just as illusory (albeit in a pleasant way as long as you manage to avoid thinking below skin level.)

And now for the most dangerous illusion of all: are you actually alive? You’re losing your friends and loved ones. You’re counting the times that you were ignored during meetings at work; that the girls on the bus didn’t look back at you; that you had to repeat yourself; that your email went unanswered. You remember the accident you were in as a child, and start to wonder whether you’re Bruce Willis. At best you come under the impression of slowly fading away, quite literally. Needless to say that this is dangerously self-destructive. From a medical perspective, it looks like an illusion or delusion. But it may just as well be the product of fanatical and self-reinforcing opposition to illusion.

How to get out of this trap? I’m not sure you can, but an old analytic philosophy trick seems to help: define your terms, analyse the meaning of words. If you feel overwhelmed by the loss of illusions, start to define “illusion”. You’ll probably notice that the term is vague and overly inclusive. Which would account for the tendency to see illusions everywhere. A precise definition of the word can help you get out of the anti-illusory maelstrom. Perhaps.

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Crime and Human Rights (22): Blame Is So 20th Century

Blame is useless in criminal punishment. We don’t need it. Rather than blaming the criminal, as we so often do, we should pay sole attention to criminal actions. It’s those actions that are the problem. Crimes are bad – i.a. because a lot of crimes result in rights violations – and whether criminals are bad is of secondary importance. What we need to do is put an end to rights violations and crimes. In order to do that we have to focus on actions: on the consequences of certain harmful actions, and on ways to prevent them from occurring in the future.

Blame doesn’t help us to stop harmful actions. At least not immediately. (One could argue that blame teaches people about morality, but that’s a longterm goal). What does help, in some cases, is a focus on character. However, the purpose of this focus on character is not to build a case for blame. An understanding of a criminal’s character – of his or her general viciousness or dickishness – can help us avoid future crimes and rights violations because this understanding can tell us something about the need for incapacitation. A bad person poses a higher risk of recidivism than someone who has made a mistake or has committed one intentional evil act. However, this punishment of incapacitation isn’t the result of the criminal’s blameworthiness. The only reason to incapacitate a criminal is the risk of future harmful actions.

What we tend to do is the opposite. If we speak about a criminal’s character, it’s usually because we want to blame the criminal beyond what we would normally think is necessary. There are at least three stages of blame: people are blamed for doing something wrong accidentally or stupidly; people who do something wrong intentionally are blamed somewhat more; and people who do something because of their nasty character are blamed even more. (In criminal trials it’s common that judges take into account past actions as either aggravating or mitigating circumstances).

We often want to impose additional blame on someone who has done wrong and has a history of doing wrong because we believe that blame should be about character. Bad people should receive more blame than people who do one thing wrong. If two people commit the same crime but one does it because he or she is a bad person and the other for opportunistic reasons for example, then the former should receive more blame simply because he or she is a bad person. A bad character is worse than one bad intentional act.

What I want to do is sever the link between blame and character, and use a person’s character not as a source of blame but as a means to assess the likelihood of future wrongdoing and to avoid crimes and rights violations. Rather than use people’s character as a source of blame – which is very hard anyway given what we don’t know about genetics, early childhood experiences etc. – we should do character assessment, to the extent that it is possible, because it teaches us something about the need for incapacitation as a means to avoid harmful actions.

Obviously, this has consequences for the types and severity of the criminal punishments we can impose. (A person’s character or habitual behavior shouldn’t be an aggravating circumstance in itself, irrespective of the need for incapacitation). However, what I’m arguing here may have consequences beyond the realm of criminal punishment. It may be true that we blame too often and too much in general. A child who is blamed for wrongdoing may thereby learn the rules of morality; a worker who is blamed for misconduct may become a better worker, etc. But we should admit that we usually don’t have a good reason for blaming people. People’s intentions are hard to figure out. And it’s even harder to judge someone’s character, except in a few extreme cases. We’re also in the dark about what drives people: are their actions really the result of blameworthy choices, or is there something deeper such as their genetic make-up or early experiences that makes them do what they do? Hard to tell, and yet blame seems so easy.

More posts in this series are here.

Crime and Human Rights (21): A Proposal For a Better System of Criminal Punishment

Like many of you, I’m in favor of a radical overhaul of our criminal justice systems. We’ve made tremendous progress over the centuries, and yet the way we treat criminals today is still an abomination for which future generations will rightfully scold us. I was therefore pleasantly surprised – initially at least – to learn about a revolutionary proposal coming from Rebecca Roache. There’s a write-up here, and the headline sure grabs the attention: “Prisoners could serve 1,000 year sentence in eight hours”. The proposal:

Future biotechnology could be used to trick a prisoner’s mind into thinking they have served a 1,000 year sentence, a group of scientists have claimed.

Philosopher Rebecca Roache is in charge of a team of scholars focused upon the ways futuristic technologies might transform punishment. Dr Roache claims the prison sentence of serious criminals could be made worse by extending their lives.

Speaking to Aeon magazine, Dr Roache said drugs could be developed to distort prisoners’ minds into thinking time was passing more slowly. “There are a number of psychoactive drugs that distort people’s sense of time, so you could imagine developing a pill or a liquid that made someone feel like they were serving a 1,000-year sentence,” she said.

A second scenario would be to upload human minds to computers to speed up the rate at which the mind works … “If the speed-up were a factor of a million, a millennium of thinking would be accomplished in eight and a half hours … Uploading the mind of a convicted criminal and running it a million times faster than normal would enable the uploaded criminal to serve a 1,000 year sentence in eight-and-a-half hours. This would, obviously, be much cheaper for the taxpayer than extending criminals’ lifespans to enable them to serve 1,000 years in real time.” (source)

These innovations – or should I say imagined innovations since the technologies aren’t available yet – are defended on the basis of cost, humanity and proportionality.

  • Radically reduced prison sentences are cheaper for society, and more humane for the prisoner.
  • By tricking prisoners’ brains into believing that they serve a very long time while in fact only serving a short time, we’ll make it possible to offer them a life after prison.
  • By making it possible to impose very, very long sentences – or rather the chemically induced experience of very long sentences – one could make punishment truly proportional and retributive. Retribution is currently limited at life sentences (for those civilized countries that don’t impose the death penalty). When drugs will make it possible to impose sentences that last much longer than a lifetime, one can punish the very worst criminals proportionally to their crimes. Hitler could be locked up for ages. Roache writes about a particularly horrendous crime punished by an “almost laughably inadequate” sentence of 30 years in prison. “Sufficient punishment” is what this is about, and Roache is quite explicit in adopting the retributive and proportionality approach to justice.

There’s an obvious contradiction between these justifications. While it’s certainly good and humane to give prisoners a life after their sentences – no matter how long these are (or are perceived to be) – tricking people into believing that they are hundreds of years in prison is actually kind of cruel. And there’s no need for this cruelty. I’ve argued elsewhere that the role of retribution, proportionality and desert in criminal punishment should be strictly limited, and certainly not expanded as in Roache’s proposal. The number of months or years a person is to be imprisoned should be determined by the need to incapacitate him or her and to protect society from harm. Tricking people into believing that they have been in jail for thousands of years and then setting them free after a few hours will only create resentful human beings in the prime of their lives, willing and able to take revenge on the society that has punished them in this way. Of course, the endorsement of retributivism is not a necessary precondition for favoring the proposed technologies, and with some tweaking the technologies may actually do some good. We’ll see, perhaps.

More posts in this series are here.

Crime and Human Rights (19): Why Do We Impose Criminal Punishment?

It seems so obvious that we must punish criminals that we hardly think about the reasons why. And then when we do think about some of the possible reasons, we find that they are of dubious quality, and we start to wonder whether criminal punishment can be justified at all.

1. Retribution

The first reason that springs to mind is retribution: we impose punishment – i.e. pain, suffering or unpleasant consequences – because that is what criminals deserve. Punishment is a deserved and proportionate “repayment” for the crime that has been done. And indeed, the fact that wrongdoers deserve some form of proportionate punishment or unpleasantness seems to be a deep-seated intuition. But if we want to use this notion of retribution as a justification of criminal punishment, we need to define what exactly it is that a particular criminal deserves. Because if it turns out that we can’t decide, in a non-arbitrary way, what it is that a criminal deserves, then it’s useless to place desert and proportional repayment at the heart of the justification of criminal punishment.

And we can’t decide. We can’t determine which punishment fits which crime. Retribution naturally tends towards lex talionis (an eye for an eye). For two reasons: first because that is the easy answer to the question of deserved punishment, and second because of the origins of the word “retribution” (retribuere in Latin means to restore, to give back). However, the brutality of lex talionis is no longer acceptable these days, which is why retribution theorists have tried to find another, less brutal way of determining the deserved punishment. Proportionality is then considered to be a just retributive principle: the punishment must not be equal to the crime, but the gravity of the punishment must be proportional to the severity of the crime; more serious crimes should entail more severe punishments.

Proportionality, like the element of desert in the basic structure of retribution, is hard to argue with, but it’s also useless. It can justify any type of punishment because it doesn’t provide a non-arbitrary starting point or end point of severity. Hence, it fails to answer the basic question raised by retribution: which punishment fits which crime? If this question can’t be answered, then retribution can’t be a justification of criminal punishment.

True, retribution can still be used negatively: some punishments clearly don’t fit the crime, and are not deserved. A $10 dollar fine for a murder, or execution for shoplifting are examples. But a theory of punishment that can only say which punishment are not justifiable is clearly not a complete justification of criminal punishment. After all, such a theory doesn’t exclude the possibility that all punishments are not justifiable.

2. Deterrence

With retribution out of the way, we can now consider an alternative justification of criminal punishment. We may decide to punish criminals because in doing so we instill fear in other – potential – criminals and therefore deter future crime. Punishment is then a means to protect society against crime. It’s a stop sign. And, like retribution, this seems to be, at first sight at least, a convincing justification. Like it is intuitively correct that a criminal deserves some kind of punishment, it is also intuitively convincing that people, when faced with the risk of punishment, will have a strong incentive to abstain from crime.

However, we again see that the initial appeal of this justification doesn’t survive closer scrutiny. First, there’s a lack of conclusive empirical evidence for the existence of a deterrent effect. Even the strongest possible punishment – death – doesn’t seem to deter. Part of the reason for this is the fact that crime often isn’t a rational calculation of risks, costs and benefits. And when it is, low conviction rates may have more weight in the criminals’ calculations than the severity or unpleasantness of unlikely punishments.

Another reason why deterrence cannot justify criminal punishment is its inherent immorality: to deter is to use people as means to reduce crime, and that kind of instrumentalization is morally unacceptable.

3. Incapacitation

If we can’t deter, maybe we can incapacitate, and justify criminal punishment on that basis. Incapacitating a criminal allows us to protect society without instrumentalizing the criminal (we don’t use the criminal and his punishment as a fear-instilling mechanism; we simply keep the criminal away from his or her future victims).

Again, being able to stop criminals from reoffending is intuitively appealing, but it isn’t enough to justify a system of criminal punishment. If we should decide that incapacitation justifies criminal punishment, we’re still left with the task of deciding the type of criminal punishment it actually justifies. Which actions are necessary and just forms of incapacitation? Like retribution or proportionality, incapacitation leaves open a very wide array of possible punishments: cutting off the hands of thieves, house arrest, ostracism, banishment, imprisonment, chemical castration, etc. A theory that can’t help us to choose among those options can’t possibly be a complete justification of criminal punishment. Ideally, we don’t want a justification of punishment that allows all or most types of punishment. And again, the fact that some forms of incapacitation are clearly not acceptable isn’t ground enough for a justification based on incapacitation, like the fact that some punishments are clearly not deserved isn’t ground enough for a justification based on retribution.

4. Symbolic confirmation of social rules

Perhaps a more promising justification of criminal punishment is based on the social role of punishment. When we punish criminals for their crimes, we may not intend to give them what they deserve, incapacitate them or deter others; we may instead engage in a bit of theater. Which, by the way, is also one of the reasons for having public trials. The public condemnation of wrong actions is a symbolic confirmation of social rules, and this confirmation has an educational function. It teaches people the values and norms of society, in the hope that they internalize these values and norms through repeated public and symbolic confirmation. Furthermore, the punishment of crimes affirms not just certain values and norms (e.g. don’t steal or murder) but the necessity of peaceful social cooperation and therefore the necessity of society itself.

Like desert, protection, deterrence and incapacitation, these are all fine objectives. However, a justification of criminal punishment based on its symbolic role faces the criticism of instrumentalization, as in the case of deterrence. Especially when the stated objectives – affirmation of norms and society – can be reached through other means.

5. Signaling

And the same is true for the justification of punishment based on the need for signaling. Society, and especially the representatives of society, need to show that they care about victims of crime. However, they don’t have to do so at the expense of criminals. Still less acceptable is the use of punishment as a signal of authority. Punishment can’t be justified when it is merely a manifestation of power by those in charge.

6. Healing and pacification

Punishment can be justified as therapy for the victims of crime, their relatives and friends, and even society as a whole. It’s a fact that punishment gives some satisfaction to victims, and responds to their sense of justice. It can also channel anger and revenge away from the more disturbing forms of those emotions, thereby preventing street justice and vigilantism. However, there’s a disturbing circularity to this justification: because people expect punishment, we should administer it, but because we administer it people continue to expect it. Also, when trying to channel emotions such as anger and revenge into socially acceptable forms we unconsciously promote them, whereas maybe we should try to limit those emotions as much as we can.

7. Rehabilitation

The rehabilitation of the criminal in the sense of his or her moral regeneration is no longer a fashionable justification of punishment. For several reasons: it’s expensive, and it upsets our sense of equal justice (successful rehabilitation can imply a radically shorter sentence). Also, some psychiatric excesses have been successfully ridiculed in movies such as A Clockwork Orange and One Flew Over the Cuckoo’s Nest.

In any case, the point is moot whether or not rehabilitation can be a successful justification of criminal punishment, since society has practically given up on it.

Conclusion

It’s extremely difficult to find an acceptable justification of criminal punishment. Hence, I strongly suspect that this is one of those social practices that seems perfectly normal and acceptable to contemporaries but also one for which we will be universally condemned by future generations.

Unsurprisingly, given the lack of solid justifications, people start to look for other reasons explaining the persistence of the practice. There’s talk of the new Jim Crow and criminal punishment being used to maintain oppressive social structures. Maybe it’s time to reread Foucault.

Still, it’s uncontested that society can’t function and people can’t thrive without respect for certain norms, especially the norms included in human rights. Those norms are regularly violated, and a society has the right and the duty to enforce compliance. A rejection of this right and duty means tolerating victimization and rights violations. But if punishment isn’t the right way to enforce compliance, which is? We can’t just accept punishment and to hell with justifications, because punishments do impose costs, both on the criminals being punished and on society as a whole. Imposing costs without justifications isn’t the right thing to do. Also, an unjustified system of punishment will lack legitimacy and will therefore be ineffective, something which will further undermine its legitimacy.

Hence, we’re left with the following choice: look harder for a justification, or find an alternative, non-punitive system of norm enforcement (maybe a system that is able to prevent violations of norms). Only half-jokingly: why not give law-abiding citizens prize money?

More here.

Crime and Human Rights (18): The Cruelty of Life Imprisonment Without Parole

My dismissal of capital punishment on moral grounds shouldn’t be understood as implying that this type of punishment is the worst possible one or that I’m ready to accept any other sentence in order to avoid executions. Life imprisonment without parole (LIWOP), for example, is often advanced as a good alternative to capital punishment and a means to convince people to drop their demand for that sentence. That makes LIWOP seem almost benign, which it isn’t. It’s particularly cruel, for reasons I discuss below.

That is why I tend not to argue as follows: capital punishment is bad because there is a less cruel punishment available – LIWOP – that does much of the things capital punishment is supposed to be doing (incapacitation, deterrence etc.). I argue instead that there are other reasons, beside overreach, not to use capital punishment. However, this post is not about those reasons, but rather about the reasons why we should also not use LIWOP.

Of course, “death is different” and capital punishment is particularly cruel. But LIWOP is also cruel, albeit mostly for other reasons. In one respect, it’s cruelty is similar to that of capital punishment. It’s irrevocable. The absence of parole means that “life” really is “life”. Of course, there’s often the possibility of clemency or appeal. But given the general “tough on crime” mentality among politicians and prosecutors, clemency for LIWOP cases is very unlikely, as are possible extensions of the right to appeal.

We also see, in the U.S. for instance, that clemency is more likely to be granted in capital cases than in cases of LIWOP since LIWOP is supposed to be “so much less cruel” (although also in capital cases the frequency of clemency is going down, most likely for the same “tough on crime” reason). Also, appeal procedures are much more developed in capital cases than in LIWOP cases. And when there is a successful appeal in a LIWOP case – for example because of new evidence of errors in the handling of the case – then these new elements are much less likely to be considered important enough to review the sentence, again because LIWOP is so much less “cruel”. Some people even argue that it is better to get a death sentence in the U.S. than LIWOP, because the appeals possibilities and clemency success rates are much higher. Especially innocent defendants have a much higher chance of getting their names cleared and escaping their sentence when they are convicted to die. Talking about irony.

Why does irrevocability make LIWOP particularly cruel? Some people say that LIWOP is a death sentence without an execution date. That in itself, however, may not make LIWOP cruel – you could say that all human beings are under a death sentence without an execution date, by the simple fact of human mortality. Still, LIWOP is a sentence to die in prison. It removes any prospect of change, rehabilitation or redemption. Whatever the prisoner does during his sentence, nothing is going to make any difference. Society tells these people that whatever they do, however much they try to redeem themselves, society’s not going to care. It’s not a sentence without an execution date, it’s an execution without a date: we basically tell these people that their lives are over. And we show this by withholding recreational and educational opportunities. Those resources, we say, are limited and better spent on prisoners who will get out some day. So that makes redemption not only useless but also impossible. It’s a self-fulfilling prophecy: we believe that they are irredeemable, and hence we treat them in such a way that they become irredeemable. If you don’t think that’s cruel, check your moral compass.

Opponents of capital punishment such as myself have to issue a mea culpa here. Our opposition has undoubtedly forced many more people into LIWOP. The number of LIWOP cases in the U.S. has risen dramatically, while the number of executions has fallen. One in every 35 prisoners in the U.S. is currently serving LIWOP (that’s about 41,000 people). This is the perverse and counterproductive result of well-intentioned activism. (See here for more counterproductive human rights policies). And it’s likely to become even more perverse: LIWOP cases, which tend to become more numerous as an alternative to capital punishment, don’t offer the same resources in terms of legal representation as capital cases, because people think there is less at stake, even when that’s clearly not true. Hence, a higher risk of miscarriages of justice, which are then harder to put right because of the lower probability of clemency and the less developed appeals procedures that also result from the idea that less is at stake.

So, what’s the solution? Well, obviously life with the possibility of parole. An argument in favor of LIWOP when compared to LIWP is that LIWOP is necessary for reasons of incapacitation. That is indeed a worthy goal of criminal punishment – if not the only goal -and some people do indeed deserve to be incapacitated for a very long time, perhaps even permanently. However, LIWP can also produce permanent incapacitation – by withholding parole when necessary – and can do it better because it can limit it to those prisoners for whom it can be shown, on an ongoing basis, that they are still dangerous. LIWOP means taking a decision about dangerousness once and for all, and then forgetting about the prisoner. The problem is that you can’t, at the moment of sentencing, make the decision that someone is going to be dangerous for the rest of his or her life. We simply don’t have the knowledge for such decisions. Psychology and psychiatry are not advanced enough yet, and will probably never be. Dangerousness has to be monitored continuously. People do change, except of course when the prison regime is such that they don’t get the opportunity or when the sentence is such that they don’t get the incentive.

And existing problems with parole (incompetent or lenient parole boards) are not a sufficient reason to favor LIWOP over LIWP. They are a reason to do something about those problems.

A country overview of the use of LIWOP is here and here.

Crime and Human Rights (17): A Criminal’s Human Rights, Some Q & A

1. Does the necessity of enforcing the law and ensuring compliance with the law justify extreme forms of punishment?

No. It’s not because you have committed a crime that you lose all your rights. The severity of criminal punishment should remain within certain bounds, and the need to be tough on crime doesn’t give you permission to do whatever it takes to be tough on crime. Most laws will never be respected in all cases anyway. A fetishistic attitude towards law enforcement isn’t helpful or necessary. Reasonably good enforcement is good enough. Convicting or deterring the marginal criminal is not a benefit that outweighs the harm done to the rights of criminals by the systematic imposition of extreme punishment (and extreme punishment has to be systematic if it is to have the required deterrent effect; punishing only one criminal in an extreme way won’t do any good, and some say that even systematic punishment has no deterrent effect).

2. If extreme punishment is not allowed, is it allowed to punish like with like?

Again, no, and for the same reasons as those given above. Lex talionis is unacceptable. Human rights are not conditional upon respect for the law, and the fact that punishment inevitably leads to some rights restrictions doesn’t imply that criminals lose all their rights.

3. But if criminals, by being criminals, don’t forfeit their human rights, how can one justify punishments such a incarceration or monetary fines which incontestably violate criminals’ human rights?

Those punishments can be justified, not as violations of rights but as limitations of rights. We need to limit the rights of criminals in order to stop them or deter them from violating the rights of others. In this respect, criminals are not treated differently from someone who yells “FIRE” in a crowd.

4. Is it justified to impose more severe punishments for the same type of crime on people who are more difficult to deter?

No again. Like the need to deter or stop crime doesn’t trump the human rights of criminals, it also doesn’t trump the rule regarding equality before the law.

There’s a related post here about the human rights of Adolf Hitler. More posts in this series are here.

Crime and Human Rights (16): Gun Rights and Gun Control, Again

I didn’t feel I needed to comment on the recent Colorado shooting. Although this blog is about human rights it deals with the topic on a rather abstract level and it’s not my purpose to keep track of and discuss every major rights violation. However, the Colorado incident – as usual in such cases – has rekindled the old debate about gun rights and gun control, and since this debate is suitably general and abstract I should maybe reiterate my stance on the issue (a previous post is here).

The right to own and use a gun or many other types of firearm is viewed by many Americans as a right that is equivalent to other constitutional rights such as the right to free speech and to freedom of religion. This view seems to be exclusively American. International human rights law doesn’t include the right to own, carry or use firearms, and neither do other national constitutions (at least to my knowledge).

Gun rights have resulted in widespread gun ownership in the US (almost 200 million guns are in private hands, and according to the most recent Gallop poll 47% of Americans own a firearm). Which in turn has, according to many, an effect on violent crime in the US. Americans kill one another at a much higher rate than do residents of comparable western European nations, and they use firearms more frequently to do so (some countries in the developing world, and especially in Latin America have even higher murder rates in general and higher rates of gun deaths in particular). This gap with other western countries persists despite a roughly 40 percent drop in the US homicide rate in the last 15 years or so. It’s not hard to imagine the possibility of a causal link between these two facts about the US.

Of course, incidents such as the Colorado shooting occur in all countries and there’s probably no reason to assume that strict gun control and the limitation or abolition of gun rights would stop such incidents from happening. But the discussion we’re having is whether the freedom to possess firearms and the resulting massive ownership of firearms is likely to result in a larger number of firearm deaths. Intuitively, one would say yes. If there are more guns around, chances are higher that more of them will be used, and if more of them will be used, more of them will be used against people. There’s also some evidence that the presence of guns makes men more aggressive and hence more likely to use them.

Gun rights advocates point at a number of countervailing arguments. What about the argument that guns and gun rights can’t be blamed for murder rates because those rates have dropped sharply in the last decades while gun laws are far looser than they were twenty years ago? Well, I guess nobody claims that guns and gun rights are the only cause of high murder rates. More effective law enforcement, cultural changes etc. did reduce gun death rates and crime rates in general, but none of this proves that those rates wouldn’t have dropped even further if gun laws had been stricter. The fact that gun death rates remain high in the US even after the recent downward trend may indicate that guns are at least partly to blame for those rates.

And what about the deterrent effect? The argument is that more guns mean less crime. At first sight, that sounds convincing: when potential criminals know that there’s a high probability that their potential victims carry or possess guns, they may think twice before deciding to go ahead. Still, if this is true, then there must be something horribly wrong with the American psyche: if even a supposedly massive deterrent effect still produces crime rates that are higher than in other comparable countries that don’t have the same deterrent, then one shudders at the thought of what would happen when guns were to be removed from American society. I for one can’t accept that the American mind is like this.

Then there’s the old saying that guns don’t kill people, that people kill people, and that we shouldn’t obsess over inanimate pieces of metal. However, by the same logic we shouldn’t try to ban atomic weapons or biological weapons. True, banning weapons of any kind won’t do a lot to diminish humanity’s inherent tendency towards aggression (although it may do something – see the remarks above). Ultimately, aggression needs a cultural, educational and psychological revolution. But while we wait for that, it may not be a bad thing to take some of the tools of aggression away from the hands of some aggressors.

And finally, there’s this rather weird argument: liberal Americans who try to take away people’s guns alienate these people from liberal causes.

In 2010, I drove 11,000 miles around the United States talking to gun guys … and I met many working guys, including plumbers, parks workers, nurses—natural Democrats in any other age—who wouldn’t listen to anything the Democratic party has to say because of its institutional hostility to guns. I’d argue that we’ve sacrificed generations of progress on health care, women’s and workers’ rights, and climate change by reflexively returning, at times like these, to an ill-informed call to ban firearms. (source)

I guess I’m not the only one who finds this hard to believe. As if rural white men would suddenly vote Democratic and accept women’s rights and the lot if only we let them keep their firearms. Chances are that people who like firearms are the kind of people who also don’t like progressive or liberal causes. The claim that they won’t vote for politicians supporting those causes merely because those same politicians look like they want to impose gun control – and not because they simply don’t like those politicians – is rather too far-fetched for my taste.

Crime and Human Rights (15): The Criminalization of Poverty

A lot of jurisdictions have so-called “public order laws” making it illegal to do what poor people do, and therefore in a sense making it illegal to be poor. “Crimes of misery” include begging, loitering, littering, sitting on sidewalks, lying down on benches, urinating in public, selling in the streets without a license and other things poor people, and especially the homeless, tend to do and often have no choice but doing. Some of those activities may be a nuisance and an unpleasant sight, and even blameworthy when non-poor citizens engage in them, but they’re not an avoidable choice when you’re poor and homeless.

Hence, public order laws disproportionately target poor homeless people who, in addition, have a hard time respecting them. Poverty and homelessness unavoidably result in violations of the law. Ostensibly, there is nothing discriminatory about such laws. If a millionaire were lying on a sidewalk, he would also be in violation of the ordinance. In the words of Anatole France, “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.” But, of course, the rich have better things to do.

If activities that are unavoidable parts of life on the streets are forbidden, then it’s not outrageous to claim that deep poverty itself is a crime. If you add to this the fact that many of the homeless are mentally ill, chronically alcoholic or drug addicted, then it’s obvious that their daily conduct will inevitably put them on the wrong side of the law. Even people who try to assist the homeless are sometimes legally forced to stop. Communities often don’t welcome charities that attract homeless people. They fear that the neighborhood may become less appealing as a result. Hence they impose rules limiting the number of meals that soup kitchens may serve, use zoning laws to stop churches from serving food, issue park ordinances outlawing food distribution in public places etc.

It’s obvious that the criminalization of poverty is another poverty trap. A criminal record, jail time or fines won’t help if you’re struggling to get off the streets.

And it’s not just the homeless. Low-wage workers are often subjected to constant suspicions of theft and drug use: they are monitored with CCTV during the working day, they are searched when leaving their shift and tested for drugs when they’re hired. Welfare recipients are fingerprinted, photographed and interrogated about their attempts at finding a job or about the true paternity of their children, supposedly to prevent welfare fraud. Access to public housing comes with a drug test. Etc.

The war on poverty is all too often a war on the poor.

More posts in this series are here.

Human Rights Promotion (7): The Human Rights of Adolf Hitler

Suppose Hitler didn’t kill himself and was captured alive by the Russians in Berlin, or by Israeli commandos in South America. What would we be morally allowed to do to him if we had managed to capture him? Does a person like him have human rights that we have to respect? Of course. Whatever dehumanizing name you wish to call him, he was a human being like the rest of us, and we have to deal with that fact. Every human being has rights and those rights are not conditional upon good behavior. No one has less or more rights than the next person. It’s not because someone has committed horrible crimes that we are allowed to take away his or her rights.

Hitler’s rights include a right to life. This right is quasi-absolute and can only be limited if that’s the only way to save other lives. So for instance, we are allowed to shoot him on the spot if he resists arrest and threatens to kill us or others (such as hostages). But suppose Hitler is captured alive and is no longer a threat to the lives of others. Shooting him is then not allowed because that would be an extrajudicial execution.

Are we allowed to execute him after a proper trial? Maybe a living Hitler who’s kept in prison would still be able to encourage his followers to continue their murderous rampage and maybe that’s a sound argument for executing rather than imprisoning him. But I think that’s a far-fetched scenario. Only in the unlikely case that there is a real risk of an imprisoned Hitler ordering murder and that executing him is the only means to remove a threat to the lives of others, would his execution be allowed. This is equivalent to the case in which Hitler is holding hostages. However, even in this case, going after Hitler’s followers would be more effective.

So capital punishment is not an option. Remember also that other justifications of capital punishment aren’t available: we are not allowed to deter future criminals by killing present criminals, not even if it works, since that would be an instrumentalization of a human being. Going down that road ultimately leads to the devaluation of all human life. Life imprisonment without parole then? Not an option either because even Hitler can be rehabilitated. The problem with rehabilitation is that you never know who can do it until they do it. You can’t say in advance that some people are beyond rehabilitation.

Some form of criminal punishment is obviously warranted since Hitler acted with intent, knew the consequences of his actions, caused the consequences of his actions, wasn’t forced to act, was aware of alternative courses of action, violated existing law and was found guilty of such violations after a fair trial (ex hypothesi). Given the unavailability of capital punishment and life without parole, some fixed term prison sentence seems to be the only remaining option. And I know that’s a huge anticlimax for most of us.

But what do we want to achieve with that sentence? Retribution? Even if retribution is a justified end of punishment – which it isn’t since we should in general try to be better than criminals – a fixed term sentence is hardly retribution for Hitler: on any account, this is less than what he deserves. And more than this is ruled out (see above). Not only aren’t we morally allowed to execute him, but even executing him doesn’t seem enough. If anything, he deserves to be executed millions of times over, which we obviously can’t do even if we were morally allowed to do it.

Perhaps we want to achieve incapacitation. That’s reasonable enough in this case. You can hardly allow Hitler to walk the streets. But again, this is truly anti-climactic. It leaves us with our anger and sadness. But I guess there’s no way to leave our anger and sadness behind in this case. The morale of this story is that the same is true in many other, less extreme cases as well. We tend to be too ambitious when punishing criminals.

Crime and Human Rights (14): The Limits of the Law

We need rules to live together in a spirit of respect for each other’s rights, freedom and equality. We need to tell people what they can, cannot or should do in order to respect the rights, freedom and equality of others, and we need to coerce people if they don’t respect these rules.

It seems that the best way to do this is to translate these rule into laws and then to use a justice system and a police system to enforce respect for these laws. That’s obviously not the only way to do it – education, tradition, social control, incentives etc. are other ways – but it’s one that has proven to be successful (yet not perfectly successful since legal prohibition of acts and enforcement of this prohibition never completely prevent those acts and may even backfire). If that is correct, then laws and their enforcement institutions are necessary parts of modern life.

So, these are, in broad strokes, the limits of the law: laws should protect people’s rights, freedom and equality, no more, no less, and nothing else. However, once the institutions of the law and of law enforcement have been created, there’s always the possibility and perhaps even the certainty that they will be used not to protect rights, freedom and equality, but for other purposes, or for the enforcement of controversial and exotic interpretations of rights, freedom and equality. That’s one way in which the law can overstep its limits or, if you want, become corrupted. (I focus here on the corruption of the law, not the law enforcement institutions. The latter is for another time).

Quantitative limitations

But a system of law can overstep its limits in several other ways as well. The purpose of the law – rights, freedom and equality – is a limitation, but it’s a limitation that requires other limitations, for example a quantitative limitation. There’s always a tendency for the number of laws to become too large. That’s a problem because a violation of this quantitative limitation has qualitative consequences for the ability of the system of law to serve its purpose, namely the protection of rights, freedom and equality:

  • When laws become too numerous, it becomes difficult for people to know what is and is not legal. As a result, people may find that they are ambushed by the law. When people are ambushed in this way, they risk losing their freedom through no fault of their own, and that means that the system of law doesn’t perform its main function, namely protecting rights, freedom and equality. Moreover, after having endured or seen this kind of ambush, people will start doubting the value of the whole system of law. This undermines the credibility of the system, making it again difficult to use it for its intended function.
  • When laws become too numerous, the enforcement institutions will have an increasingly difficult task. Some laws will no longer be enforced, or will be enforced in an unsatisfactory or selective way, something which again destroys the credibility and hence the effectiveness of the system of law and again has consequences for the purpose of the system.
  • When laws become too numerous, it’s likely that the focus of the law will be lost. People have a limited number of rights, and there are a limited number of ways in which people can infringe on each other’s freedom and equality. Hence, the number of laws should also be limited. When there are more laws than necessary, people will be coerced for other reasons than rights, freedom and equality, and they will rightly resent this. This resentment will again be directed at the law in general, including the laws that are necessary for rights, freedom and equality.

Formal limitations

It’s not only the number of laws that can force the system of law beyond its limits. The nature of laws is also important. After all, just as a vast body of law can coerce too much, so can one very sweeping law. Laws should have certain characteristics if they are to stay within their limits:

  • Laws should be precise: they should be targeted at very specific threats to freedom, equality and rights, and not at vague threats or at threats to something else. For instance, a law that makes hate speech illegal, but doesn’t specify hate speech, is too vague. It risks coercing too much and hence destroying rights, freedom and equality rather than protecting those values.
  • Laws should also be effective: they should have a proven track record of countering specific threats to rights, freedom and equality. Otherwise they should be repealed. It often happens that laws are counterproductive: rather than countering a specific threat to rights, freedom and equality, they enhance it. For example, capital punishment for murder may make it more likely that witnesses are murdered.
  • Laws should be proportional. They should not provide a punishment for those threatening rights, freedom and equality that produces a greater threat to the rights, freedom and equality of the punished criminals (and their relatives etc.). And they should not produce other unwanted side-effects that have an impact on rights, freedom and equality. An example of a law – or better a set of laws – that creates more harm than it prevents is the “war on drugs”. Maybe this is a set of laws that effectively suppresses drugs, but in doing so it disproportionately harms rights, freedom and equality in other places (it leads to excessive incarceration of ethnic minorities).
  • Laws should not be secret, retroactive (a retroactive law is one that punishes acts that have occurred before the law came into force) or unstable (they should not change all of the time). Otherwise, it becomes very difficult for people to respect the law, creating again the risk of ambush and the consequent loss of credibility for the whole system of law.
  • Laws should not be bad law. They should not be too complex, incomprehensible or contradictory. Otherwise they will have the same effect as secret, retroactive or unstable laws.
  • And, finally, laws should be necessary. If there’s a non-coercive tool to protect rights, freedom and equality that is equally effective and proportional, then this tool should used. A law, after all, because it is coercive, is a violation of freedom. Laws can therefore only be used if they are the only available means to produce more freedom than they take away, or if they are more effective.

Content limitations

Another limitation of the law is that it can only be designed to serve rights, freedom and equality. If people want to waive or destroy their own rights, freedom and equality, the law should not force them to do otherwise. In other words, the law should not be paternalistic, although there may be room for some form of soft paternalism in the case of people who obviously don’t understand their own interests or who have a hard time acting on their interests. If paternalism can enhance autonomy, why not. I won’t develop that point in this post, however.

Some also argue that religious people, or people holding other, non-religious but substantial moral convictions that are very controversial, should avoid using those religious or moral convictions as a justification for laws. Laws should in other words be neutral in order to avoid coercing people in ways that they can never accept. I rejected this argument here, so in my view that’s not a proper content limitation of the law.

If we want to keep the law within the limits stipulated here, we have to be aware of the possible roads to corruption. First, legislators should think, in every legislative decision, about the ways in which the proposed law is necessary and effective for the protection of freedom, equality and rights. Next, they should respect some formal and content limitations, as well as quantitative ones. And finally, they should have a coherent understanding of the nature of freedom, equality and rights. That, of course, in controversial – different people will always have different views of the proper meaning of these concepts. However, democratic deliberation and public reasoning can at least guarantee majority support for a particular interpretation of this meaning, and make it possible to avoid private and self-interested meanings to sneak into the law.

Crime and Human Rights (13): What’s the Use of Criminal Punishment?

Criminal punishment, even in our non-medieval and so-called Enlightened societies, is the deliberate, intentional and organized imposition of harm on those we believe to be guilty of a crime. That remains the case even if we assume that those who are punished are in general guilty and that all necessary preconditions for criminal punishment are present (for example, that people are punished only after a fair trial, conducted by those authorized to conduct it; or that only those people aware of the moral significance of their actions are punished).

Given this imposition of harm, it’s important to be able to justify our systems of criminal punishment. Usually, but not always, the justifications people offer invoke the need to protect the rights of victims – actual or potential – but it’s far from certain that any justification can withstand even superficial criticism. Let’s look at the different justifications in turn. I think we can distinguish at least 5 common types of justification:

  1. Internalization
  2. Deterrence
  3. Rehabilitation
  4. Incapacitation
  5. Retribution

I’ll first offer a more or less neutral description of these different justifications, before criticizing them.

Justifications of criminal punishment

1. Internalization

The system of criminal punishment is justified because it is an expressive affirmation of shared values within a community (in other words, it’s a form of signaling). This affirmation serves to internalize shared values. When the members of the community have successfully internalized the shared values of the community, it’s assumed that crime will occur less frequently.

2. Deterrence

According to this second type of justification, criminal punishment is justified when it can be shown that the threat and practice of punishment is necessary for the prevention of future crimes, not through internalization of the norms expressed in punishment, but through fear of punishment. Punishment is supposed to reduce the prevalence of crime because it works as a threat. It’s assumed that most rational people who perceive this threat engage in risk analysis, weigh the possible costs and benefits of an intended crime, and conclude that the costs outweigh the benefits (the cost evaluation is a combination of likelihood of the threat – i.e. enforcement – plus severity of the threat). As a result, people reduce their willingness to carry out the crime.

3. Rehabilitation

Unlike internalization (1) and deterrence (2), this third type of justification does not aim at a general prevention or decrease in crime. Criminal punishment is justified because it prevents a particular criminal from engaging in future crimes. Prevention occurs because it’s believed to be possible to change the criminal’s propensity for crime through rehabilitative efforts within the penal system.

4. Incapacitation

This fourth type of justification also doesn’t aim at a general prevention or decrease of crime. Punishment is justified because it prevents a particular criminal from engaging in future crimes, not by way of rehabilitation but by way of incapacitation, which means either incarceration or execution.

5. Retribution

Criminal punishment is justified because criminals deserve to be punished in a certain way.

Consequentialism and deontology

Justifications 1 to 4 are consequentialist in nature: punishment is justified because of the good consequences that result from it, or because of the bad consequence that would result from our failure to punish. They all assume that punishment can prevent crime and hence protect victims – real or possible victims. Justification 5 is of a more deontological nature: punishment is a good in itself in the sense that it is required by justice irrespective of the likely consequences.

Contradictions between justifications

Notice how these different justifications may be incompatible.

Contradiction between (3) and (5)

Rehabilitation (3) means, by definition, flexible sentencing. Penal officials and judges need to have discretion, otherwise they can’t differentiate between successfully rehabilitated prisoners and others. Such discretion typically invokes anger among those who adopt a retributivist justification (5). Retributivism focuses on just desert in sentencing: a criminal should get the sentence he or she deserves, and usually this means a sentence that is in some way proportional to the gravity of the crime and to the harm done to the victim and to society. That is why retributivists demand uniformity in sentencing, and sometimes even mandatory sentencing. The discretion inherent in rehabilitation provokes feelings of unfairness among retributivists.

Contradiction between (4) and (5)

But also incapacitation (4) is often at odds with retributivism (5). For example, incapacitation in the form of incarceration may be less than what the criminal is supposed to deserve. Perhaps the criminal deserves to die according to the retributivist.

Contradiction between (2) and (5)

Retribution (5) can be incompatible with deterrence (2) because effective deterrence may require punishment that is more severe than the punishment that the criminal deserves. For example, there’s no reason why those who believe in deterrence should reject capital punishment for petty theft if it can be shown that such a punishment effectively deters this crime and that the benefits of deterrence outweigh the harm done by the execution. Something more is required to reject such a punishment, and that’s where retribution comes in. Retributivists would claim that petty thieves don’t deserve to die.

Contradiction between (3) and (4)

And a last example of a contradiction between different types of justification of criminal punishment: incapacitation (4) may make rehabilitation (3) more difficult. After all, it’s not obvious that prison is the best locus for rehabilitation. On the contrary, it’s often argued that prison is a school for criminals. Rehabilitation may then require a sentence such as a fine or GPS tracking.

A scale of decreasing ambition

We can view justifications 1 to 5 as being on a scale from most to least ambitious.

1. Internalization

Internalization (1) is obviously the most ambitious since it promises moral education of the citizenry and moral compliance with the law. The obvious problem here is that the desired outcome is highly uncertain, perhaps even utopian. It’s not sure that this uncertain objective justifies the very real harm imposed by criminal punishment.

2. Deterrence

Deterrence (2) is somewhat less ambitious since it discards the educational function of punishment as highly unlikely and aims instead at grudging compliance based on fear (as opposed to moral compliance based on conviction). Still, it’s relatively ambitious since it expects a society wide reduction in crime resulting from fear and rational risk analysis on the part of potential criminals. The data have shown that deterrence as well is overambitious.

3. Rehabilitation

Rehabilitation (3) in turn discards some of the unrealistic assumptions of deterrence (2), such as rationality on the part of future criminals and strict enforcement of the law, and tries to avoid some of the counterintuitive consequences of deterrence (2), such as the tendency to increase the severity of punishments resulting from the need to tip the scale in the risk analysis of criminals. It also tries to avoid the immoral instrumentalization inherent in deterrence. Moreover, it’s not clear that deterrence works, empirically.

Rehabilitation (3) is less ambitious than internalization or deterrence because it focuses on preventing only certain particular criminals from engaging in further crimes. There’s no society wide ambition anymore. However, the success of rehabilitative efforts during the past decades, as measured by reductions in recidivism, is mixed, to say the least. It’s correct to say that most criminologists have become somewhat disenchanted with rehabilitation. And there’s also some doubt about the morality of some rehabilitation techniques (especially those that have been lampooned in A Clockwork Orange). Which is why many have scaled back their ambitions even more and now focus on incapacitation (4).

4. Incapacitation

Let’s limit our discussion of incapacitation (4) to incarceration, since capital punishment is fraught with many other problems that have been widely discussed before on this blog. The problem with incapacitation is that it doesn’t have a clear boundary. Taken by itself, incapacitation theory could justify life imprisonment for petty crimes. In fact, the whole tough on crime philosophy can be seen as an exaggeration of incapacitation theory following the perceived failure of rehabilitation.

5. Retribution

This lack of a boundary in incapacitation theory (4) has led people to fall back on perhaps the oldest and least ambitious justification of criminal punishment, namely retribution (5). Retribution can be seen as a type of justification of criminal punishment that is entirely without ambition: punishment is inflicted for its own sake, not for the possible benefits it can produce. Criminals should be punished because it’s the right thing to do and because they deserve it, not because some aim or purpose can be served by it. This element of desert allows us to avoid both punishment that is viewed as being too severe – as in incapacitation (4) and deterrence (2) – and punishment that is viewed as being too lenient – as in rehabilitation (3).

Retributivism in fact abandons the pretense that punishment has a purpose, that it can achieve a desired objective and that no other, less severe means are available for this objective. However, retributivism isn’t a solid justification of criminal punishment either. It has proven to be impossible to know what exactly it is that the guilty deserve. Lex talionis is the easy answer, but it’s no longer a convincing one in modern societies. Proportionality is the difficult answer: severity in punishment should be proportional to the gravity of the offense. That’s the difficult answer because it leaves us with a system that is inherently imprecise and arbitrary. An infinite number of punishments are consistent with this justification. Hence it’s not really a justification at all.

No justification?

So, where does this leave us? It seems like criminal punishment is not justifiable. And indeed, there’s a long tradition in philosophy that views punishment as nothing more than rationalized anger, revenge and domination. Michel Foucault for example has analyzed criminal punishment as a cogwheel in the continuation of social power relations. The fact that there are so many African Americans in U.S. prisons and in execution statistics can be viewed as a symptom of continued racist domination. Nietzsche has described criminal punishment as being motivated solely by a deep natural desire to punish, subordinate and coerce. And indeed, if you want to punish someone for a crime, you first need to establish control over the would-be punishee. All systems of criminal punishment seems to be doomed to failure if there isn’t a prior system of control. This would indicate that there is already a prior system of control operating in society before criminal punishment takes effect, which in turn seems to indicate that systems of criminal punishment are merely the strong arm of deeper systems of control.

On the other hand, it seems difficult for anyone who’s serious about human rights to simply abandon criminal punishment. Without criminal punishment, we in fact expect victims of crime to either fend for themselves or undergo their suffering and rights violations. Neither outcome would be just.

Crime and Human Rights (11): The Preconditions for Criminal Punishment

I know that the worst thing about crime is what happens to the victims of crimes, not what happens to convicted criminals. Still, I want to focus on the latter for a moment. Criminal punishment is almost always a limitation of the criminal’s human rights, so it is a legitimate area of concern, although perhaps not the most important one. Whether we put criminals in prison, kill them, flog them, cut off their hands or put their names and addresses on the internet, we limit some or even many of their human rights.

So, if we want to maintain a system of criminal punishment, and if we agree that people don’t lose their human rights simply because they commit a crime, then we have to formulate a justification of the limits we impose on the rights of criminals. When are such limits justified, and when are they arbitrary, excessive or dictatorial? I believe criminal punishment is morally justified if, and only if, at least the following 8 conditions are met simultaneously:

1. Criminal punishment is necessary for the protection of the rights of others

A particular punishment, involving very specific limitations of the rights of the convicted criminal, has to be necessary for the protection of the rights of others. No other goal can be served by criminal punishment, and no other means or punishments, less harmful to the rights of the criminal have the same effect on the rights of others.

Criminal punishment not intended to protect the rights of others is therefore unacceptable, as is criminal punishment which imposes harm on the criminal that goes beyond what is necessary for the protection of the rights of others. For example, putting someone in prison because she has a certain opinion, is unacceptable because this punishment doesn’t protect the rights of others. And putting someone in prison because she steals a newspaper is also unacceptable because this punishment goes beyond what is necessary to protect the property rights of others. Rights protection in this case can be achieved by other means which are less harmful to the rights of the criminal (a fine for instance).

So both the type of punishment and its severity have to be taken into account when judging whether the punishment is morally justified. Simple retribution, proportionality or lex talionis can, in some cases, satisfy this first condition of morally justified punishment, but only by accident. In many cases, you will not deliver a morally justified punishment when you think only in terms of retribution, proportionality or lex talionis because you won’t automatically consider the effect of the punishment on the rights of others.

For example, take the case of a jealous artist vandalizing the work of a rival. Lex talionis would recommend that the vandals art be also vandalized. However, this punishment may be proportional and adequate retribution, and the vandal will undoubtedly suffer from it like he made his rival suffer, but no one’s rights are protected in this way. On the contrary, if the vandal is a good artist the punishment may even violate the rights of large numbers of people.

A punishment should be designed in such a way that it protects the rights of the victims and possible victims of the criminal who is about to be punished. This is the case when incarceration of a sexual maniac will protect the rights of his victim (although not retroactively) and of possible future victims, and such a punishment does seem to be what is required while avoiding the imposition of excessive harm on the maniac. In other words, there isn’t a more lenient sentence available which would offer the same protections to the rights of others while imposing less restrictions on the rights of the maniac. And neither is the punishment too severe for the purpose it serves, namely the protection of the rights of others.

But these “others” are not only the victims or possible victims of the criminal. Punishment is also signaling: by showing possible maniacs what happens to actual maniacs, we want to deter crime. Deterrence, like punishment, also protects the rights of others, “others” meaning here not the victims or possible victims of an actual criminal but the possible victims of a possible criminal. There is room for deterrence, but only when the deterrent effect is real, in other words when it really helps to protect the rights of others. We should be careful with deterrence, because deterrence means the instrumentalization of human beings. When there is doubt about a deterrence effect, and when at the same time the proposed punishment is very harsh, we should avoid designing the punishment with deterrence in mind. For example, if a very high fine for shoplifting has been shown empirically to deter a high percentage of possible shoplifters, then it would be morally justified to impose such a high fine on a specific shoplifter, even if a much lower fine would suffice to protect the rights of the actual and possible victims of this specific shoplifter. So this is an exception to the rule stated a moment ago.

On the other hand, if it can be shown empirically that the deterrent effect of capital punishment is doubtful, then we should not impose that punishment on a specific criminal, except when it is necessary to protect the rights of the actual and possible victims of that specific criminal. But when is this necessary? Often if not always we can find a more lenient sentence which will offer the same protections to the rights of actual and possible victims of an actual criminal, while imposing less restrictions on the rights of the criminal (e.g. life without parole).

2. The criminal acted with free will

We should assume that people generally have free will. There doesn’t seem to be room for moral responsibility or criminal culpability without this assumption. There can’t be criminals in a world in which everything is governed by “blind” cause and effect. People have free will when they have the capacity to choose a course of action from among a set of alternatives. If a criminal’s will and choice of action are not decided by himself, we can hardly say that he’s responsible for his actions. Only if he could have acted differently can he be held responsible for his actual actions. Imagine a brainwashed spy being sent abroad by his totalitarian government in order to kill political opponents. This person couldn’t have acted differently and didn’t have the capacity to choose from among different courses of action. Hence he can’t be held responsible for his actions.

We should start from the general assumption that people normally act on the basis of free will, but if we find that this assumption doesn’t hold in a particular case, then either criminal punishment is not justified or the punishment should be less severe. People can be determined to will certain ends without having been brainwashed. A drug addict for example suffers from a compulsive and controlling desire and has lost his free will. Addiction impairs the will. If he acts on the basis of this compulsive desire and commits a crime along the way, it’s common to take the absence of free will into account when determining the severity of the punishment. Both external manipulation of our psychology and internal compulsions can force us to do things we don’t desire or choose to do, and they can even force us to desire or choose things we wouldn’t freely desire or choose. (Hypnosis can also be an example). In either case, we are not culpable, or at least the level of our culpability is reduced.

3. The criminal did not act because of “force majeure”

Force majeure is a term for an action that is caused by events or circumstances beyond the control of the agent. For example, someone kills another person because he was instructed to do so by gunmen holding his children hostage. Sometimes, there are external constraints on the range of options we have, and things beyond our control can force us to act (or not act) in a certain way.

This condition should be distinguished from free will. It’s not because some external causes force you to act in a certain way that you lose your free will. You act in a certain way but at the same time you don’t have to want to act in that way.

4. The criminal was aware of alternative courses of action and of the moral significance of those alternatives

For example, if a criminal was convinced that he had no alternative and had to commit the crime, then he may not be culpable, even if in reality there were alternatives. Imagine the same case of the father being forced to kill by gunmen holding his children hostage. Maybe there was an easy and safe way for the police to free the children. However, if the father was unaware of this and executed the demands of the gunmen without contacting the police, then he shouldn’t be found guilty of a crime.

However, the father may have been culpably unaware: reasonable people can agree that he should and could have been aware of the possibility to involve the police, but he failed to do everything possible to examine the alternatives. In that case, he should be found guilty.

5. The criminal acted with intent

If the consequences of an action were not intended by the agent, then either he is not culpable or his culpability is diminished. This 5th condition should be distinguished from free will: an action can be undertaken with free will but without intending all the consequences that occur. A woman who is not acting compulsively (who is not addicted for example), who is not forced by external powers to desire things she would normally not desire or to do things she doesn’t want to do, and who reasonably reflected on possible alternatives, acts in a chosen way. To her surprise, her actions lead to someone’s death. She didn’t intend this outcome, and hence she’s not culpable, or at least her culpability is reduced.

6. The criminal caused the crime

There should be no doubt about the causal link between the criminal’s actions and the crime. Let’s elaborate the previous example: the woman caused the death by hitting the victim with her car. The victim didn’t violate any traffic rules for pedestrians. The woman wasn’t speeding compulsively. She wasn’t under hypnosis or forced to hit the victim by gunmen threatening her children. And she wasn’t culpably unaware of the risk of driving a car in that particular street. Moreover, there’s some medical doubt as to the actual cause of death. It seems that the pedestrian was suffering from a heart condition and a heart attack caused the pedestrian to stumble on the road. Hence the woman driver isn’t culpable.

7. The criminal is found guilty after a fair trial

Only if the rules on the fairness of criminal trials are respected can we impose criminal punishment. A person accused of a crime should be able to use a defense lawyer to guarantee that the judge takes all the 6 previous preconditions into account when sentencing. The trial should be public so that we can all see that criminal punishment is imposed fairly. Etc.

8. The criminal is found guilty on the basis of proper laws

The laws which the criminal is supposed to have violated should be universal laws. In other words, they shouldn’t be targeted at the criminal specifically. The rule of law imposes this restriction. Laws that are not equally applicable to all, including the legislators, are not proper laws, but simply a disguised form of the rule of man. Other rules of legislation should also be respected (no retroactive laws etc.).

Conclusion

If both judges and legislators keep these 8 points in mind when deciding the type and severity of the punishment that has to be imposed for a particular crime and on a particular criminal, then we will, in all likelihood, be able to avoid some of the worst injustices in our current criminal justice system. We won’t have overpopulated prisons, we won’t incarcerate people for silly offenses or lock them up for years and years for a crime that merely requires a few months, and we won’t use capital punishment as often as we do now.

Crime and Human Rights (10): Does Being Tough on Crime Reduce Crime?

The human right issues created by incarceration are evident, I think: locking people up means taking away a number if not most of their liberties, most obviously their freedom of movement, freedom to work, political freedom in some cases, and privacy. Other rights violations are also common, even in the prisons in rich countries such as the U.S.:

  • juvenile incarceration
  • the substandard conditions in which many prisoners are kept (Federal prisons in the U.S. hold 60% more prisoners than they were designed for)
  • the forced and unpaid labor prisoner often perform
  • the common occurrence of prison rape.

Some people clearly deserve to be put in jail, and often that is what is required in order to protect the human rights of their (possible) victims.

However, the “tough on crime” policies enacted in the U.S. and the resulting explosion in the numbers of U.S. citizens who are in prison (the U.S. has one of the highest incarceration rates in the world) go beyond what is required for public safety and the rights of victims. The causes of this explosion are numerous.

  • There’s the war on drugs, of course, which leads to excessively tough penalties, sometimes even for victimless crimes (the illegal sale of prescription painkillers for instance). Some of the penalties for drug “crimes” are tougher than the sentences for violent crimes.
  • There are other acts that are in essence victimless and need not be criminalized, and yet result in incarceration in the U.S. (e.g. importing rare orchids).
  • Sentences in the U.S. are too long. Many crimes come with mandatory minimum sentences, taking away judges’ discretion and their ability to take into account the specific circumstances of a crime. “Three strikes and you’re out” lead to life sentences for sometimes trivial crimes.
  • Some laws, especially laws regulating the conduct of businesses – are so vague that people have a hard time steering away from crime.
  • Prosecutors are often allowed to slice up a crime into a series of different crimes, each coming with a minimum sentence.
  • Parole conditions have been toughened, and people are regularly put back in jail for non-criminal violations of these parole conditions.

The cause of all this is probably the race to the top going on between politicians who are all promising to be tougher on crime than the next guy. Some judges in the U.S. are elected and engage in the same kind of bidding.

The question is: what are the benefits of this toughness, and what are the costs? Regarding the benefits, the homicide rate has been going down in the U.S., but it has since two centuries and it’s not clear that the tough policies introduced during the last decades have contributed much to the decline.

Bert Useem of Purdue University and Anne Piehl of Rutgers University estimate that a 10% increase in the number of people behind bars would reduce crime by only 0.5%. In the states that currently lock up the most people, imprisoning more would actually increase crime, they believe. Some inmates emerge from prison as more accomplished criminals. And raising the incarceration rate means locking up people who are, on average, less dangerous than the ones already behind bars. (source)

Regarding the costs: the prison system in the U.S. is extremely expensive, sucking away funds that could be used much more productively elsewhere, particularly on policies protecting human rights such as education. It’s also money that can’t be spent on better crime detection and better policing. It’s well-known that swift justice and high “catch rates” deter more crime than harsh penalties. If you want to be tough on crime, you shouldn’t necessarily choose the option of putting a lot of people away for a long time. And questioning the high incarceration rates in the U.S. doesn’t mean you’re weak on law and order.

High numbers of inmates also reduce the chances of rehabilitation: more prisoners means relatively less prisoners who can take advantage of the limited resources dedicated to vocational training and other activities that make it more likely that prisoners can become normal and non-reoffending members of society once they get out. Together with the phenomenon of prison as a “school for criminals”, this is likely to create a perverse effect: being tough on crime can actually increase crime. People should think hard on the way in which they choose to be tough on crime, and should consider if some crimes need to be crimes at all.

Crime and Human Rights (9): A Human Right to Possess and Carry Firearms?

Well, possessing and carrying firearms certainly isn’t a human right since it’s not mentioned in any global human rights treaty or declaration. Neither is it a right that’s demanded by the majority of people in the world. It seems to be an exclusive preoccupation of many in the U.S., where the Second Amendment to the Constitution declares:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (source)

Guns and violence

Whether or not this is an example for other countries to follow, or whether or not this is a good thing for the U.S., are questions worth pondering. The fact that Americans kill one another at a much higher rate than do residents of comparable western European nations, and that this gap persists despite a roughly 40 percent drop in the US homicide rate in the last 15 years or so, is a first indication the answer to those questions is likely to be negative. Gun rights in the U.S. has led to widespread gun possession:

The United States has the largest number of guns in private hands of any country in the world with 60 million people owning a combined arsenal of over 200 million firearms. (source)

And it so happens that this widespread possession is correlated with high crime rates. However, this correlation between gun ownership and violence doesn’t have to be causal. Both numbers can have a third factor causing them both, such as high levels of endemic aggression. Reducing the number of guns would then perhaps fail to reduce the levels of violence. However, I don’t believe in such a third factor and there is proof of a causal link between guns and aggression:

Do guns make men more aggressive? Looks like the answer is “Yes, unless they handle guns a lot.” … We tested whether interacting with a gun increased testosterone levels and later aggressive behavior. Thirty male college students provided a saliva sample (for testosterone assay), interacted with either a gun or a children’s toy for 15 min, and then provided another saliva sample. Next, subjects added as much hot sauce as they wanted to a cup of water they believed another subject would have to drink. Males who interacted with the gun showed significantly greater increases in testosterone and added more hot sauce to the water than did those who interacted with the children’s toy. Moreover, increases in testosterone partially mediated the effects of interacting with the gun on this aggressive behavior. (source)

Deterrence

On the other side of the argument, you have people claiming that more guns mean less crime. Gun possession is supposed to have a deterrent effect on criminals. At first sight, that sounds convincing: when potential criminals know that there’s a high probability that their potential victims carry or possess guns, they may think twice before deciding to rob someone. Still, how does this square with the correlation mentioned above? Why is there so much crime in the U.S. if gun ownership deters crime? The only explanation is that crime rates would be even higher in the U.S. without gun rights:

Because … while we hear about the murders and accidents, we don’t often hear about the crimes stopped because would-be victims showed a gun and scared criminals away. Those thwarted crimes and lives saved usually aren’t reported to police (sometimes for fear the gun will be confiscated), and when they are reported, the media tend to ignore them. No bang, no news. It is quite clear that we have not seen any massive increase in crime, even though we have shifted from a situation where about 10 states allowed nearly every law-abiding adult to get a concealed carry license to a situation where 40 states do. So the fears of gun control proponents certainly have not materialized. (source)

The argument is that while guns may be dangerous and lead to murders and violence, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Gun rights activists claim that on balance the gain is larger than the loss. Moreover, they argue that other rights can also cost lives (free speech for nazis can lead to authoritarian rule, rights ensuring that people have a fair trial can result in criminals escaping jail sentence etc.).

Supposing all this is true, the question is then what on earth is wrong with the American psyche that even a supposedly massive deterrent effect still produces crime rates that are higher than in other comparable countries that don’t have the same deterrent? I don’t think there’s anything particularly wrong with Americans, and hence this deterrent effect is probably largely imaginary (as are other deterrent effects).

I should also mention that the “more guns, less crime” narrative that claims that the number of lives saved by guns is larger than the number lost, often relies heavily on some seriously flawed research by the notorious John R. Lott (read more about this guy’s methods here and here). If you see or hear anyone defending gun rights and using Lott’s work, you can safely move on.

Self-defense

However, even if it’s not clear that a consequentialist or utilitarian defense of gun rights can work (that in other words gun rights produce overall higher utility levels that gun prohibition or gun control), it’s still possible to make a rights-based case for gun rights. You can argue that people have a right to the means of self-defense, whatever the overall balance of violence. I personally think that this is the strongest of the arguments in favor of gun rights. If you can connect gun rights to existing human rights such as the right to life and the right to physical security, you can make a strong case.

For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? The right to bear arms gives you a mechanism to protect your bodily autonomy from attack. (source)

This link to abortion is an interesting one. Both abortion and gun rights can be defended on the basis of bodily autonomy, self-determination and self-defense. But then again, it’s rarely the same people who defend abortion rights and gun rights. On the contrary, gun rights activists are often decidedly against abortion. There’s an interesting story here about a campaign against abortion in black families.

“BLACK CHILDREN ARE AN ENDANGERED SPECIES,” the billboards proclaim. Posted in dozens of locations in Atlanta’s black neighborhoods, they direct readers to a Web site that denounces abortion as a racist conspiracy. Through them, the pro-life movement is sending a message that it cares about the lives of black people. But does it?

The Web site plays every race card in the deck. It says “abortion is the tool [racists] use to stealthily target blacks for extermination.” It calls on readers to “expose the insidiousness of the pro-abortion agenda and its real target: the black community.” It touts the support of “Dr. King,” a niece of Martin Luther King Jr. “I know for sure that the black community is being targeted by abortionists for the purpose of ethnic cleansing,” she asserts.

What’s the basis for these charges? The campaign points to eugenic ideas and influences in the early birth-control movement. But its chief evidence is abortion rates. “Abortions in the black community occur at 3x the rate of those among the white population and 2x that of all other races combined,” the site points out. “The truth screams loud and clear—we are killing our very future.”

The numbers are provocative. But there’s something odd about the billboards. The child who appears beside the text is fully born. Abortion doesn’t kill such children. What kills them, all too often, is shooting. If you wanted to save living, breathing, fully born children from a tool of extermination that is literally targeting blacks, the first problem you would focus on is guns. They are killing the present, not just the future. But the sponsors of the “endangered species” ads don’t support gun control. They oppose it. … Maybe that’s why blacks, unlike whites, strongly favor gun control. (source)

This example of how gun control can help the black minority in the U.S. is often countered with another example of how it has been used to work against blacks. Gun control does indeed have a history as a tool for subjugation of blacks.

After the Civil War, the defeated Southern states aimed to preserve slavery in fact if not in law. The states enacted Black Codes which barred the black freedmen from exercising basic civil rights, including the right to bear arms. Mississippi’s provision was typical: No freedman “shall keep or carry fire-arms of any kind, or any ammunition.” (source)

Gun control left the freedman defenseless against the KKK and unable to form militias to resist white terrorism. However, I fail to see how a very specific and largely closed period in American history can justify rights more than 100 years later, especially if there are contemporary examples pointing the other way.

A final self-defense argument against gun control is the possible revolution against a dictatorial government. The “people” may need firearms to rise up when government becomes tyrannical. Now, I know that there’s currently a lot of right-wing anti-Obama hysteria and paranoia doing the rounds about a supposed dictatorial plot. However, I think it’s very unlikely that any U.S. government can ever achieve tyranny, even if it very much wanted to. And suppose it did, how can you be so foolish to believe that handguns would allow the people to defeat the superior firepower of the U.S. government?

Regardless of your position on the Second Amendment, whether the Second Amendment’s right to keep and bear arms is “fundamental” to “our scheme of ordered liberty” is severely questionable.  Certainly other countries are able to have something that we would call “ordered liberty” without ironclad protection of firearms ownership rights.  And while historically there may have been instances where the ability of the citizenry to safeguard or expand “ordered liberty” via ownership of firearms, the restrictions that are allowed on the Second Amendment under Heller ensure that the government’s advantage in firepower will be insurmountable in such hypothetical circumstances nowadays. (source)

Gun control

What I personally would favor is not prohibition but extensive gun control, including bans on gun possession by felons or minors etc., bans on the open or concealed carry of guns in certain places such as schools etc. I can understand why some people think they need a gun for self-defense. The question is, however, if restrictions on gun rights will still be possible after the recent Supreme Court case, McDonald v. City of Chicago.

The argument that gun control laws don’t work and don’t bring down the number of crimes isn’t necessarily correct. You would have to measure against the counterfactual, which is very difficult: without gun control laws, crime would perhaps have gone up, so a failure to reduce crime isn’t necessarily a failure of gun control laws. Maybe they simply reduced the growth in crime rates. Also, failure to bring down crime rates may be not the fault of gun control laws but of the way they are designed or enforced. And anyway, there is evidence that gun control laws do bring down crime rates.

Crime and Human Rights (5): Decreasing Levels of Violence

Violence is obviously a human rights issue. Violent actions, either by the state or by fellow citizens, violate our physical integrity and personal security. Several articles of the Universal Declaration protect us against different forms of violence: art. 3 protects our right to life and personal security, art. 4 prohibits slavery, art. 5 prohibits torture etc.

Levels of violence throughout history

It’s perhaps counter-intuitive, but violence has been in decline throughout modern history.

Today we are probably living in the most peaceful moment of our species’ time on earth. When the archeologist Lawrence Keeley examined casualty rates among contemporary hunter-gatherers – which is the best picture we have of how people might have lived 10,000 years ago – he discovered that the likelihood that a man would die at the hands of another man ranged from a high of 60 percent in one tribe to 15 percent at the most peaceable end. In contrast, the chance that a European or American man would be killed by another man was less than one percent during the 20th century, a period of time that includes both world wars. … From the Middle Ages to modern times, we can see a steady reduction in socially sanctioned forms of violence. Steven Pinker (source)

This is true for most kinds of violence: war, ethnic conflict, state violence (criminal punishment, torture, repression etc.), war, one-to-one violence (homicide) etc.:

When the criminologist Manuel Eisner scoured the records of every village, city, county, and nation he could find, he discovered that homicide rates in Europe had declined from 100 killings per 100,000 people per year in the Middle Ages to less than one killing per 100,000 people in modern Europe.

And since 1945 in Europe and the Americas, we’ve seen steep declines in the number of deaths from interstate wars, ethnic riots, and military coups, even in South America. Worldwide, the number of battle deaths has fallen from 65,000 per conflict per year to less than 2,000 deaths in this decade. Since the end of the Cold War in the early 1990s, we have seen fewer civil wars, a 90 percent reduction in the number of deaths by genocide, and even a reversal in the 1960s-era uptick in violent crime. Steven Pinker (source)

A cognitive illusion

We tend to believe that the 20th century was the most bloody of all, and that the 21st hasn’t started any better. That’s probably a misconception or “cognitive illusion” fueled by unprecedented information flows. Today, we have magnificent information systems delivering facts, figures and images instantaneously. Compared to that, information about the centuries before is by definition more scarce: few images and newspaper reports, no television reports, less systematic historiography, less durable data sources etc.

That doesn’t make the present-day levels of violence acceptable. On the contrary. Rather than looking at history and concluding that man will always be violent, the recent decreases in levels of violence should encourage us to go all the way. And then it’s important to understand why the levels have gone down.

Why has violence declined?

One reason is undoubtedly the development of the modern state and its judicial apparatus. This apparatus can of course be used to inflict violence, but the risk of this happening has decreased as states have become more democratic, more respectful of the rule of law, and more sensitive to human rights. The democratic nature of many contemporary states has also diminished the risk of inter-state violence (this is the so-called democratic peace theory).

Another, and related, point is that

Thomas Hobbes got it right. Life in a state of nature is nasty, brutish, and short – not because of a primal thirst for blood but because of the inescapable logic of anarchy. Any beings with a modicum of self-interest may be tempted to invade their neighbors and steal their resources. The resulting fear of attack will tempt the neighbors to strike first in preemptive self-defense, which will in turn tempt the first group to strike against them preemptively, and so on. … These tragedies can be averted by a state with a monopoly on violence. States can inflict disinterested penalties that eliminate the incentives for aggression, thereby defusing anxieties about preemptive attack and obviating the need to maintain a hair-trigger propensity for retaliation. Indeed, Manuel Eisner attributes the decline in European homicide to the transition from knightly warrior societies to the centralized governments of early modernity. And today, violence continues to fester in zones of anarchy, such as frontier regions, failed states, collapsed empires, and territories contested by mafias, gangs, and other dealers of contraband. Steven Pinker (source)

Yet another reason for the decrease in the levels of violence is the development of the modern economy. This development has increased the costs of violence. It’s easier to be violent towards your fellow human beings of you live in a subsistence economy and produce everything you need for yourself. When you depend on others for your job and income, your consumption goods, your transport etc. it becomes more costly to act in a violent way towards them. The same can be said of nations: like individuals, nations have become more interdependent in the globalized economy. Acting violently towards other nations has therefore become more costly. Self-sufficiency is no longer an option for nations either.

Yet another reason:

James Payne suggests another possibility: that the critical variable in the indulgence of violence is an overarching sense that life is cheap. When pain and early death are everyday features of one’s own life, one feels less compunction about inflicting them on others. As technology and economic efficiency lengthen and improve our lives, we place a higher value on life in general. Steven Pinker (source)

Crime and Human Rights (1): Poverty and Crime

Poverty is the mother of crime. Marcus Aurelius Antoninus

Does poverty cause crime? Are people criminal because they are poor, or are they poor because they are criminal? The latter is uncontroversial, given the time and professional and educational experience inmates lose, the difficulties they have finding a job after their release etc.

But what about the former statement? Crime obviously has many causes, and poverty is most likely one of them in some cases. It seems likely that some poor people may sometimes have to resort to theft in order to survive. But the causal relationship between crime and poverty is only likely for some types of crimes. Other crimes, such as fraud, crimes of passion, serial murder etc. bear absolutely no link to poverty. There may be even an inverse link, since poor people are not in a position to carry out a crime like fraud or insider trading.

This paper lists some of the statistics that show a possible correlation between poverty and crime – mainly property crime, more than violent crime. There is also the fact that African-Americans in the U.S. are overrepresented both in prisons and in poverty statistics, indicating as well that there is a correlation. There is some anecdotal evidence (there are many news stories indicating a link, such as the stories about people stranded on a desert island, being subject to extreme scarcity and engaging in crime such as murder and cannibalism). But there’s also anecdotal evidence to the contrary. During the Great Depression, for example, crime did not increase significantly.

Anyway, it seems intuitively acceptable that there is some causal link between crime and poverty, in both directions. So dealing with crime without dealing with root causes of crime such as poverty, and only focusing on punishment is indeed not the best option. However, none of this should imply:

  • that poverty somehow determines crime, or that crime is a necessary result of poverty; many poor people are not criminals, and many rich people are
  • that poor people are perhaps not predetermined to be criminals, but that they are more disposed to crime than other people; that would be insulting
  • that there are no other, perhaps more important causes of crime such as irresponsibility, immorality etc.
  • that poverty is somehow an excuse for crime, or perhaps even a justification; I think it’s not even a mitigating circumstance
  • that poverty should be reduced to a problem of crime; poverty, slums and homelessness should not be eliminated because they are so-called breeding grounds of crime, but because we have a moral duty to do so.

Given the causal link, we should also accept that poverty, like a bad upbringing, is often abused as a false excuse for crime.

A related question is the following: are poor inmates incarcerated because they are criminal or because they are poor and can’t escape the law as easily as the rich? Article 14 of the International Covenant on Civil and Political Rights gives everyone the right to legal defense, without charge if necessary:

Everyone shall be entitled to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.