Human Rights Promotion (20): Exposing Criminals

There are a number of private initiatives aimed at publishing personal information about convicted criminals. Websites such as CriminalCheck.com, ukpaedos-exposed.com, Lexbase.se and so on publish information about criminals’ place of residence after they’ve left prison, or even their contact information. Newspapers as well seem to make it a point of honor to mention personal details in their crime reporting. Sometimes the “criminals” are people who are merely suspected of a crime.

This kind of thing is said to be justified as a form of privatized human rights enforcement. If people know where criminals live or work, they can steer clear of danger and increase their physical safety or the security of their property. Public knowledge about ex-cons also serves to “shame” them – including some potential criminals – and that again is something which may reduce the risk of future crimes. In any case, the overall justification seems to be enhanced protection of the rights of possible victims through private crime prevention.

Purveyors of personal information about criminals claim that what they do is protected by free speech rights – including the right to access information. Maybe it is, but in that case we seem to have a conflict between rights. Criminals have a right to privacy, and information about their past convictions may well be part of their private lives. Publication of this information could sometimes also endanger some of their other rights, such as their right to work, to choose a residence etc. -given what we know about public harassment and discrimination of people known to have a criminal past.

What to do about this conflict of rights? Perhaps violations of the rights of criminals are an acceptable price to pay for the speech rights of the exposers and the rights of possible victims. Even violations of criminals’ right to physical security – given the possibility of violent retaliation by past victims or vigilante hotheads – may be viewed as an acceptable risk. Some even want to argue that exposing criminals is a matter of justice: too lenient court sentences can be corrected by private retaliation made possible by published information.

I guess most of us would agree that this goes too far. Even if we believe that sentences are too lenient, we shouldn’t view private retaliation as an acceptable justification or byproduct of public exposure of convicted criminals. I don’t think there’s a large constituency against the right to physical security for criminals who have served their time (or for those still serving their time). A reasonably well-functioning criminal justice system should take care of punishment. And when we don’t have a well-functioning criminal justice system, the obvious goal is to improve it, not privatize it.

The best case in favor of private efforts to expose criminals is based not on retaliation but on the rights of the exposers and of possible victims. You can make the case that criminals’ general right to privacy can sometimes be overruled in favor of the right to free speech of the exposers and the right to physical safety and property of potential victims.

On the face of it, that’s not a ridiculous claim. Different rights often contradict each other, and it’s quite common that some rights should give way to some other rights in certain specific cases. Neither is it ridiculous to claim that private initiative has in general a role to play in human rights promotion. However, I don’t think we’re dealing here with a good example of a helpful private initiative. For two reasons.

  1. Balancing acts between rights are treacherous and best left to professional judges. Convicted criminals – or anyone else for that matter – have no right to be free from shame or public humiliation but they do have a right to privacy and to be free from harassment and vigilante justice. We should take these rights seriously, even if – and perhaps because – we are dealing with the rights of criminals. These criminals have already paid the price for their crimes and should be protected against violations of their rights. An attack on their privacy should therefore be avoided if at all possible, especially if such an attack can invite further violations of their rights such as vigilante justice, work problems, family problems etc. It’s unlikely that a balancing act between the speech rights of the exposers and the rights of the criminals would be decided against the latter. A balancing exercise between the exposers’ right to free speech and the criminals’ right to privacy would almost always favor the latter. The harm done to the rights of criminals when favoring free speech rights is more important than the harm done to the rights of the exposers when favoring privacy rights.
  2. If you’re not convinced by this and you still want to make the case that criminals’ right to privacy should be limited for the sake of someone else’s free speech right, then you still face another problem. It doesn’t seem right that criminals’ privacy should give way because there’s a risk of future violations of property or security rights of others. There has to be more than a mere risk, and typically there isn’t in these cases. People engage in the exposure of criminals because of the supposed risk of having criminals close by, not because these criminals are actually engaged in crime.

More about this here and here. More posts in this series are here.

The Causes of Human Rights Violations (57): Some Clues From the Broken Windows Theory?

The Broken Windows Theory (henceforth BWT) was first described by James Q. Wilson and George L. Kelling in a 1982 article. The idea is that social disorder – exemplified by a neighborhood where many windows are broken – fosters crime. Disorder sets certain destructive norms and signals that those norms are OK. Broken windows, even a few, that are left unfixed will soon come to represent a lack of accountability and judicial redress. Unrepaired broken windows are a signal that no one cares, and so breaking more windows costs nothing. Hence people will not refrain from breaking more and you’ll have a vicious cycle of disorder. This is a kind of lawlessness that will eventually also lead to bigger crimes.

If, on the other hand, a part of town is well-maintained, people will be less likely to engage in acts of vandalism there because they know that they will be held accountable if they do. The same is true for other types of antisocial behavior such as littering. Throw one thing away in a clean environment, and you’ll have the police at your door. Throw something on an existing pile and you’ll feel better.

The BWT can perhaps explain certain human rights violations. I see two ways in which it can: it explains crime, and most crimes are human rights violations; and perhaps the same broken window logic applies to human rights violations themselves: one rights violation that goes unpunished may start a sequence of impunity and repeated violations.

However, this means assuming that the BWT is more than just a theory and can be supported by facts. There’s some controversy as to whether it can be.

NB: Wilson’s Broken Window theory should not be confused with Bastiat’s theory.

More posts in this series are here.

What Are Human Rights? (49): Universal Rights

Human rights are universal rights, rights that all human beings have for no other reason than being human. That’s almost a tautological statement, and one which has been repeated millions of times. Universality is implicit in the name. This sets human rights apart from other types of rights, such as legal rights which only matter to those subject to the particular jurisdiction in which these legal rights apply, or contract rights which apply only to the people bound by a particular contract.

Despite this definition of human rights, their universality is often contested. Does a person with Down Syndrome have the right to work? Does a newborn baby have the right to free speech? Does a criminal have a right to freedom of movement? Do all potential immigrants have a right to unemployment benefits? Does a terrorist who can order his colleagues to stop torturing three other people have the right not to be tortured? Questions like these are often rhetorical: the unstated but understood answer is “of course not”. People who ask these questions perhaps do so because they want to deny the universality of human rights, and this denial in turn may come in handy when they try to justify violating the rights of some.

There’s in fact an easy answer to this apparent paradox. The universality of human rights is, like human rights themselves not a fact but an aspiration. We have to work to make it a fact, all the time knowing that we’ll probably never get there. We have to work to improve people’s capacities so that they can more fully enjoy their rights. In the case of the disabled, we should recognize that disability, rather than an inborn or acquired lack of capacity, is in fact – in part at least – a capacity that is reduced as a result of the way in which we have chosen to organize society. In the case of criminals, we tend to assume rather too quickly that criminal punishment necessarily involves restrictions of people freedom of movement. And so on. None of the rhetorical questions cited above strikes a fatal blow to the ideal of universality.

More on universality is here. 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.

Migration and Human Rights (46): The “Criminal Immigrant” Stereotype, Ctd.

As is often the case, there’s public opinion, there’s empirical reality, and there’s a lot of space between the two. One particularly harmful public myth is the one about the “criminal immigrant”. It’s harmful in several ways: it whips up support for immigration restrictions, which help to keep many foreigners poor, and it contributes to feelings of insecurity, which in turn lead to tough-on-crime policies and high rates of incarceration.

Kitty Calavita’s recent study in southern Europe, for example, reports that in Spain in 2002 a national poll found that 60 percent believed that immigrants were causing increases in the crime rate, while a survey conducted in Italy found that 57 percent of Italians agreed that “the presence of immigrants increases crime and delinquency.” (source)

Now, the facts:

Both contemporary and historical studies, including official crime statistics and victimization surveys since the early 1990s, data from the last three decennial censuses, national and regional surveys in areas of immigrant concentration, and investigations carried out by major government commissions over the past century, have shown instead that immigration is associated with lower crime rates and lower incarceration rates. (source)

Some data are here. In the U.S., crime rates have gone down when at the same time immigration rates have gone up.

More posts in this series are here.

The Causes of Human Rights Violations (42): First is Best

Psychological tests have shown that the first experience in a series of two or more is cognitively privileged. The order in which people experience things affects how they evaluate them: they tend to think the first option is the best.

Here’s an experiment showing how people decide that a criminal presented first is more worthy of parole:

Two criminals’ photographs, from the Florida Department of Corrections website … were used. Photos depicted 29 year-old males known to have committed the same violent crimes. Criminals were wearing identical correctional facility outfits; photos were pre-tested to be equally attractive and both expressing neutral facial expressions. …

Thirty-one participants … were asked to evaluate [the] two criminals and to determine who should “stay in jail” versus “be released on parole.” … [P]articipants automatically associated the first criminal with being more worthy of parole (rather than prison) compared to the second criminal. Regardless of which photo was presented first, it was the one presented first who was judged to be more worthy of parole. (source)

This is a form of order effect: people’s choices are often sensitive to differences in the order in which the options appear. (“First is best” is only one form of order effect; in some other cases, order effects show that the last options are privileged). As is clear from the example above, order effects can have consequences for human rights: if people are given parole on the basis of the psychological biases of those who decide rather than on the merits of the case, then equality before the law is done with.

It wouldn’t be very difficult to imagine and test other cases.

More posts in this series are 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.

Capital Punishment (46): “Looking Deathworthy”

That’s the provocative title of a new paper showing a correlation between the likelihood of receiving a death sentence and the perception of having a stereotypically Black appearance:

Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.

We already knew that both the race of the victim and the race of the defendant influence capital sentencing. Black defendants are executed more often than they should be in a system that pretends to treat all equally before the law and that ostensibly denies that racism should be allowed to determine judicial outcomes.

Now it seems that there’s a subgroup of African Americans who are treated even worse, namely those people who are perceived to have a stereotypically Black appearance (e.g., broad nose, thick lips, dark skin). People apparently associate those stereotypical physical traits with criminality. No surprise that this bias isn’t limited to capital cases:

Even with differences in defendants’ criminal histories statistically controlled, those defendants who possessed the most stereotypically Black facial features served up to 8 months longer in prison for felonies than defendants who possessed the least stereotypically Black features. (source)

Some more evidence is here. This form of bias has been called colorism, and it has effects way beyond the criminal justice system.

More posts in this series 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.

Capital Punishment (44): The Retribution Argument Against Capital Punishment

Retribution is the last refuge of those seeking to justify capital punishment, given the failure of other arguments (deterrence, incapacitation etc.). Retribution is a punishment that fits the crime: the severity of the punishment should be proportionate to the severity of the crime. Intuitively, therefore, retribution should justify capital punishment for murder. Only death is a punishment that is as severe as murder. The Latin origin of the word “retribution” indicates that something should be given back or returned: someone “gives” death and hence death should be returned.

However, in theory, retribution does not necessarily mean that the punishment has to be strictly equivalent to the harm caused by the crime: some claim that retribution simply means that we must punish severe crimes more harshly than less severe crimes. Yet we see in practice that capital punishment as punishment for murder is defended on retributivist grounds.

Retributivists, ancient and modern, have always been lured by one or another form of lex talionis. (source)

There’s often an element of desert introduced in retributivist arguments. A murderer should be put to death because this punishment fits the crime, and because this punishment fits the crime, the murderer deserves to die.

So, given this “natural” tendency of retributivists to favor capital punishment for murder, how can it be possible to construct an argument based on retribution against capital punishment, as the title of this post suggest? Thom Brooks has made a highly interesting attempt here. It’s based on a decision by Judge Jed Rakoff ( in US v Quinones):

What DNA testing has proved, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases. In each of the 12 cases of DNA-exoneration of death row inmates referenced in Quinones, the defendant had been guilty by a unanimous jury that concluded there was proof of his guilt beyond a reasonable doubt; and in each of the 12 cases the conviction had been affirmed on appeal, and collateral challenges rejected, by numerous courts that had carefully scrutinized the evidence and manner of conviction. Yet, for all this alleged “due process”, the result in each and every one of these cases, was the conviction of an innocent person who, because of the death penalty, would shortly have been executed (-some came within days of being so-) were it not for the fortuitous development of a new scientific technique that happened to be applicable to their particular cases. (source)

This should even convince retributivists that capital punishment has to be rejected. Even if you adopt the moral rule that murderers deserve to die you, shouldn’t apply the death penalty in practice because you can’t be certain that a particular defendant is really guilty of the crime and hence deserves to die. And there’s no point arguing that the systematic use of DNA testing gives you this certainty: first, it’s not always possible to use DNA tests, because the crime has to be of such a type that DNA traces are potentially available, and even if they are potentially available they may not be actually available; and second, we don’t know if DNA testing is accurate enough and won’t be discredited in the future.

You could also argue that the same lack of certainty is the case for all types of crime, and that rejecting capital punishment because of a lack of certainty implies rejecting criminal punishment tout court. Not quite: all other types of punishment allow for the possibility to correct mistakes resulting from uncertainty. Capital punishment rules this out.

And there’s another kind of uncertainty that militates against capital punishment and that should convince retributivists to reject it. The desert of a criminal is usually based on more than mere physical evidence of his actions. Intent also plays a part. Take the case of someone who caused the death of someone else by his actions – and let’s assume that we are certain about this, e.g. we have DNA evidence and we know that no future scientific developments will cast doubt on this evidence – but did not intend to kill. Many would argue that he doesn’t deserve to die. However, intent is impossible to prove because it requires reading someone’s mind, and hence we can never be certain that someone intended to kill. A desert based argument for capital punishment is void if desert includes intent.

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.

Capital Punishment (41): The “Healing” Argument and the “Danger” Argument

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but there are some other, less common arguments as well. There’s for example the argument that capital punishment is necessary for “closure” and “healing” of the victim’s surviving family and friends. Capital punishment is therefore viewed as a therapy. Apart from the doubts that capital punishment can serve this purpose – what does closure and healing mean and do they necessarily require an execution? – there’s a strong case that it shouldn’t be used for this purpose even if it can be: it would amount to crude instrumentalization of the criminal, even more than in the case of deterrence. Moreover, there’s a problem with cause and effect: if people are told that they need an execution in order to accomplish closure, then perhaps they’ll start to believe there’s no other way.

Another argument in favor of capital punishment is based on guesses about the harm that would result from failing to use this type of punishment. If we don’t satisfy the public’s blood lust – or call it “punitive emotions” if you want – the public will seek to satisfy it in ways that we wouldn’t like (e.g. lynching). However, there’s again a problem with cause and effect in this argument: the justice system does not merely reflect opinion about appropriate punishment, but also shapes it. Far from reducing blood lust, capital punishment may instead promote it. This is the so-called brutalization effect.

The basis of blood lust is moral outrage, and such outrage – contrary to blood lust – is often completely justified. And it should be recognized, but it can be in ways that don’t involve executions.

More on capital punishment is here.

Measuring Human Rights (27): Measuring Crime

A number of crimes are also human rights violations, so crime rates can tell us something about the degree of respect for human rights. Unfortunately, as in most cases of rights measurement, crime measurement is difficult. I won’t discuss the usual difficulties here – underreporting by victims or relatives, lack of evidence, corrupt or inefficient police departments etc. Instead, I want to mention one particularly interesting problem that is seldom mentioned but possibly fatal for crime rate statistics: most reductions in crime rates are not really reductions, especially not those reductions that come about as a result of tougher law enforcement and higher incarceration rates. When we imprison criminals, rather than bringing crimes rates down, we just move the crime from society towards the prisons:

the figures that suggest that violence has been disappearing in the United States contain a blind spot so large that to cite them uncritically, as the major papers do, is to collude in an epic con. Uncounted in the official tallies are the hundreds of thousands of crimes that take place in the country’s prison system, a vast and growing residential network whose forsaken tenants increasingly bear the brunt of America’s propensity for anger and violence.

Crime has not fallen in the United States—it’s been shifted. Just as Wall Street connived with regulators to transfer financial risk from spendthrift banks to careless home buyers, so have federal, state, and local legislatures succeeded in rerouting criminal risk away from urban centers and concentrating it in a proliferating web of hyperhells. (source, source)

And there’s no way to correct for this and adjust overall crime rate statistics because quality statistics on crime rates inside prison are even harder to get than statistics on “normal” crime rates – given the quasi lawlessness of prison life.

More on prison violence here and here.

Measuring Human Rights (26): Measuring Murder

Murder should be easy to measure. Unlike many other crimes or rights violations, the evidence is clear and painstakingly recorded: there is a body, at least in most cases; police seldom fail to notice a murder; and relatives or friends of the victim rarely fail to report the crime. So even if we are not always able to find and punish murderers, we should at least know how many murders there are.

And yet, even this most obvious of crimes can be hard to measure. In poorer countries, police departments may not have the means necessary to record homicides correctly and completely. Families may be weary of reporting homicides for fear of corrupt police officers entering their homes and using the occasion to extort bribes. Civil wars make it difficult to collect any data, including crime data. During wartime, homicides may not be distinguishable from casualties of the war.

And there’s more. Police departments in violent places may be under pressure to bring down crime stats and may manipulate the data as a result: moving some dubious murder cases to categories such as “accidents”, “manslaughter”, “suicide” etc.

Homicides usually take place in cities, hence the temptation to rank cities according to homicide rates. But cities differ in the way they determine their borders: suburbs may be included or not, or partially, and this affects homicide rates since suburbs tend to be less violent. Some cities have more visitors than other cities (more commuters, tourists, business trips) and visitors are usually not counted as “population” while they may also be at risk of murder.

In addition, some ideologies may cause distortions in the data. Does abortion count as murder? Honor killings? Euthanasia and  assisted suicide? Laws and opinions about all this vary between jurisdictions and introduce biases in country comparisons.

And, finally, countries with lower murder rates may not be less violent; they may just have better emergency healthcare systems allowing them to save potential murder victims.

So, if even the most obvious of human rights violations is difficult to measure, you can guess the quality of other indicators.

Limiting Free Speech (47): Incitement to Commit Suicide

An interesting story in the press some time ago:

A former nurse from Faribault, Minn., was convicted of two felonies Tuesday when a judge ruled he had used “repeated and relentless” tactics during Internet chats that coaxed two people to kill themselves.

Rice County District Judge Thomas Neuville found that William Melchert-Dinkel, 48, “imminently incited” the suicides of Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Ontario. Drybrough, 32, hanged himself in 2005, and Kajouji, 18, jumped into a frozen river in 2008.

In a 42-page ruling that found Melchert-Dinkel guilty of two counts of felony advising and encouraging suicide, Neuville wrote that it was particularly disturbing that Melchert-Dinkel, posing as a young, suicidal, female nurse, tried to persuade the victims to hang themselves while he watched via webcam….

Neuville, in rejecting the free-speech defense, noted that inciting people to commit suicide is considered “Lethal Advocacy,” which isn’t protected by the First Amendment because it goes against the government’s compelling interest in protecting the lives of vulnerable citizens. (source, source)

I guess that’s correct, even though the case doesn’t really fit with any of the commonly accepted exceptions to free speech rights. We’re not dealing here with incitement to murder or a death threat – standard exceptions to free speech, even in the U.S. And neither is it speech that incites illegal activity – another accepted exception. Suicide isn’t murder and isn’t illegal (anymore). Abstract and general advocacy of crime and violence is – or should be – protected speech, but not the advocacy or incitement of specific and imminent crime or violence if this advocacy or incitement helps to produce the crime or violence. If speech intends to produce specific illegal or violent actions, and if, as a result of this speech, these actions are imminent and likely, then we have a good reason to limit freedom of speech. Examples of such speech:

None of these forms of speech should be protected, and laws making them illegal are perfectly OK. On the other hand, claiming that all politicians deserve to die or that people shouldn’t pay their taxes are, in most cases, forms of protected speech because they probably do not incite or help to bring about imminent lawless activity.

The problem is that none of this is applicable here. Suicide isn’t illegal, and neither is it violence as we normally understand the word. So, the commonly accepted exception to free speech rights that I just cited can’t possibly justify the conviction of Melchert-Dinkel. He did of course advocate, incite and cheer on his victims, and his advocacy, incitement and cheering probably helped to produce their suicides. But a suicide is not a crime or an act of violence. At least not as such. One could argue that the encouragement of a suicidal person should be viewed as a form of murder. And if that statement goes too far for you, you may want to consider the fact that causing someone else’s death is in general a crime, whichever way you do it. Moreover, if the victims in this case were suffering from depression or a mental illness, the state has a duty to provide healthcare, and allowing someone else to worsen their depression or illness to the point that they kill themselves is not consistent with this duty.

So, while the encouragement of suicide in general, the teaching the methods of suicide or the claim that non-suicidal people should go and kill themselves (“you don’t deserve to live”, “why don’t you just go and kill yourself”) are all forms of protected speech, the same is not the case for speech that encourages specific suicidal people to kill themselves.

Measuring Human Rights (23): When “Worse” Doesn’t Necessarily Mean “Worse”, Ctd.

Just because nobody complains does not mean all parachutes are perfect. Benny Hill

A nice illustration of this piece of wisdom:

Using state-level variation in the timing of political reforms, we find that an increase in female representation in local government induces a large and significant rise in documented crimes against women in India. Our evidence suggests that this increase is good news, driven primarily by greater reporting rather than greater incidence of such crimes. (source)

The cited “increase in female representation in local government” resulted from a constitutional amendment requiring Indian states to have women in one-third of local government council positions.

Since then, documented crimes against women have risen by 44 percent, rapes per capita by 23 percent, and kidnapping of women by 13 percent. (source)

This uptick is probably not retaliatory – male “revenge” for female empowerment – but rather the result of the fact that more women in office has led to more crime reporting. Worse is therefore not worse. A timely reminder of the difficulties measuring human rights violations. Measurements often depend on reporting, and reporting can be influenced, for good and for bad. Also, a good lesson about the danger of taking figures at face value.

Similar cases are here and here. More posts in this series are here.

Capital Punishment (38): The Truth About the Deterrent Effect

If I didn’t manage to convince you of the stupidity of deterrent talk in my two previous posts (here and here), then neither will I manage today. Still, I’m a hopeless optimist by nature, so I’ll try anyway. A vital presupposition in the deterrence argument in favor of capital punishment (or any type of punishment by the way) is the minimally rational nature of criminals: if criminals don’t weigh the costs and benefits of actions before they undertake them, an extra cost as heavy as death won’t make any difference to their actions. And they don’t:

The tenet that harsher penalties could substantially reduce crime rates rests on the assumption that currently active criminals weigh the costs and benefits of their contemplated acts. Existing and proposed crime strategies exhibit this belief, as does a large and growing segment of the crime literature. This study examines the premise that criminals make informed and calculated decisions. The findings suggest that 76% of active criminals and 89% of the most violent criminals either perceive no risk of apprehension or are incognizant of the likely punishments for their crimes. (source)

It seems that criminals, like the rest of us, are seldom the cold, mechanical and calculating types. And the best thing about this: even if it was all wrong and capital punishment could deter, it would still be unacceptable for other reasons.

More about deterrence here and here.

Self-Defeating Human Rights Policies (6): The Social Effects of Incarceration

[T]he effects of [the] change in the imprisonment rate [in the U.S.] … have been concentrated among those most likely to form fragile families: poor and minority men with little schooling. Imprisonment diminishes the earnings of adult men, compromises their health, reduces familial resources, and contributes to family breakup. It also adds to the deficits of poor children, thus ensuring that the effects of imprisonment on inequality are transferred intergenerationally. … Because having a parent go to prison is now so common for poor, minority children and so negatively affects them, the authors argue that mass imprisonment may increase future racial and class inequality — and may even lead to more crime in the long term, thereby undoing any benefits of the prison boom. U.S. crime policy has thus, in the name of public safety, produced more vulnerable families and reduced the life chances of their children. (source, source)

This is an example of a self-defeating human rights policy: in an attempt to improve the protection of security rights and property rights of a population, a policy of increased incarceration rates has an adverse effect on the rights of the incarcerated, their families and children, and possibly even society at large (as increased inequality resulting from high incarceration rates among society’s most vulnerable groups will perhaps lead to more crime – although we can’t assume that increasing poverty and inequality will automatically provoke those who are impoverished because of incarceration to resort to crime).

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.

Racism (20): Evidence of Colorism

Colorism is prejudice of or discrimination against other people based on skin color. The concept is different from racism because it’s usually used to describe discrimination within a certain race or ethnic group, based on the tone of skin color, rather than discrimination of an entire race or ethnic group. In general, this means that lighter skin tones are preferred and darker skin is considered less desirable. Lighter-skinned members of a certain race or ethnic group can discriminate against members with darker tones within the same group, but colorism more often means a general social preference for lighter skins.

One cause of colorism may be a traditional and historical preference for light and an abhorrence of darkness, light being good and godly, dark being evil and scary. However, I won’t explore the causes and just limit myself to some examples. There’s the one I mentioned some time ago, and then there’s this one:

Villanova researchers studied more than 12,000 cases of African-American women imprisoned in North Carolina and found that women with lighter skin tones received more-lenient sentences and served less time than women with darker skin tones. The researchers found that light-skinned women were sentenced to approximately 12 percent less time behind bars than their darker-skinned counterparts. Women with light skin also served 11 percent less time than darker women.

The study took into account the type of crimes the women committed and each woman’s criminal history to generate apples-to-apples comparisons. The work builds on previous studies by Stanford University, the University of Colorado at Boulder and other institutions, which have examined how “black-looking” features and skin tone can impact black men in the criminal-justice arena. …

Part of the reason may simply come down to how pretty jurors consider a defendant to be, and that being light-skinned and thin (also a factor studied in the research) are seen as more attractive. (source)

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.

Capital Punishment (34): Mere Signaling

It’s often assumed that capital punishment is about fighting crime, just retribution or desert, or perhaps about anger and revenge, but in reality it’s much more about signaling. And by signaling I don’t mean the signaling of threats to potential murderers so that they are deterred, or the signaling of the “just” nature of a society that takes an eye for an eye. Proponents of capital punishment, by expressing their support for it, signal their own moral rectitude. Their expression of support refers to high profile crime cases that are widely discussed in the media and that are likely to be familiar to friends, family and others to whom people want to signal. Signaling support for the death penalty in reference to such high profile cases makes the signal particularly strong and deep, partly because it’s so full of familiar and shockingly emotional detail.

Politicians who favor capital punishment and who keep the legal regime in place are equally focused on signaling. They signal that they care about the emotions of the victims of crimes and of the relatives of the victims, and at the same time they signal that they emotionally identify with those who care about the victims of crime. In other words, they signal that they feel connected to the large majority of humanity. And that kind of signal is vitally important for democratic politicians.

Opponents of capital punishment simply don’t have the same signaling power. For example, there’s no large constituency for signals about sympathy for criminals or for signals about anti-instrumentalization. Politicians don’t stand a lot to gain from such signals, and neither do citizens concerned about how others think of them. On the contrary, they risk signaling emotional indifference for the plight of victims and hence they risk lowering their moral standing.

This asymmetry in signaling power between proponents and opponents can explain the persistence of rational arguments in favor of capital punishment, even after they have been shown to be wrong or inconsistent with the facts. (That’s the case for the arguments based on the deterrent effect for instance – see here and here – but also for the arguments based on retribution which are hopelessly circular: a certain punishment is appropriate for a crime because that crime requires a certain punishment). Proponents of capital punishment obviously can’t justify it simply on the basis of emotional identification. They need a more rational story as a cover. And as long as this story can be used successfully in the signaling process, that will do, whether or not the story is factually or logically correct. That will do, because opponents who point to factual or logical failings in the story amplify the signaling of the proponents: by pointing to these failures, the opponents signal rationality and detachment rather than emotional connection, and they thereby make the case for the proponents.

This is counterintuitive, given that it’s most often the opponents of capital punishment who are accused of emotionality and a lack of toughness, but I think it’s the right conclusion.

Limiting Free Speech (44): Hate Speech as a Speech Act

As in J.L. Austin’s phrase, “how to do things with words”, we actually do things when we speak. When we use language, we don’t just say things, describe things or communicate, but we also act, very much in the same way as when we pick up a stone or push someone around. When we use language in education we educate people and make better persons. When we apologize we heal people. When we command we make people do certain things. Etc. Now, my argument is that hate speech is a kind of speech act understood in this way, and more specifically it is a form of command. Those who engage in hate speech typically use speech that takes the form of a command, explicitly or implicitly. They want to coerce other people to act in certain ways, and they do this in two ways (usually combined in one single speech act):

  • They want to coerce their (potential) followers to act in certain ways towards hated groups. For example, people proclaiming that homosexuals are sinners are not just describing a reality (or what they believe to be reality) or communicating information about homosexuals (or what they believe to be information). On top of that, they also want other people to avoid homosexuals, to ostracize them, to discriminate them, or even to kill them. To the extent that they succeed, they engage in speech acts, and not merely speech.
  • They also want the hated groups to act in a certain way. In most cases, they want them to go away, know their place, keep silent, change their habits etc. The burning of a cross in the front yard of the only African-American family in the neighborhood is a clear sign that these people aren’t welcome. Again, when these speech acts succeed in driving people away they are more than just speech.

A speech act is an act or an action in the dictionary sense of the accomplishment of an objective, the causation of change by the exertion of power etc. Given that it’s not “pure speech” it’s not obvious that it should be a priori and absolutely protected by freedom of speech. (Just like abuse in private is not merely a private act and shouldn’t a priori be protected by the right to privacy). It’s a form of speech that, like other actions, has real consequences for real people. These people may have rights that protect them against these consequences, such as the freedom to choose a residence, the right not to be discriminated against, the right to life etc. When speech acts violate these rights, there’s some balancing to do and it’s not the case that some people’s right to free speech always takes precedence.

Measuring Human Rights (14): Numbers of Illegal Immigrants

Calculating a reliable number for a segment of the population that generally wants to hide from officials is very difficult, but it’s politically very important to know more or less how many illegal immigrants there are, and whether their number is increasing or decreasing. There’s a whole lot of populist rhetoric floating around, especially regarding jobs and crime, and passions are often inflamed. Knowing how many illegal immigrants there are – more or less – allows us to quantify the real effects on employment and crime, and to deflate some of the rhetoric.

Immigration is a human rights issue in several respects. Immigration is often a way for people to escape human rights violations (such as poverty or persecution). And upon arrival, immigrants – especially illegal immigrants – often face other human rights violations (invasion of privacy, searches, labor exploitation etc.). The native population may also fear – rightly or wrongly – that the presence of large groups of immigrants will lower their standard of living or threaten their physical security. Illegal immigrants especially are often accused of pulling down wages and labor conditions and of creating native unemployment. If we want to disprove such accusations, we need data on the numbers of immigrants.

So how do we count the number of illegal immigrants? Obviously there’s nothing in census data. The Census Bureau doesn’t ask people about their immigration status, in part because such questions may drive down overall response rates. Maybe in some cases the census data of other countries can help. Other countries may ask their residents how many family members have gone abroad to find a job.

Another possible source are the numbers of births included in hospital data. If you assume a certain number of births per resident, and compare that to the total number of births, you may be able to deduce the number of births among illegal immigrants (disparagingly called “anchor babies“), which in turn may give you an idea about the total number of illegal immigrants.

Fluctuations in the amounts of remittances – money sent back home by immigrants – may also indicate trends in illegal immigration, although remittances are of course sent by both legal and illegal immigrants. Furthermore, it’s not because remittances go down that immigrants leave. It might just be a temporary drop following an economic recession, and immigrants decide to sweat it out (possibly supported by reverse remittances for the time of the recession). Conversely, an increase in remittances may simply reflect technological improvements in international payment systems.

Perhaps a better indicator are the numbers of apprehensions by border-patrol units. However, fluctuations in these numbers may not be due to fluctuations in immigration. Better or worse performance by border-patrol officers or tighter border security may be the real reasons.

So, it’s really not easy to count illegal immigrants, and that means that all rhetoric about illegal immigration – both positive and negative – should be taken with a grain of salt.

More posts on this series are here.

Capital Punishment (33): It’s Not What You Do, But What You Do to Whom

In the U.S., and probably also in other countries that still use the death penalty, not all murders are alike. Ostensibly, the death penalty is the supreme punishment for the supreme crime, i.e. murder. But some cases of the supreme crime are more likely to result in the supreme punishment than others. For example, it’s well-known that a black person who has committed murder is more likely to be executed than a white person, even if the details of their crimes are very much alike.

It seems that the moralistic justification of capital punishment – that the worst of crimes should be met with the severest of punishments – is just talk, applicable in some cases but not in others. This inconsistency is incompatible with moral talk, since morality is precisely about general and blind rules. The inconsistency becomes even more clear when we consider that it’s not just the race of the perpetrator that makes it more or less likely that horror is answered with horror. People who murder whites are much more likely to be executed than those who murder blacks.

I don’t want to sound conspiratory, but it does seem like the death penalty is an instrument in the continued subjugation of blacks and the protection of whites.

On top of the race issue, there’s also a class issue:

A defendant is much more likely to be sentenced to death if he or she kills a “high-status” victim, according to new research by Scott Phillips, associate professor of sociology and criminology at the University of Denver (DU).

According to his research published in Law and Society Review, (43-4:807-837), the probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree.

“The concept of arbitrariness suggests that the relevant legal facts of a capital case cannot fully explain the outcome: irrelevant social facts also shape the ultimate state sanction” Phillips says. “In the capital of capital punishment, death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others.”

Phillips research is based on 504 death penalty cases that occurred in Harris County, Texas between 1992 and 1999. (source, source)

More on capital punishment is here.

The Causes of Human Rights Violations (24): Political Rhetoric, Violence and Free Speech

My two cents about the shooting of Gabrielle Giffords:

  • The attack was obviously politically inspired, even though the shooter may have been insane. An insane act isn’t necessarily apolitical. There may or may not be a direct causal link between the attack and the “heated political rhetoric” that has come to characterize American politics and that often borders on incitement. (Compared to other western democracies, the political language is indeed extreme in the US). If there is such a link, it will be very hard to establish, given what we know about the psychology of the attacker.
  • In general, violent rhetoric can contribute to actual violence (see this paper for example). The case of the Rwanda genocide is well-known. And we don’t need to go and look at extremes in order to find cases of hate speech turning into hate crime. There are not a few pedophiles who have had there whereabouts shouted from the rooftops and who suffered the consequences. Given the omnipresence and ease-of-use of the media in developed societies, what is published and broadcast through these media may very well nurture or even provoke extremism and hate in society. It’s futile to deny this possibility.
  • This general conclusion does not warrant the automatic linking of a case of violence to instances of political rhetoric that seem to be a possible inspiration. In other words, it’s not because Sarah Palin was silly enough to publish a map with cross-hairs “targeting” Giffords (among others) in a purely political and non-violent way, that her actions caused the attack. Maybe these actions contributed, maybe not. Most likely we’ll never know. And even if they did contribute in driving a sick person over the edge – which is not impossible – then they are most likely only one element in a large set of causal factors, including the perpetrator’s education, medical care (or lack thereof), the ease with which he could acquire a gun etc. That large set doesn’t drown individual causes but it does diminish the importance of each (possible) cause. Human motivation and the determinants of human action are almost always highly complex. (Something which is too often forgotten in criminal sentencing).
  • Given the general possibility of speech resulting in violence, is that possibility a sufficient reason to limit our freedom of speech, even before the actual violence occurs? Yes, but only in very specific cases, namely those cases in which the link between speech and (possible) violence is clear. John Stuart Mill used the example of an excited mob assembled in front of the house of a corn dealer accused of starving the poor. Hate speech in such a setting is likely to lead to violence, while the exact same words printed in an obscure magazine are not. The words in the magazine should be protected by freedom of speech; the words of the mob leaders probably not.
  • Yet even when words should be left free by the law, morality requires of speakers that they consider the possible consequences of speech.
  • Are the events we witnessed recently of the same nature as the words of the mob leaders? And what about similar recent events? I don’t think so. Which means that the people concerned have not abused their freedom of speech.
  • Does that mean that they used their freedom in a good way? No, it doesn’t. Heated rhetoric is almost never the best way to talk, not even for the purposes of the speaker. It doesn’t tend to accomplish a lot or to further anyone’s interests (apart from the interest in getting attention). So those of us who insist on “turning it down a notch” have good reasons to do so. This insistence obviously doesn’t imply curtailment. It’s just a question, and it deals with form rather than content. People are generally too fast to claim their right to free speech when confronted with criticism of the way in which they use or abuse this right. Criticism of speech doesn’t automatically imply the will to prohibit speech, and freedom of speech doesn’t mean freedom from criticism. Quite the opposite.

More here and here.

Racism (16): Race and Crime

It’s well-known that African-Americans make up a disproportionate part of the U.S. prison population. Racists of course have an easy explanation for this, but what is the real explanation? Part of it is probably racial profiling and bias among jury members. Another part of the explanation can be poverty, unemployment and lower education, burdens from which African-Americans also suffer disproportionately. And although crime has many possible causes, there’s some evidence that at least some types of property crime go up during recessions. This indicates that there’s a link between crime and poverty, something which in turn can explain different arrest ratios across races given the different poverty rates across races.

There’s an interesting paper here studying the effects of both labor market conditions and asset poverty on the property crimes involvement of American males. It turns out that poverty and labor market outcomes account for as much as 90% of the arrest rates ratio.

Capital Punishment (31): The Incapacitation Argument For Capital Punishment

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but another common argument is incapacitation: killing criminals guarantees that they cannot commit further crimes. It’s likely that this argument plays an important role in many decisions to impose capital punishment, since members of juries may fear, mistakenly, that life imprisonment without parole actually means something like “on average 10 years in prison” (see here).

The obvious counter-argument is that life imprisonment, when it really means “life”, is equally incapacitating. True, say the proponents of capital punishment, but criminals may kill when in prison. In particular, they may kill fellow inmates. OK, so let’s do a thought experiment. Imagine that we don’t use the death penalty for murder, but incarcerate murderers for life, together with only fellow murderers. The only killing they can do is of their fellow incarcerated murderers.

Would that kind of killing be objectionable to proponents of capital punishment? I think it shouldn’t be, since the victims of this kind of killing would also have been killed under a regime of capital punishment. Maybe opponents would object that this system doesn’t treat all murderers the same: some get killed, others not. However, I fail to see what difference it makes to a murderer if she is killed by fellow inmates rather than by the state, or if she is killed while others aren’t. She’ll be dead, and in no position to complain about others being still alive. (And don’t tell me murder by the state is preferable because it’s more “humane”). Moreover, our existing regimes of capital punishment don’t manage to kill all murderers either. And finally, non-murderers can also kill while in prison. Should we execute them preemptively?

For opponents of capital punishment, it does make a huge difference whether murderers are killed by the state or by their colleagues: murder by the state means the instrumentalization of human beings, whereas murders between inmates are regrettable and to be avoided, but not more or less than murders in general.

More on capital punishment here.

Gender Discrimination (23): Reverse Gender Discrimination in Criminal Justice

Using data obtained from the United States Sentencing Commission’s records, we examine whether there exists any gender-based bias in criminal sentencing decisions. … Our results indicate that women receive more lenient sentences even after controlling for circumstances such as the severity of the offense and past criminal history. …

Studies of federal prison sentences consistently find unexplained racial and gender disparities in the length of sentence and in the probability of receiving jail time and departures from the Sentencing Guidelines. These disparities disfavor blacks, Hispanics, and men. A problem with interpreting these studies is that the source of the disparities remains unidentified. The gravest concern is that sentencing disparities are the result of prejudice, but other explanations have not been ruled out. For example, wealth and quality of legal counsel are poorly controlled for and are undoubtedly correlated with race. …

The findings regarding gender in the case of serious offenses are quite striking: the greater the proportion of female judges in a district, the lower the gender disparity for that district. I interpret this as evidence of a paternalistic bias among male judges that favors women. (source)

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.

Discrimination (7): Statistical Discrimination v. Background Checks?

Employers often use background checks before deciding to hire someone. For example, they may check the criminal record of job candidates, their credit scores, health history etc. It’s somewhat understandable although not always acceptable that they are reluctant to hire someone who has been in jail, has been sick for a long time, or has proven to be undisciplined by not paying her bills.

Let’s focus on ex-convicts for the moment. These people have a hard time as it is, sometimes even for no good reason because they shouldn’t have been incarcerated in the first place (I argued here that many countries, and especially the U.S., put too many people in jail). So, allowing employers to use criminal background checks can force ex-convicts into a vicious circle: unable to find a job, they may be forced to go back to crime.

Furthermore, there’s a racial aspect to all of this: in the U.S., African Americans are more likely to be ex-convicts. According to some, this racial discrepancy is precisely the reason to allow criminal background checks. If employers aren’t allowed to check individual candidates, they will resort to statistical discrimination: they know that blacks are more likely to have a criminal record and so they won’t hire any blacks at all, just to be safe.

However, if you espouse this argument in favor of background checks, you essentially want to make things better for one disadvantaged group – blacks, who are generally disadvantaged in employment – by making things worse for an even more disadvantaged group, namely ex-convicts. And that’s assuming that employers will hire more black people if they can use criminal background checks; but assuming that means assuming there’s no racism. Helping a disadvantaged group by harming an even more disadvantaged group is plainly absurd, and you can only fail to see that it’s absurd if you have an overriding fear of government regulation. Regulation should be kept in check but not at any price. I think in this case regulating businesses and outlawing background checks is the appropriate thing to do.

Let’s turn briefly to another type of background check: credit scores.

[M]illions of Americans, as a direct consequence of looking for work, have lower credit scores. … The use of credit checks in employment decisions should be banned. It is a form of discrimination against the poor — the codification and enforcement of class barriers. It is therefore a form of discrimination against those groups more likely to be poor. (source)

It seems there’s a

growing tendency of HR departments to check the credit scores of potential employees apparently deeming this data to be an important predictor of employee behavior. This creates a Catch-22 scenario for the unemployed where you can’t improve your credit score unless you get a job and you can’t get a job until you improve your credit score. (source)

Apart from the obvious fact that credit scores seem to be a type of knowledge that is much less useful for an employer compared to a criminal record – if your house burned down and your credit score is low as a result, does that make you a bad employee? – there’s a real issue for the poor here. They shouldn’t be discriminated against just for being poor. It’s not just a lack of conscientiousness or discipline that can lower your credit score. Back luck and poverty won’t help either. Some say the free market and competition will take care of this: employers stupid enough not to hire good poor people simply because they have a credit problem will lose out. Their competitors who don’t engage in credit checks will hire them, and those businesses will acquire a commercial advantage. I don’t know. Seems awfully optimistic to me.

Migration and Human Rights (34): The “Criminal Immigrant” Stereotype, Ctd.

It’s simply not true that immigration leads to an increase in crime rates. True, immigrants are often – but not always – relatively poor, undereducated and – initially at least – not well adjusted to their host community. But none of that seems to be a sufficient reason for higher crime rates among immigrants.

On the contrary, there’s some evidence here of immigration actually reducing crime rates:

During the 1990s, immigration reached record highs and crime rates fell more precipitously than at any time in U.S. history. And cities with the largest increases in immigration between 1990 and 2000 experienced the largest decreases in rates of homicide and robbery. … Wadsworth contends that looking at crime statistics at a single point in time can’t explain the cause of crime rates.

Using such snapshots in time, Wadsworth finds that cities with larger foreign-born and new-immigrant populations do have higher rates of violent crime. But many factors—including economic conditions—influence crime rates.

If higher rates of immigration were boosting crime rates, one would expect long-term studies to show crime rising and falling over time with the influx and exodus of immigrants. Instead, Wadsworth found the opposite. (source)

There’s yet another study here showing that Hispanic Americans are less violent than whites or blacks.

A simple juxtaposition of immigration trends and crime trends can already make clear how silly it is to claim that higher immigration rates produce higher crime rates.

What could be the explanation? Why does immigration reduce crime rates? Maybe the culture and religion of the immigrants has something to do with it. Or maybe it’s true that people migrate because they want to have a better life, and that engaging in crime is incompatible with this motivation. Or perhaps the fact that immigrants tend to live in extended families and close-knit communities discourages crime.

I’ve said it before: although correlation doesn’t always equal causation, these numbers are compelling, even if we accept some possible caveats (illegal immigrants, when committing a crime, are perhaps more likely to flee abroad and hence not end up in incarceration statistics, and there may be some underreporting of crime in communities with a lot of illegal immigrants). Politicians should therefore stop exploiting irrational fears about immigrant crime for their own partisan gain. You don’t solve the crime problem by closing the border, and certainly not by ignoring overwhelming scientific evidence.

Discrimination (6): Should People Be Liable For Unconscious Discrimination?

First of all, it’s evident that people often have unconscious motives for their actions. For example, parents “wishing the best” for their children can act out of frustration about their own past failures. So it’s likely that some acts of discrimination are based on similar “deep” motives. Some of us who genuinely believe that we are colorblind may still avoid black neighborhoods at night, cross a lonely street when a tall black male comes our way, or favor a CV sent in by someone with a “‘Caucasian” name. Tests have shown that people are more biased than they admit to themselves.

So we may be violating anti-discrimination laws without “really” and consciously wanting to. You could say that in such cases we shouldn’t be prosecuted for breaking the law, because there is no intent on our part. Discrimination takes place but no one really wants it to take place. True, normally there’s an intent requirement when deciding liability: if you drive your car and you hit someone who crosses the road where he or she shouldn’t do so, you’re not criminally liable. You killed a person but didn’t intend to. In some cases, the lack of intent diminishes rather than removes liability: if you’re in a fight with someone and the other person dies because of your actions, you won’t be charged with homicide but with the lesser crime of manslaughter if you didn’t intend to murder.

As the example of manslaughter already makes clear, intent isn’t always necessary for liability. Hence, lack of intent can’t be the reason not to make unconscious discrimination a crime.

Anyway, intent or the absence of it is often very difficult to prove. In the case of homicide/manslaughter, you can use witness accounts or physical evidence, you can reconstruct the crime and try to figure out if the killing was planned or intended, or you can interrogate the perpetrator, and even then it’s rarely easy. Things seem to be much more difficult still in cases of unconscious discrimination. Looking for intent is basically trying to look inside people’s minds, which isn’t obvious, and when people fool their own minds it’s becomes even harder.

If we accept that unconscious discrimination should be a crime in certain cases, and perhaps equivalent to conscious discrimination, then the problem is how to prove that it took place. In the case of conscious discrimination, you can often rely on the utterances of the person(s) who discriminate. That’s evidently impossible in the case of unconscious discrimination. Perhaps you can’t prove it in individual cases – if one black person’s CV is rejected, it’s probably impossible to say it’s because of implicit or unconscious racism. However, if a company rejects a large number of such CVs, and correcting for other factors such as education or skill level doesn’t remove bias in the distribution, then you may perhaps have evidence of discrimination (that’s a technique that’s useful in cases of conscious discrimination as well, by the way). So you would need to rely on statistical analysis, something that usually isn’t done in the determination of criminal liability. It’s not because x % of all killings are manslaughter that everyone charged with a killing has x % change of “getting away” with manslaughter. The decision to sentence someone for the crime of murder or manslaughter is always made on an individual basis and not a statistical one, although past conduct of the suspect can sometimes come into play.

An additional difficulty: if we accept that laws aren’t only meant to punish but also to prevent and deter, it seems that the latter goal is futile in the case of unconscious discrimination. People who are not aware that they engage in discriminatory activities will hardly be persuaded by laws telling them to stop doing so.

I’m personally not yet ready to take a firm position on these issues. For more information on this topic, take a look at this interesting paper.

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.

Limiting Free Speech (41): Crush Videos

In its irresistible march toward the deification of the First Amendment, the U.S. Supreme Court has again decided in favor of free speech absolutism. (And it’s not like I don’t care about free speech). In United States v Stevens the Court ruled that a federal law criminalizing the commercial production, sale, or possession of so-called crush videos was an unconstitutional abridgment of the First Amendment right to freedom of speech. The movies in question are depictions of cruelty to animals, used to satisfy a particular “sexual fetish”. They feature the intentional torture and killing of helpless animals, often by women wearing high-heeled shoes who slowly crush animals to death while talking to them in a dominatrix voice (source).

Let’s assume that cruelty to animals is universally considered a crime. If we can agree on that, we can – I think – also agree that filming a crime and distributing the movie is not, by definition, a crime in itself. On the contrary, it can help solve the crime. Think of the Rodney King video for example. However, if a crime is filmed, and the makers of the film fail to notify the authorities, then they can be considered as accomplices or guilty of criminal neglect. The crime then is the failure to notify the cops, not the act of making a video. The video itself should not be banned or criminalized, only the failure to report a crime.

But we can go one step further. In the case of crush videos, the video of animal cruelty is not contingent to the act of cruelty itself. In other words, the act of cruelty – the crime – would not have taken place had it not been filmed. The precise purpose of the act of cruelty is its videotaping and the subsequent sale of the videotaped cruelty. There would have been no crime had it not been filmed. So, we can reasonably assume that the act of cruelty, the filming of it, and the distribution of the film are in fact one and the same act. It’s therefore wrong to claim that we are dealing here with a simple case of free speech. The speech part of the act – distributing the film – is inseparable from the other parts of the act – cruelty and filming. If you care about the enforcement of anti-cruelty laws, you should make the distribution of such movies illegal and carve out an exception to free speech. If, on the contrary, you allow the distribution, then you provoke, condone or at least accept the existence of cruelty. In the words of Alito – dissenting:

criminal acts … cannot be prevented without targeting … the creation, sale, and possession for sale of depictions of animal torture.

If you enforce anti-cruelty laws, you de facto limit freedom of speech. So, either you take an absolutist position on free speech and you have to allow animal cruelty and violation of the law, or you don’t want to allow that and then you can’t take an absolutist position.

Anyway, free speech absolutism isn’t a widely held position, not even in the Supreme Court. Many kinds of speech have historically been granted no constitutional protection by the Court (“well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem”):

However, in this case, the Supreme Court was not inclined to add an exception for another type of speech, even though the harms caused by animal cruelty perhaps outweigh those caused by obscenity for instance. This disinclination is even less understandable when you consider that in United States v Stevens, Justice Roberts – for the majority – cited the older rationale for prohibiting child pornography, namely that it’s a special case because the market for it is intrinsically related to the underlying abuse. How is the same rationale not applicable in the case of animal cruelty? It seems to me that both child pornography and depictions of animal cruelty fall within the Court’s longstanding jurisprudence that “speech or writing used as an integral part of conduct in violation of a valid criminal statute” (source) is a valid exception to the general rule of freedom of speech.

The Ethics of Human Rights (32): Human Rights and the Chain of Causation

Who causes human rights violations? Causation is a key factor in the attribution of moral and legal responsibility, so it’s an important topic in human rights talk. The problem is that there is often not one single cause of rights violations, and hence not one single violator. Rights violations can be the collective responsibility of an entire group or a government for instance, but the issue I want to focus on here is another type of collective responsibility. It’s possible that there is a chain of causation: a series of events taking place over a period of time, and one event causes the next one until a rights violation occurs. The question is then: is it only the last moral agent, the last one in the chain of causation that results in a rights violation, who is the violator and the morally and legally responsible party? Or do some of the agents earlier in the chain of causation also carry some responsibility?

Let me give an example. Take the case of a drunk driver causing a fatal accident and thereby violating the right to life of his victim. Just before the accident, a pub-owner willingly sold the visibly intoxicated man more alcohol. You could argue that both persons caused the accident: the drunk because of his drunk driving, and the pub-owner because he sold the drinks. Both could have taken action to avoid the accident (assuming that the driver wasn’t sufficiently intoxicated before he bought the extra drinks from the pub-owner). And because they both could have acted otherwise, they are both responsible – morally and legally – for what happened. Both have violated the rights of the victim.

Causing something isn’t a sufficient condition for responsibility. You could go further down the chain of causation and claim that the pub-owner’s parents also caused the accident, because they had the choice of having or no having a child. By having the child, they initiated a chain of causation that led to the accident. They could have taken action to avoid the accident. However, no one would claim that they are thereby responsible for the accident. The difference between the parents on the one hand and the pub-owner and the driver on the other hand, is that the parents could not have foreseen the possible consequences of their actions. Hence, responsibility requires causation plus foresight rather than simply causation (some would say that intent should be added as well). (Of course, in some legal contexts, cause is sufficient for liability: if I drive my car into another one, I may be liable for the damages even if I didn’t intend what happened and could not have foreseen it. Product liability is another example. In other legal contexts, cause is not necessary: if my dog bites you, I’m liable, even though I didn’t cause the harm. But those aren’t the cases I’m interested in).

The pub-owner and the driver could have and should have foreseen the possible consequences of their actions, and probably did foresee them in some part of their brain. We all learn that some consequences flow from some actions, with high degrees of probability. And yet they still went ahead with their actions. Hence both are responsible for what happened because they caused it, because they could have acted otherwise, and because they could have foreseen the consequences. The chain of causation leading up to the rights violation goes back many steps (and many years if not centuries), but the chain of responsibility stops somewhere along the road. It stops with the first person in the chain of causation able to foresee the ultimate result of the chain and able to act otherwise. In our example, the pub-owner.

But, of course, this example is too simple. Often we have to go back more than two steps in the chain of causation to find the first point of responsibility. Suppose the pub-owner bought his pub from some other guy who knew at the time about the reckless way in which the pub-owner serves his customers. (Suppose the pub-owner did something similar before he bought his current pub). How far back in time and in the chain of causation should we be allowed to go in order to attribute responsibility? And do all responsible parties share the same “amount” of responsibility? Probably not; that would violate our moral intuitions, which tell us that the driver carries the heaviest burden. He had many alternative options: he could have decided not to drink so much, not to go to the pub in the first place, or take a taxi home etc. The pub-owner could of course have decided to stop selling booze, but maybe he didn’t know that the drunk was intending to drive back home. And if he knew, how could he have stopped him driving back home? The person selling the pub also could have decided to sell it to someone else, but perhaps there wasn’t another possible buyer, and perhaps he believed in redemption and didn’t want to judge a person’s future on the basis of past mistakes.

But if not all responsible parties share the same “amount” of responsibility, how do we differentiate between the levels of responsibility of the different parties and calculate each party’s share? Does time play a role? Does responsibility diminish as time passes? Those are terribly difficult questions and most of the time we just forget about them and simply punish the last link in the chain and accord him or her the full weight of responsibility, whether this is just or not. One example in which we do try to answer these questions is when a judge or a jury takes attenuating circumstances into account when sentencing: for instance, a criminal may receive a more lenient sentence when it is clear that childhood neglect or abuse contributed to his actions. However, we rarely give the parents their part of the punishment in such cases.

These questions are relevant is a huge number of human rights cases. Take the more important example of world poverty. To some degree, one can argue that the West shares some of the responsibility for poverty in the Third World (Thomas Pogge is famous for this argument). It imposes trade restrictions, it supports corrupt dictators and deficient institutions, and it inflicted colonial rule. Some of these actions go back some steps in the chain of causation. For example, a corrupt dictator may be the last cause in the chain leading to poverty, but support for this dictator by the West is an earlier cause. In the case of colonialism, the chain of causation is complicated by the transgenerational aspect: to what extent are the people in the West who are currently alive responsible for the actions of their forefathers? More on this question here.

Capital Punishment (28): Extreme “Tinkering With the Machinery of Death” in the U.S.

The title of this blog post refers to a famous quote by former US Supreme Court Justice Harry A. Blackmun. It’s my belief that the U.S. Supreme Court, in its desire to both uphold capital punishment and simultaneously limit its scope, has maneuvered itself into an incoherent position. It has “tinkered with the machinery of death” to such an extent that the application of capital punishment in the U.S. should be viewed as a complete mess, even by those of us who don’t have an instinctive repulsion for capital punishment, who don’t make a philosophical or moral argument against it, and who don’t agree that there are so-called “systemic problems” in the application of capital punishment in the U.S. (as opposed to the moral problems of capital punishment per se), such as

  • the racist component
  • the discussions about non-cruel methods
  • the failure of legal representation
  • the extensive appeals procedures
  • the sadistic death row phenomenon
  • or the lack of deterrence.

(For irregular readers, I’m personally convinced that there are moral reasons not to apply the death penalty, and that these are sufficient reasons. I view both the systemic problems cited above and the inconsistent reasoning of the Supreme Court discussed below as supplementary reasons for those who are difficult to convince with moral reasons alone).

Here’s an overview of some of the contradictory judgments of the Supreme Court. There’s a tendency, among many supporters of the death penalty in the U.S., to extend its reach beyond homicide. (I believe that’s a natural tendency, especially for those counting on a deterrent effect. If the main objective of capital punishment is the deterrence of crime, then why stop at homicide? There are many other heinous crimes that could possible be reduced with an effective deterrent and if it can be argued – but I doubt it – that capital punishment is such an effective deterrent, then why shy away of it?).

In Coker v. Georgia, the Court had to decide whether the crime of rape of an adult woman warrants the penalty of death. The Court argued that it doesn’t, since rape does not mean taking a life. Again, in Enmund v. Florida (does a homicide accomplice who does not kill or attempt to kill deserve the death penalty?), the Court judged that capital punishment should not be a possible punishment for crimes that do not involve the death of another human being. (This is part of the doctrine of proportionality, see below).

And yet, in Kennedy v. Louisiana, the Court stated that crimes against the state, such as treason and espionage, but also terrorism and drug kingpins etc. may be deserving of death even if no loss of life was involved. I find this distinction highly arbitrary. From the point of view of an opponent of capital punishment such as me, it’s obviously good that the Court imposes some restrictions on the sentence, but doing so in this arbitrary way just serves to undermine the legitimacy of these restrictions and opens the door to future reversals.

Another restriction imposed by the Court is based on the degree of culpability of offenders and their capacity to evaluate and control their actions. In Thompson v. Oklahoma for instance, the Court examined the constitutionality of executing child offenders (under the age of 16). The Court decided that children are generally less culpable for their crimes because, compared to adults, they are

  • less able to judge the consequences of their actions
  • more emotional and less able to control their actions
  • less prone to “cold calculation” and therefore there is less reason to assume a deterrent effect.

Moreover, the Court assumed that offenses by the young represent a failure of society, school and the family:

youth crime as such is not exclusively the offender’s fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth. (source)

Again, nice to see the Court limiting the scope of the death penalty, but why assume that adult criminals don’t also represent a failure of society? If young people offend because of failure of the educational system for instance, is it safe to assume that these causes magically disappear after a certain age? (Of course, I don’t assume that “society” causes all crime, but crime does, in certain cases, have causes beyond the decisions of the criminals). And are there really no adults who are relatively less able to judge the consequences of their actions and act in a non-emotional and calculated way?

Yes, says the Court, but at the same time it limits this category of adults in a somewhat arbitrary way to the mentally retarded (for example Atkins v. Virginia). I believe the reduced culpability of the mentally retarded is obviously a good thing, but why stop there? Aren’t there any “non-retards” who also can claim diminished culpability? And, anyway, where to put the border between the retarded and the rest? There’s always going to be a gray zone, and hence arbitrariness.

Furthermore, recent judgments of the Court tend towards undoing the restriction on capital punishment based on diminished culpability. Scalia for instance (dissenting in Atkins v. Virginia) claimed that culpability and deservedness depend not only on the mental capacity of the criminal but also on the depravity of the crime. One can read this as a justification of capital punishment even for children or the mentally retarded if their crime is depraved enough.

In Kennedy v. Louisiana, the Court also expressed contradictory views on deterrence. Deterrence has always been an important justification for the Court, but in Kennedy v. Louisiana the Court decided that in the case of child rapists, capital punishment would encourage rather than deter the crime. It claimed, correctly I think, that the death penalty for this crime could encourage non-reporting. A third party, for example the wife of the rapist, could decide not to report the offender for fear of capital punishment, which then leads to the continuation of the crime, and hence the failure of deterrence.

Again, a welcome restriction from the point of view of an abolitionist, but also a highly arbitrary one. The same non-reporting effect of the death penalty can occur in other types of crime. Moreover, the consideration of counter-deterrence effects in this case is very unusual for a Court that consistently ignores evidence against the deterrent effect.

Finally, the argument of proportionality cited above and used against capital punishment for crimes such as rape (see also Gregg v. Georgia) is a welcome limit, but it also is an argument that’s used very selectively and arbitrarily by the Court. In non-capital cases, the Court often refuses to consider the lack of proportionality as a reason to undo decisions of other courts. In Rummel v. Estelle for instance, the Court refused to see anything wrong with a sentence of life imprisonment for obtaining $120.75 by false pretences!

All these inconsistencies and arbitrary limits and restrictions in the Supreme Court’s handling of capital punishment have turned this sentence into a shambles. Many of us think it’s much worse than that, but a shambles may be a sufficient reason for others to review the practice.

Religion and Human Rights (25): The Eurabia Falacy

If immigration isn’t opposed because of bogus economic reasons or bogus law and order reasons, then it’s opposed on the grounds of equally bogus cultural reasons. Excessive immigration is said to fundamentally change the culture of the destination region: Europe will turn into Eurabia, just like the Protestant U.S. were once believed to be on the verge of a Catholic takeover following Irish and Southern European immigration.

But even limited immigration will not save us given the supposed “high fertility rates” of immigrants:

That Muslims are grinding out babies ready to take over Europe is an outdated canard. The Eurabia authors worry about declining European fertility, but in fact the Muslim decline is much sharper. In 1970, women in Algeria and Tunisia averaged about seven children each. Now, according to the CIA World Factbook, they average fewer than 1.8. The French rate is almost exactly two. Parisian demographers Youssef Courbage and Emmanuel Todd demonstrate in their 2007 book “Le Rendez-vous des Civilisations” that after most men in a country become literate, eventually a majority of women becomes literate, and then fertility plunges. This demographic transition has now happened in most Muslim states. At last count Algerian women living in France averaged an estimated 2.57 children, or only slightly above the French rate. Moreover, the fertility rate of north African women in France has been falling since 1981. Eurabia is not a demographic prospect. …

The other problem with forecasting numbers of European Muslims in 2100 is the presumption that sixth-generation European Muslims will still be a foreign body here: Islam as a bacillus that even secular former Muslims carry around, forever dangerous. This ignores the transition affecting many nominal Muslims in France. …

Although here and there Muslims have made France a little more north African or Islamic, the influence seems to be more the other way: Muslim immigrants are being infected by Frenchness. (source)

Remember also that people in the 1960s were saying that the higher birthrates among Catholics would mean a swift “Catholic takeover” of Europe and the US:

In the United States the lower birth rate of the Anglo-Saxons has lessened their economic and political power; and the higher birth rate of Roman Catholic families suggest that by the year 2000 the Roman Catholic Church will be the dominant force in national as well as in municipal or state governments. A similar process is helping restore Catholicism in France, Switzerland, and Germany; the lands of Voltaire, Calvin, and Luther may soon return to the papal fold. (source)

Now, of course I’m not insensitive to the plight of culture. A national or regional culture is an important source of identity and wellbeing, and I believe the whole world gains when even a small culture is allowed to survive. I have an older post here lambasting the demographic aggression of China in Tibet. My point is not that immigration can never be a cultural problem, but that the size of the problem is systematically inflated, possibly as a cover for outright xenophobia. In this respect, the “problem” resembles the two other “problems” caused by immigration: more poverty and more crime.

Migration and Human Rights (26): The “Criminal Immigrant” Stereotype, Ctd.

Contrary to right-wing rhetoric and popular belief (examples here and here), there isn’t much of a correlation between Latino immigration in the U.S. and crime rates. There’s an interesting new article about this here confirming my previous claims (to make it even more interesting: it’s from a conservative magazine).

Nearly all of the most heavily Latino cities have low or even extremely low crime rates, and virtually none have rates much above the national average. Eighty percent Latino El Paso has the lowest homicide and robbery rates of any major city in the continental United States. This is not what we would expect to find if Hispanics had crime rates far higher than whites. Individual cities may certainly have anomalously low crime rates for a variety of reasons, but the overall trend of crime rates compared to ethnicity seems unmistakable.

Maybe we should assume that the numbers are bit too rosy because of the tendency of illegal immigrants to underreport crime (although the article tries to correct for underreporting by comparing homicides – almost no underreporting – to overall crime). Also, the likelihood of underreporting by illegal immigrants can be offset by a possibly equal effect of criminal restraint on the part of illegal immigrants: for the same reasons that they underreport crime – fear of contacting the authorities and being identified as illegal immigrants – they stay out of trouble with the police and try to act decently.

However, if we look at it from another side, we see that incarceration data show somewhat higher levels for Hispanics or immigrants (although most Hispanics are American-born, the vast majority still comes from a relatively recent immigrant background):

the age-adjusted Hispanic incarceration rate is somewhat above the white rate—perhaps 15 percent higher on average. (source)

Still, one can’t simply conclude from this that crime is more rampant among Hispanics or immigrants. It’s still possible that instead of higher criminality we simply witness the result of harsher treatment of those sections of the population by the judicial system. Also, incarceration rates are inflated because many immigrants are in jail not because of ordinary crimes, but because of infractions of immigration law; you should exclude the latter if you want to compare Hispanic and white criminality (unless you consider infractions of immigration law as essentially equivalent to ordinary crime, which is not altogether insane; but the point of this post is to examine the claim that there are more ordinary criminals among Hispanic immigrants than among [longtime] citizens).

In addition, you should correct incarceration rates for age and gender: in general, most criminals are young men, and it happens to be the case that most immigrants are also young men. So the likelihood that immigrants end up in prison is – slightly – higher compared to the general population, not because they’re Hispanics but because they are young men. Any other, non-immigration related influx of young men in a certain area – e.g. military demobilization or a huge construction project – would have an effect on crime. (If you don’t correct for this, you’re making a common statistical mistake: see here for other examples of the “omitted variable bias”).

Finally, immigrants are relatively poor and there is a link between poverty and crime. So that can also explain the higher incarceration rate for immigrants. If you link the higher probability of poor people engaging in crime with the fact that poor people have lower quality legal representation, you have a double explanation. So, again, if Hispanics do end up in jail more often, perhaps it’s because they’re relatively poor, not because they are Hispanics and somehow racially prone to crime.

All this is limited to the U.S. People can still make the case that immigration in other countries promotes crime, but that case is made harder by the false claims about the U.S. (At least in France there’s no proof of the share of immigrants in the population having a significant impact on crime rates). These false claims are always based on anecdotes, and you’ll always be able to find criminals with foreign sounding names in order to whip up a frenzy against immigration, thereby satisfying your racist hunger and building a political following of ill-informed voters. Again a clear demonstration of the usefulness of statistical analysis in human rights issues and the danger of anecdotal reasoning.

Bonus paper here. Quote:

We examine whether the improvement in immigrants’ relative incarceration rates over the last three decades is linked to increased deportation, immigrant self-selection, or deterrence. Our evidence suggests that deportation does not drive the results. Rather, the process of migration selects individuals who either have lower criminal propensities or are more responsive to deterrent effects than the average native. Immigrants who were already in the country reduced their relative institutionalization probability over the decades; and the newly arrived immigrants in the 1980s and 1990s seem to be particularly unlikely to be involved in criminal activity.

More on migration.

Racism (11): Race and Employment, Ctd.

This study shows that black men without a criminal record are less likely to be called back for a job interview than white men with a criminal record.

These data were collected during an experiment in which different testers applied for the same jobs advertised in newspapers. The testers had fake credentials that made them equivalent in terms of education, job experience, and so on. The testers were either black and white. Some testers from each group were instructed to indicate that they had a past non-criminal drug possession offense. The data would undoubtedly have shown an even more dismal picture had the testers faked a record for a property or violent crime.

Whites with a criminal record are more than 3 times more likely to get a callback than blacks with a criminal record.

Limiting Free Speech (38): Cheering on a Criminal

Can bystanders who cheer on a criminal invoke their right to free speech, or can the government prosecute them and hence limit their right to free speech? An infamous example is public rape, a particularly horrendous crime in which a man or group of men rapes a woman in a public space, for example a bar, while being loudly encouraged by a group of bystanders, most of whom will probably be sexually aroused by the spectacle. The movie “The Accused” offers a classic depiction of such a crime, and is based on a real-life public gang-rape.

The case of cheering bystanders and their right to free speech is similar, although not identical to some other cases that I discussed previously, such as hate speech, speech that teaches the methods of illegal activity, death threats, and incitement to violence. These cases are similar because it’s assumed that all these forms of speech can produce violence or can make violence more likely.

Eugene Volokh, normally very hesitant to allow restrictions on free speech, says that prosecution should be possible

on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006). (source)

In some circumstances, the bystanders are even strict accomplices in the sense that they aid the criminal in his or her actions: their cheering may make it impossible for others to intervene because they seal off the crime scene, or the cheering can include precise instructions. One can also imagine cases in which the criminals wouldn’t have acted if not for the cheering. But even if the bystanders are not strict accomplices in any of these senses, they are surely guilty of criminal failure to assist persons in need. Instead of cheering, they should have called the police. So, in all these cases, the bystanders help the crime occur, even if all they do is vaguely encourage someone. Hence they cannot claim that their right to free speech should protect them against criminal prosecution.

Capital Punishment (23): The Truth About the Deterrent Effect

Some more data to support the claims expressed in this post, and this one. There’s a paper here presenting the results of a survey among leading criminologists regarding their opinion on the deterrent effect of capital punishment in the U.S.

The findings demonstrate an overwhelming consensus among these criminologists that the empirical research conducted on the deterrence question strongly supports the conclusion that the death penalty does not add deterrent effects to those already achieved by long imprisonment.

Of course, it’s not because experts believe something that this corresponds to the truth, but at least it’s ammunition that can be used against those proponents of the death penalty who like to claim that there is a “scientific consensus” in favor of the deterrent effect. There is no such thing. On the contrary, if there’s a consensus, it’s for the opposing view.

Another point: this kind of statistic on expert opinion, together with the data offered in the posts I linked to above, is much more convincing than the data comparing murder rates in capital punishment states and abolitionist states.

At first sight, this graph also undermines the deterrent argument, but it’s not as solid as it appears. It’s always important to control your data for other variables which can explain a difference. Maybe there are other reasons why states without the death penalty have lower murder rates, e.g. less poverty, more gun control etc. And maybe the murder rate in states with capital punishment would be even higher without capital punishment.

Hate (6): Hate Crime

Practically all crime is “thought crime” in the good ol’ common law sense of the Latin phrase actus non facit reum nisi mens sit rea – the act does not make guilt unless the mind be guilty. If we were to take a strict liability approach to all violent crime we would be obliged to place wrongful death on a par with premeditated murder. (After all, it’s not as though the lives of those killed accidentally are worth less.) John Holbo (source)

This nicely debunks the claim that hate crime laws – laws which make the punishment for an existing crime more severe when the crime was motivated by hate for the segment of the population to which the victims belongs – institute “thought crimes” and make thoughts, opinion and beliefs illegal. I believe that hateful motives are aggravating circumstances that should make a penalty more severe. A hate crime is not only a crime against the immediate victim, but is intended to terrorize a whole segment of the population. It creates therefore more victims than is apparent at first sight.

When you mistakenly believe that hate crime laws create thought crimes, you have to conclude that proponents of hate crime laws do not want to punish behavior but want to eradicate hate, or at least reduce the levels of hatred in a society. And then you have a cheap shot: how stupid to want to eradicate hate! Haha! (There’s an example of this kind of reasoning here*). Indeed, that would be stupid, if that’s what proponents of hate crime laws would propose. But they don’t. They simply want to punish crimes, and want to punish a specific kind of crime in a specific – and especially tough – way. They know that there will always be hate, that hate is the price to pay for a free society. Maybe hate crime laws can reduce the amount of hate in a society, but that’s not the main purpose. Hate crime laws want to punish behavior and want to protect people from fear. And they want to signal that society has understood the difference between hate crimes and other types of crimes, even if these other types of crimes have the same material results.

* The article linked to also irresponsibly blurs the differences between hate speech and hate crime. When you do that, it’s of course much easier to attack hate crime laws because then it becomes much more “obvious” that hate crime laws are “in fact” thought crimes.

Capital Punishment (22): Deterrence

Many crimes, especially violent crimes and property crimes, are human rights violations. The fact that theft, assault, violent attack and murder are crimes in most if not all national legal systems, indicates a high degree of normative consensus on the importance of a subset of human rights, namely the right to life, the right to property and the right to physical security.

Moreover, there’s also a high degree of consensus across different national legal systems as to the best way to react to these rights violations and to stop them from happening in the future: isolate the perpetrators in prisons. We believe that this will prevent crime in three ways:

  • It stops the criminal from re-offending during the period of his/her isolation.
  • It stops the criminal from re-offending after the period of his/her isolation.
  • It stops other people from following his/her example.

The last two bullet points are what’s called “deterrence”. We tend to believe that this deterrence effect correlates with the severity of the punishment. More years in prison means more deterrence. More brutal punishments – such as capital punishment – means even more deterrence. The belief in this correlation between degree of deterrence and degree of punishment rests on the “rational actor hypothesis”: people will take only those actions that produce more benefits than costs. If the punishment for a certain type of crime imposes a much lower cost on the potential criminal than the benefits the result from the crime – for instance a few weeks in prison for a theft worth several millions of dollars – and if the chances of being caught are reasonably low, than a “rational actor” is likely to become a criminal. Deterrence is therefore a function not only of the severity of the punishment but also of the probably of getting caught.

There are three problems with deterrence understood like this.

Irrationality

Many people don’t fit the rational actor description. They don’t make cost-benefit analyses before engaging in actions, especially not when crime is concerned (and certainly not in cases of certain types of crimes, such as “crime passionnel”).

Reductio ad absurdum

There’s an element of “reductio ad absurdum” in deterrence: if you want to deter certain types of crimes, especially crimes with very high potential benefits, you have to impose very high costs. Hence you may find that your logic leads you into acceptance of very brutal punishments: e.g. very painful, prolonged and public types of capital punishment, the killing of the family and friends of criminals etc. The danger with all cost-benefit logic in human affairs – and with utilitarian philosophies in general – is that you wind up accepting the sacrifice of some for the larger benefit of society as a whole. Rawls called this the failure to take distinctions between persons seriously. Utilitarianism means

extending to society the principle of choice for one man, and then, to make this extension work, conflating all persons into one through the imaginative acts of the impartial sympathetic spectator. Utilitarianism does not take seriously the distinction between persons. John Rawls (source)

It seems that if you want to defend deterrence, you have to stop at some point and accept that there are limits to it. There are certain things you just can’t do to people, and no amount of deterrence or other benefits can justify doing these things.

Doesn’t work, unless…

It’s not beyond doubt that deterrence works, probably in part because of the first point. There’s solid evidence to the contrary in the case of capital punishment (see here). But also for crime in general and prison sentences there’s doubt:

Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62. … most criminals are not the dispassionate rational actors who populate standard economic models. They are more like impulsive children, blinded by the temptation of immediate reward and largely untroubled by the possibility of delayed or uncertain punishment. (source)

Detention only seems to work when the odds of apprehension and punishment are very high.

The evidence suggests that when hardened criminals are reasonably sure that they will be caught and punished swiftly, even mild sanctions deter them. But not even the prospect of severe punishment is effective if offenders think they can get away with their crimes. (source)

This would seem to undermine the argument for capital punishment. Of the two elements that are believed to cause the deterrent effect, only the odds of getting caught seem to matter, not the severity of the punishment. Hence, capital punishment is useless. What counts is the odds of getting caught, not what happens when you’re caught. In general, people take costs that are relatively modest but immediate and certain much more seriously than higher costs that may or may not happen in the longterm.

Experimenters have found, for example, that even long-term alcoholics become much less likely to drink when they are required to receive a mild electric shock before drinking. Many of these same people were not deterred by their drinking’s devastating, but delayed, consequences for their careers and marriages. (source)

Measuring Human Rights (8): Measurement of the Fairness of Trials and of Expert Witnesses

An important part of the system of human rights are the rules intended to offer those accused of crimes a fair trial in court. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:

  • We only want to punish real criminals. A fair trial is one in which everything is done to avoid punishing the wrong persons. We want to avoid miscarriages of justice.
  • We also want to use court proceedings only to punish criminals and deter crime, not for political or personal reasons, as is often the case in dictatorships.

Most of these rules are included in, for example, articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights, article 10 of the Universal Declaration, article 6 of the European Convention of Human Rights, and the Sixth Amendment to the United States Constitution.

Respect for many of these rules can be measured statistically. I’ll mention only one here: the rule regarding the intervention of expert witnesses for the defense or the prosecution. Here’s an example of the way in which this aspect of a fair trial can measured:

In the late 1990s, Harris County, Texas, medical examiner [and forensic specialist] Patricia Moore was repeatedly reprimanded by her superiors for pro-prosecution bias. … In 2004, a statistical analysis showed Moore diagnosed shaken baby syndrome (already a controversial diagnosis) in infant deaths at a rate several times higher than the national average. … One woman convicted of killing her own child because of Moore’s testimony was freed in 2005 after serving six years in prison. Another woman was cleared in 2004 after being accused because of Moore’s autopsy results. In 2001, babysitter Trenda Kemmerer was sentenced to 55 years in prison after being convicted of shaking a baby to death based largely on Moore’s testimony. The prosecutor in that case told the Houston Chronicle in 2004 that she had “no concerns” about Moore’s work. Even though Moore’s diagnosis in that case has since been revised to “undetermined,” and Moore was again reprimanded for her lack of objectivity in the case, Kemmerer remains in prison. (source)

Limiting Free Speech (35): Publishing Lists of Pedophiles on the Internet, Ctd.

A follow-up from this previous post on the same subject. We should of course do our utmost to protect people, and especially children, from sexual predators. In the U.S., and to a lesser degree elsewhere, “utmost” means publishing so-called “registries” of sex offenders on the internet. These registries contain the names, addresses and offenses of people convicted for sex crimes. The purpose of the registries is to inform people about the whereabouts of convicted sex offenders and allow them to take measures to protect their children. (A few examples of registries are here, here and here; some of those are government sites, others are not).

By definition, since the purpose is protection, these registries should contain only information on people who are likely to offend again, and to offend in a way that is dangerous to children (and possibly adults). People who have been convicted in the past but are not deemed to be possible repeat offenders, or people convicted for sex crimes that are not dangerous (flashers for example) shouldn’t be included, but regularly are.

These registries are an exercise of free speech. The question here is: should they be allowed, or are they doing more harm than good? In other words: should this case of freedom of speech be restricted in order to protect other rights? (we’ve seen before how human rights can be limited when they come into conflict with other human rights). Which other rights could possibly be harmed by this exercise of free speech? One could say the right to privacy of the offenders (it’s not because you’re a convicted criminal that you automatically lose your right t privacy). But that’s not obvious. Someone’s address and criminal record aren’t private information. So registries of sex offenders aren’t, by definition, violations of the right to privacy. Hence, the right to free speech of publishers of such registries can’t be limited because of the right to privacy of the offenders.

But there are other reasons why the rights of those publishers can be limited. Registries can (and did) lead to

  • harassment of offenders, violent attacks and even murder
  • ostracism, including their family members and children (some registries even have button to print a mugshot that can be posted on the offenders’ doors)
  • violations of their right to freely choose a residence: they are either chased away, or legally prohibited from living near certain places (schools, playgrounds…); sometimes these prohibitions are so restrictive that people are forced to be homeless (in Miami, exclusion zones have created a camp of homeless offenders under a bridge)
  • violations of the right to work: people whose names are in registries are often fired from their jobs or have difficulties finding a job.

These are obviously rights violations that are serious enough to at least make us consider whether the right to free speech of the publishers of registries should be maintained.

And even the right to privacy can become a problem. As noted, addresses and criminal records aren’t private. However, many registries contain a lot of “noise” – people who do not pose any threat (some U.S. states requires registration of people who have visited prostitutes, who have had consensual sex as teenagers etc.). Not only does this label harmless people as “predators”, with often devastating consequences for them. Another result of this noise is that the registries become useless. As a consequence, those who defend the registries ask for more information to be included so that they can judge which “predator” is a real one:

I agree that a man who exposes himself to a woman may not pose the same danger as a convicted child-molester or rapist. All represent a threat, however, so the solution is thus not less information but more detailed information. Give me the facts about the offence and let me decide the level of risk to me and my family. As the parent of two young children I would like to know who my neighbour is going to be before I buy that new home. Adrian Kendall

Taken to its logical extreme, such a view will defend putting everything “bad” about everyone in a super-register. Perhaps registries could be used on a need-to-know basis only.

Economic Human Rights (28): The Health Consequences of the Recession and of Unemployment

The Economist called it the “unsurprising research finding of the day“, but I think it’s a useful confirmation of an existing intuition: this paper finds that the recession can have a beneficial effect on the health of some people who lose their job because of it, namely those people spending their new leisure time in a healthy way. Other people, however, spend their leisure time cultivating some of their pre-existing unhealthy habits, or find themselves depressed and without employer-provided healthcare (especially in the U.S.). Because their healthcare has become more expensive now that they are unemployed, they decide to go without treatment or tests.

Results showed the body mass of the average laid-off food-lover increasing by the equivalent of more than 7 pounds for a 5-foot, 10-inch man weighing 180 pounds during unemployment. Similarly, frequent drinkers on average doubled their daily alcohol intake after losing their jobs and before finding another one. (source)

Elsewhere in the world, and especially sub-Saharan Africa, it seems that the health consequences of the global recession are more dramatic:

The financial crisis will kill between 28,000 and 50,000 babies in sub-Saharan Africa this year, according to this paper. The reasoning here is straightforward. For people on subsistence incomes, a fall in GDP can be fatal. The paper’s authors, Jed Friedman and Norbert Schady, estimate that a one percentage point fall in per GDP across sub-Saharan Africa is associated with a rise in infant (defined as under-ones) mortality of between 0.34 and 0.62 per 1000. If we multiply this increase by the number of births this year and by the 2.4 percentage point difference between GDP growth this year and last (a reasonableish estimate of the effect of the crisis), we get a figure of between 28,000 and 50,000. … Of course, you can quibble with the numbers. But the general story holds. For the poor, income is a matter of life or death. Which brings me to my question. If one-in-seventeen British babies were to die this year because of the financial crisis, it would be the biggest media story for years and there’d be rioting in the streets until the government did something. So, why the silence? Chris Dillow (source)

Limiting Free Speech (31): Speech That Incites, and Teaches the Methods of, Illegal Activity

This is a follow-up from two previous posts on the same subject (here and here).

In Brandenburg v. Ohio, the Supreme Court held that abstract advocacy of lawlessness and violence is protected speech under the First Amendment. Even in a society based on laws, people should be free to express disagreement with the law and call on others to break the law (inflammatory speech).

I think that’s generally acceptable and fair. If someone believes that smoking dope shouldn’t be a crime, and carefully describes to his or her readers how to cultivate and use the drug, then he or she should be permitted to do so. The crime is drug use, not the description of or incitement to use drugs. The same is true for a more extreme example, such as the infamous book called “The Hit Man Manual” (see the Rice v. Paladin Enterprises case). Also, we don’t want to ban chemistry books because someone may use them to build a bomb.

However, it is equally acceptable, also according to Brandenburg v. Ohio, that speech which incites imminent, illegal conduct may itself be made illegal:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio

If speech intends to produce illegal actions, and if, as a result of this speech, the illegal actions are imminent and likely, then there is a reason to limit freedom of speech. In the words of Justice Black (who was, by the way, something of a first amendment absolutist):

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.

When speech acts contribute substantively to criminal acts, the speech acts are considered to be “aiding and abetting”.  The fact that “aiding and abetting” of an illegal act may be carried out through speech is no bar to its illegality. (source)

The justifications for free speech that apply to speakers do not reach communications that are simply means to get a crime successfully committed. K. Greenawalt in “Speech, Crime, and the Uses of Language”

Aiding and abetting a crime can be criminal in itself, even if it takes the form of the spoken or written word. The First Amendment doesn’t provide immunity from prosecution because someone uses speech or the printed word in encouraging and counseling others in the commission of a crime.

Volokh has given the following example:

A Virginia woman has been arrested for blogging about the members of a local drug task force. The charge is harassment of a police officer. She apparently posted on the blog one officer’s home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home….

Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it’s a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn’t difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives….

When may speech be restricted because it provides others with information that may help them commit crimes? Here, the information may help people kill police officers, or at least conceal their crimes from police officers (once the undercover officers’ covers are blown). (source)

However, this doesn’t mean that all inflammatory speech or every publication and distribution of instructions on how to act illegally, can be suppressed and made illegal. The “Brandenbrug test” has to be successful first, which means that there has to be more than mere intent. There has to be incitement of an imminent lawless act, as well as the likelihood that this incitement produces or helps to produce such an act.

Limiting Free Speech (29): Cross Burning

Cross burning is a typically, if not uniquely American type of “speech”. It’s the quintessential expression of hatred of African-Americans. The usual culprits are members of the Ku Klux Klan or KKK (and copycats). Historically, cross burning has been a signal of impending violence and terror. It was often a morbid prelude to lynchings or other acts of racist violence.

Nowadays, cross burnings are relatively rare, and intended to intimidate rather than signal the first step in actual violence. Nevertheless, given the history of cross burning, present-day occurrences understandably continue to instill a real sensation of fear and panic in the intended targets. Which is of course the intention.

The question is: should cross burning be considered as a form of speech that merits the protection of the freedom of speech (the First Amendment in the U.S.), or should it rather be an example of hate speech that can and should be made illegal?

If we focus on the U.S. for the moment, then the leading Supreme Court case is Virginia v Black. This case deals with 2 different criminal cases of people convicted for cross burning. In one case, an argument escalated and two defendants burned a cross in the front yard of their African-American neighbor. The other case involved a cross being burned in the garden of a member of the KKK during a private KKK “party”. The burning cross, however, could be seen by the general public.

Virgina v Black protects cross burning as a form of free speech, but also provides the possibility to make it illegal under certain circumstances (as we’ve seen many times before in this blog series on limiting freedom of speech, the circumstances are always important). And, according to Virgina v Black, the circumstances which would make it possible to restrict freedom of speech in the case of cross burning are not limited to those which can normally restrict freedom of speech in other cases. Speech acts that produce an imminent danger of physical violence, acts that result in reckless endangerment (in this case the risk that the act evolves into an arson attack), or speech acts that lead to trespassing are not protected by the First Amendment. Physical violence, arson and trespassing are illegal, and the fact that they are combined with a speech act doesn’t make them legal. If a speech act is combined with such illegal acts, or is likely to lead to such acts, then the speech acts are not protected by the right to free speech.

According to Virgina v Black, the circumstances which can make cross burning illegal go beyond this and include the intent of the speaker to intimidate and terrorize specific and identifiable persons, even if these persons are not in immediate physical danger. And cross burnings today usually doesn’t result in physical danger.

Now, you could say that cross burning is by definition intended to intimidate, but that’s not the case. Not all cross burnings are intended to intimidate – take the example of the KKK party cited above – and not all cross burnings are equally intimidating. It depends on the circumstances in which the cross burning takes place, and on the fact if it is clearly targeted against certain individuals. If the cross burning takes place close to the homes of African-Americans, and are part of a long chain of intimidation and racist incidents, then they are more intimidating than in other cases. And more intimidating means a higher risk that the rights of the targets will be violated. The African-Americans may feel forced to move, which violates their right to freely choose their residence. They may feel that it is necessary to keep their children away from school, which is a violation of their right to education, etc. In such cases, the right to free speech of the KKK members should obviously be restricted for the benefit of the rights of their targets. But in other cases, they may be allowed to wallow in their silly hobby.

I think Virginia v Black strikes the right balance. For another Supreme Court case on cross burning, see here.

Capital Punishment (15): The Stupidity of Deterrent Statistics

It’s far from obvious that the death penalty has a deterrent effect. Some of the data even suggest the possibility that instead of a deterrent effect, capital punishment has a brutalization effect (because it sends out the normative message that violent retaliation is the normal response to ill-treatment and that the sanctity of life is a naive moral ideal). States with high numbers of executions tend to have high levels of violent crime and murder.

Anyway, let’s be generous and admit that there may or may not be a deterrent effect. According to me, as long as this question is open, deterrence can’t be used as a justification for capital punishment. Of course, proponents of capital punishment keep looking for the effect because it would be the only widely acceptable justification of this type of punishment. (I argued here that even if the deterrent effect exists, it doesn’t justify the death penalty because deterrence is inherently immoral).

One of the most silly “findings” I’ve ever seen is here. This “study” claims to show that every execution results in 18 fewer murders. However, the authors failed to note that, if this were true, and the U.S. would execute today all the approx. 3.300 inmates on death row, there would be no more murders in the U.S. (there are between 15.000 and 20.000 homicides in the U.S. annually). That can’t possibly be true. A nice study, I have to say.

(Pointed out to me by this paper).