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

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

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

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

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

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

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

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

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

More posts in this series are here.

Types of Human Rights Violations (7): Unintentional Human Rights Violations

The common view is that there can’t be unintentional human rights violations: only when someone intentionally harms the rights of someone else can we talk about rights violations. In all other cases we should talk about accidents, tragedies or misfortune. However, I’ve never understood this common view. There is criminal liability for accidentally running someone over with a car, but if we unintentionally reduce someone’s freedom or equal standing should that person simply suffer her misfortune rather than seek redress for violations of her rights? That can’t be true. What’s important about human rights is the harm to the victim, not the state of mind of the perpetrator. Rights are about victims, not perpetrators.

So below are a few examples of unintentional human rights violations (you can suggest more in comments).

Criminal punishment is often a very intentional human rights violation. Think of capital punishment and excessively long or discriminatory incarceration. However, let’s assume that there are cases of justified criminal punishment which merely aim to limit some of the human rights of criminals rather than violate them – the difference is that limitations, contrary to violations, are necessary for the protection of rights of others. (This is not an assumption that is evidently true – see here – but let’s leave our doubts at the door for a while).

Justified criminal punishment must be imposed intentionally. Unintentional side effects of incarceration, for instance, should not therefore be part of legitimate criminal punishment. Examples of such side effects are loss of income, loss of education opportunities, prison rape etc. These, unfortunately, are very common side effects, and incarceration thus unintentionally produces rights violations. That is something which should – but never is – taken into account when imposing prison sentences, especially when, such as in this case, the unintentional human rights violations are eminently foreseeable. (More about this here).

Immigration restrictions are imposed not because decision makers in the destination countries want to condemn large parts of humanity to a life of desperation. They are imposed because people – mistakenly in my view – believe that such restrictions serve to protect a national culture, national prosperity or law and order. However, the fact is that immigration restrictions unintentionally perpetuate poverty, and poverty is a human rights violation. Freedom of association and freedom of movement are also violated by immigration restrictions, and those rights violations are also unintentional.

Poverty in general is usually an unintentional human rights violation. Few people deliberately create or perpetuate poverty, and yet there’s a lot of poverty in the world. While some of it is due to natural causes, misfortune or self-destructive actions, most of it is the result of unintentional actions by other people: certain economic policies (such as anti-poor trade policy), or unintentional failure to act charitably. More about this here.

As you can see from all these examples, the absence of an intention to violate rights is not a sufficient reason to negate the reality of violations. It’s also not sufficient to clear people of responsibility. Even if people do not have the intention to violate rights, they should try to assess whether violations are possible side effects of their actions. And in all the examples given, this assessment is relatively easy. If you think about it, you know that you’ll violate rights unintentionally when you lock up criminals, when you stop people at the border or when you implement certain economic policies. Hence, just like the reckless driver hitting someone with his car, you may be held accountable if your actions in the spheres of justice, border control or trade – or in any other sphere for that matter – cause unintended rights violations.

One day I will offer a complete typology of human rights violations. I think…