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

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

1. Retribution

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

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

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

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

2. Deterrence

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

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

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

3. Incapacitation

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

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

4. Symbolic confirmation of social rules

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

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

5. Signaling

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

6. Healing and pacification

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

7. Rehabilitation

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

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

Conclusion

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

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

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

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

More here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 (42): The Stupidity of Deterrent Statistics, Ctd.

The so-called deterrent effect is one of the main arguments in favor of capital punishment. I’ve argued many times before that the data we have don’t support the existence of this 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).

The following quote nicely summarizes the difficulty of proving the deterrent effect:

I would like to know how a statistical study, no matter how sophisticated, can possibly tell us the subjective motives for acts that were never taken and, moreover, how it can do so with the specificity of telling us approximately how many people did not do what they otherwise would have done under different circumstances. Where are these people? And, more importantly, how would we recognize one if we happened across him or her? (source)

Of course, people who want to disprove the deterrent effect also face this difficulty, but I assume we can agree that the burden of proof is on those who want to use the effect as an argument in favor of capital punishment. And that turns out to be a very heavy burden in this case.

Anyway, even if deterrence could be proven and even if we could establish with some certainty that every execution saves n lives – as some have argued, oblivious of the difficulties pointed out in the quote above – then we would still have good reasons to reject capital punishment.

More here.

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.

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.

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.

What Are Human Rights? (24): Absolute Rights?

One of the great puzzles in human rights theory is the possible existence of absolute rights. It’s commonly accepted that most if not all human rights are “relative” in the sense that they can be limited if their exercise results in harm done to other rights or to the rights of others. Freedom of speech for example doesn’t offer “absolute” protection for all kinds or instances of speech (see here).

If there are any human rights that do offer absolute protection without exception, the right to life, the right not to be tortured and the right not to suffer slavery would be good candidates. Whereas it seems quite reasonable to silence someone when he or she incites violence or hatred, it’s much harder to imagine cases in which it’s reasonable to kill, torture or enslave someone. I’ll focus here on the right to life.

How would you go about justifying the absolute nature of that right? First, you could claim that life is the supreme value. Life is indeed supreme in one sense of the word: it’s lexically prior as they say. It comes first. You can have life without freedom or equality, but not vice versa. (Of course, there are also other more or less promising ways to argue for life’s supremacy in the universe of moral values. I won’t go there now, and neither will I point to the fact that people often sacrifice their lives for a higher purpose. Let’s just assume for the sake of argument that the lexical priority of life suffices, in general, to ground life’s supremacy in the system of values).

If life is the supreme value, that means that no life can be sacrificed for an inferior value. You can’t go about killing poor or handicapped people for the sake of aggregate wellbeing. And neither can you execute criminals in an effort to deter future attacks on people’s security rights.

So life is then the supreme value in the sense that it can’t simply be traded against another inferior value. That already makes a lot of potential limitations of the right to life unacceptable, and the right to life therefore moves a significant distance towards absoluteness. However, if life is the supreme value, it’s still theoretically possible to trade the lives of a few for the lives of many others. So not life as such, as an aggregate or abstract concept needs to be the supreme value, but individual life. If individual life is the supreme value, the lives of some can’t be put on a scale to see if their sacrifice could protect a higher number of other lives. Robert Nozick gives the following example to make this point salient:

A mob rampaging through a part of town killing and burning will violate the rights of those living there. Therefore, someone might try to justify his punishing [i.e. killing] another he knows to be innocent of a crime that enraged a mob, on the grounds that punishing this innocent person would help to avoid even greater violations of rights by others, and so would lead to a minimum weighted score for rights violations in the society. Robert Nozick

So, if you accept the argument made so far, does this mean that you have established the absolute nature of the right to life and that this right therefore can never be limited? It would seem so. If life is the supreme value, it’s hard to find a reason to limit it, since this reason would then have to be a superior value. And if individual life is the supreme value, you can’t play a numbers game to conclude that the sacrifice of some is necessary in order to save a higher number of other lives.

However, categorical claims like this always seem to me to make things too easy. Something else is necessary. Take four cases in which lives are commonly sacrificed without universal or often even widespread condemnation:

  • individual self-defense
  • war as national self-defense
  • capital punishment and
  • the murder of a terrorist (and perhaps his hostages) about to kill many others (e.g. the shooting down of a commercial plane hijacked by terrorists and about to be used as a weapon).

In all these cases, the lives of some are sacrificed for the lives of others (assuming that capital punishment has a deterrent effect, which is probably not the case). If the right to life is really absolute, none of these actions would be morally or legally acceptable. In order to make them acceptable, there has to be something more than a mere quantitative benefit in terms of numbers of lives saved. I believe the sacrifice of life is acceptable if in doing so one doesn’t violate these three rules:

  • we should only sacrifice life in order to save life, and not in order to promote other values, and
  • we shouldn’t treat other people as means, and
  • we shouldn’t diminish the value of life.

In the case of one of the four actions cited above, namely capital punishment, we do treat other people as means and we diminish the value of life. Murderers are used as instruments to frighten future murderers. Capital punishment is supposedly intended to further respect for life, but in fact normalizes murder. (See here for a more detailed treatment of this issue). In the three other cases, we don’t necessarily use people as means or diminish the value of life. Hence these case can be acceptable limitations of the right to life.

So the right to life is only quasi-absolute: limitations are possible but extremely rare because a number of very demanding conditions have to be met:

  • you can’t kill for the promotion of values different from life
  • you can’t generally count lives and kill people if thereby you can save more lives
  • and if you do want to kill in order to save lives, you have to do it in a manner that doesn’t instrumentalize human beings or diminishes the value of life.

The Ethics of Human Rights (43): Human Rights and Utilitarianism

You often hear the claim that human rights and utilitarianism don’t mix. And indeed, at first sight they are rival and incompatible moral theories that have radically different prescriptions about what we should do in order to do good.

Utilitarianism tells us to do what maximizes “utility” (in whichever way “utility” is understood: pleasure, happiness, wellbeing etc.). We should, in other words, try to act in such a way that our actions produce as many good consequences as possible, and that the aggregate of those good consequences outweighs – in terms of “utility” – the aggregate result of whatever different combinations of actions are possible. We should try to maximize utility regardless of whether rights are respected or violated while doing so. The good is prior to and independent of the right or duty. Something is a right or a duty only when it contributes to overall utility, and only when it does so to a higher extent than violating that right or duty.

Conversely, human rights tell us that we can never do certain things, not even if doing those things would maximize overall social utility (happiness, pleasure etc.). Some human rights theories provide exceptions to this rule and don’t use the qualifier “never”. For example, in a situation of extreme danger for the whole of society, these rights theories provide the possibility that some rights are temporarily suspended. However, they typically provide a very high threshold, otherwise it would become difficult to speak about “rights” and the theory would collapse into utilitarianism (if rights can be suspended regularly, they are no longer rights).

For example, even if it were the case that capital punishment has an important deterrent effect, it would not be permissible. Executing people for crimes as a means to diminish the occurrence of future crimes is just not something one can do to people. It instrumentalizes people in an unacceptable way according to most rights theories. The right to life is just too important and a deterrent effect doesn’t lift us above a threshold of suspension of rights.

People have rights, even if the outcome of those rights is suboptimal and more overall utility could be achieved when some rights are violated in some cases. Only when the utility of violating rights is very high do some rights theories allow those violations. These rights theories are threshold theories that allow utilitarian or consequentialist considerations to “kick in” when a certain threshold is reached. For example, they allow torture if a very large number of lives is at stake, even though generally and under non-marginal conditions people have a strong right not to be tortured.

That already shows that human rights and utilitarianism-consequentialism aren’t necessarily incompatible. Of course, some rights theories claim that they are. Those are the non-threshold theories, which are more extreme rights or duty theories that allow no exceptions. An example is Kant’s infamous argument about not lying to a murderer inquiring about the whereabouts of his intended victim – “fiat justitia et pereat mundus“.

Compared to utilitarianism, human rights theories – both strong and threshold theories – have the advantage that they are able to protect strong interests of minorities and individuals against the weight of aggregated and possibly weak interests of large majorities. It’s intuitively appealing to have a theory that protects individual rights against aggregate social utility. Utilitarianism – in its crudest forms – has often been accused of not taking the differences between people seriously and of not caring about individual suffering as long as the total advances.

We don’t even have to look at extreme threshold cases to see that many human rights theories have consequentialist or utilitarian features. Obviously, there is no human rights theory that holds rights hostage to case-by-case utility accounting or that claims that all human rights have optimal consequences all of the time. And yet, most human rights theories claim that human rights are necessary because they generally produce good consequences and promote certain important values. Maybe not happiness, but peace, prosperity etc. (See here). For example, there’s a strong argument that free expression promotes knowledge and that religious liberty promotes communal peace.

Claiming that respecting human rights is generally optimal from a utilitarian perspective doesn’t mean that it’s always optimal. You could argue that even if it’s not always optimal to respect human rights we still should do so, because we’re unable to distinguish between cases in which it is or is not optimal to respect human rights (perhaps because our predictive powers aren’t good enough to judge the suboptimal consequences of rights), or because violating rights once will diminish their authority and will ultimately destroy them, making it impossible to reap the generally positive benefits of rights.

More posts in this series are here.

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.

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

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

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

Guns and violence

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

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

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

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

Deterrence

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

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

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

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

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

Self-defense

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

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

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

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

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

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

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

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

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

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

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

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

Gun control

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

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

The Ethics of Human Rights (33): Different Types of Justice and the Link to Equality

What I want to do here is list some of the types of justice that are commonly identified, and see how they are connected to the concept of equality in order to find out if the traditional link between justice and equality holds up to scrutiny. So let’s first have a look at some possible meanings of the word “justice”.

1. Distributive justice

Distributive justice (often called social justice) is about the allocation of resources and burdens. Justice may require that this allocation is done in accordance with certain rights (e.g. an equal right to a basic standard of living), merit or other criteria. This type of justice is about the fairness of what people get (e.g. basic goods, recognition, rewards etc.).

2. Contributive justice

Contributive justice is the opposite: it’s about what people are expected or able, not to get, but to contribute to society. It’s mainly about work: should people be required to be productive members of society, and if they are, should they have a right to organize their contribution in a fair and just way (for example, is it fair or just that some people are bound to menial tasks while others have much more interesting work?).

3. Criminal justice

Criminal justice is about rectification of interpersonal harm, about the restoration (when possible) of an initial position disturbed by harmful behavior, about retribution and punishment, and about restitutions or reparations of previous harm. Criminal justice is therefore often called corrective justice, rectificatory justice or punitive justice. And sometimes these words are supposed to refer to entirely different (sub)types of justice because there can indeed be substantial differences: criminal punishment may be intended to correct or rectify a wrong (e.g. theft), but it can also be used as plain retribution or even vengeance when the wrong is such that it can’t be corrected (e.g. murder).

Some argue that criminal justice is a type of distributive justice. One interpretation of distributive justice sees it as the distribution or allocation of rewards and punishments according to merit or desert. Punishment for a crime is then distributive justice. But that seems to be stretching the meaning of the word “distribution”. A judge in some case does not distribute anything from the offender to the victim and the victim recovers nothing (e.g. in the case of murder). Those are precisely the cases in which criminal justice is not corrective. I think it’s preferable to keep these concepts separated.

Criminal justice includes the work of the Courts, but also less formal corrective or reparative models, such as truth commissions, apologies etc. Transitional justice, some forms of transgenerational justice, mob justice or vigilante justice also fall under this header.

4. Procedural justice

Procedural justice, unlike the previous types, isn’t about certain just or fair outcomes (just distributions, contributions or punishments), but about fair procedures. The focus is on the processes of arriving at a certain decision (judicial, political etc.). The rules governing the fairness of trials are an example of procedural justice, as are the rules governing legislation in a democracy. People will differ over the fairness or correctness of the legal or political decisions, but they can agree on the fairness of the process. In many cases, defendants in criminal trials or losers in democratic elections may be disappointed in the outcomes but accept them nonetheless because they see that there was fairness in the process; for example, they were allowed to make their case in public with equal resources, there was an impartial judge who weighed the different arguments and so on.

5. Other types

Other types of justice include divine justice (usually a mix of distributive justice for the poor and criminal justice for the sinful), poetic justice (the fateful infliction of harm upon the harm-doer), instrumental justice (doing justice in order to achieve something else, e.g. deterrence) etc.

The link to equality

How are these different types of justice linked to equality?

Distributive justice is often seen as the most egalitarian type of justice, because most interpretations of distributive justice see it as a kind of equalizer of basic goods. Everyone needs a fair share of basic goods, and that means an equal share. Poverty reduction is typically seen as an exercise in distributive justice. However, distributive justice doesn’t need to be egalitarian. Aristotle for example claimed that justice wasn’t merely equality for the equal but also inequality for the unequal: we usually sense that there is an injustice when a teacher gives the same grades to everyone, the meritorious as well as the lazy. However, you could say that even this merit-based type of distributive justice implies equality, namely equality between reward and merit.

Contributive justice as well focuses on an equal contribution in life’s pleasant and unpleasant tasks. Regarding criminal justice the picture is more blurred. Originally, criminal justice focused heavily on equality. The biblical lex talionis – an eye for an eye – was an explicitly – and horrendously – egalitarian form of punishment. The wrongdoer should suffer the same injury as his victim. That’s not fashionable anymore, but still we see that criminal justice strives towards some degree of equality or at least proportionality or correlation between the type of harm inflicted and the nature or weight of the punishment. It’s unfair to impose a life sentence for the crime of not paying your debts, or a fine for murder. Strict equality is, of course, often impossible: you can’t execute Hitler 6 million times. But sometimes it’s possible – i.e. in the case of theft or property damages – and we can demand full correction or rectification from the criminal. Most of the time, some kind of proportionality is more appropriate, not only because we want to avoid cruel punishments but also because we don’t have any other choice.

Procedural justice as well relies heavily on equality: an equal right to call witnesses, equal weight given to testimony, equal duration of arguments, equal access to courts and media etc. Even poetic justice is a form of equality because the wrongdoer suffers the same harm as he inflicted on or intended for someone else. In the story of Esther, for example, Haman is executed on the gallows he prepared for someone else. Something similar can be seen in all examples of poetic justice.

So, whereas justice is not the same as equality, the links between these two concepts are quite strong.

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.

Capital Punishment (25): Non-Contingent Reasons to Abolish Capital Punishment

Many people would agree that there are what we could call contingent reasons to abolish capital punishment:

  • it’s practiced in such a way that it doesn’t meet basic standards of fairness and non-cruelty:
    • for instance the racial discrepancies in the system in the U.S.
    • the irreversibility in cases of miscarriages of justice
    • and the methods used in Saudi Arabia)
  • and it also doesn’t do what proponents say it’s supposed to do:
    • it fails to deter crime when compared to life imprisonment without possibility of parole – see here and here
    • and it fails to be retributive because in many cases it could be argued that murderers for instance deserve a fate much worse than death – capital punishment is often much less than an eye for an eye; however, few proponents of capital punishment are willing to take that road.

However, is there an argument for abolition that does not depend on contingent facts? Or, in other words, even if the punishment would be administered in a totally fair, correct and non-cruel way, and even if every execution would deter n murders, would we still have reasons to abolish it? To put it in yet another way: is there something inherent in capital punishment, in the very nature of it, that justifies its abolition?

I think there is. Before I tell you, however, I just want to say that it is in a sense futile because the contingent reasons for abolition are so strong that they are enough. I don’t think we can ever find a way to apply capital punishment without discrimination, without the risk of killing innocent people, and without any cruelty (even painless executions involve psychological cruelty, often for years on end). Hence it isn’t really necessary to make the case that even in perfect circumstances – which will never pertain – capital punishment isn’t justifiable.

But I’ll make the case anyway, because it reveals something that is philosophically interesting, even if it’s not practically useful. Imagine the perfect but in my view improbably if not impossible circumstances in which capital punishment is used as a fair, non-cruel and correct way of punishing certain criminals (correct in the sense of avoiding miscarriages of justice) and thereby deterring further crime. The intention of being retributive is almost impossible, even in ideal circumstances, as I have argued above, unless we give up traditional notions of cruelty which few proponents of capital punishment are willing to give up, so we can leave that aside.

So the focus is on deterrence. What does it mean to deter? It means that criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences. One of the most important lessons we have learned from Immanuel Kant and others is that we should never use fellow human beings as means to an end. An offender, even the worst possible offender, has a certain value as a human being, a certain dignity if you want, which should be respected and which cannot be canceled in the process of punishment. An offender shouldn’t be a mere tool to send warnings and intimidations to possible future offenders.

Now, you could say: how is this different from life imprisonment without parole? Isn’t that also meant to deter and hence open to the same criticism? No, it isn’t. Life imprisonment is intended to stop the criminal from doing further crime, and hence the criminal isn’t used to deter others. Furthermore, life imprisonment is intended to give the criminal the opportunity to make amends.

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.

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)

Capital Punishment (18): The Stupidity of Deterrent Statistics, Ctd.

Some more data on the supposed deterrent effect of capital punishment:

In 2003, there were [in the U.S.] 16,503 homicides (including nonnegligent manslaughter), but only 144 inmates were sentenced to death. Moreover, of the 3374 inmates on death row at the beginning of the year, only 65 were executed. Thus, not only did very few homicides lead to a death sentence, but the prospect of execution did not greatly affect the life expectancy of death row inmates. Indeed, Katz, Levitt, and Shustorovich have made this point quite directly, arguing that “the execution rate on death row is only twice the death rate from accidents and violence among all American men” and that the death rate on death row is plausibly lower than the death rate of violent criminals not on death row. As such they conclude that “it is hard to believe that in modern America the fear of execution would be a driving force in a rational criminal’s calculus.” John J. Donohue III and Justin Wolfers (source)

Proponents of capital punishment may answer this in two ways:

1. It proves their point: if all these data are correct, we need more capital punishment, and then the deterrent effect will kick in. Capital punishment as it is used now may indeed not deter significantly, but that’s no reason to abolish it; it’s a reason to step up the production of corpses.

But this reasoning leads to a reductio ad absurdum: if deterring crime is so important, and if we should do more to deter crime, then why don’t we change the execution methods: burn criminals alive at the stake. That should deter. But this, of course, brings home the point that we simply can’t do what we want to people in order to achieve some beneficial aggregate social good. If proponents of the death penalty shy away from this ultimate implication of the deterrent argument – and I think most of them will – then there’s no reason why opponents cannot have good reasons to reject killing criminals in other, less cruel ways. If propopents concede the point that there are certain things we can’t do to people, regardless of who they are or what they’ve done, then opponents can make the case that these “certain things” do not only include burning people alive but also killing them in a way which is less cruel but which nevertheless implies instrumentalizing people for the benefit of others with whom they have no relationship and who may not have been born yet. This instrumentalization is perhaps not physically cruel, but it is dehumanizing. People are no longer viewed as humans but as tools for the maximization of social wellbeing.

2. The calculating criminal is a myth. Murderers don’t look at death row statistics or other statistics mentioned in the quote above in order to decide whether or not to actually kill someone. They are deterred, not by numbers, but by the general vivid image of the horror of capital punishment. That may be true in the case of some types of murderers (e.g. the uneducated ones, or those motivated by passion), but not in the case of other types (some people may indeed look at the data and calculate that the risk of being killed for their crimes is so low that it’s ok to go ahead*).

But even if it is true and people don’t calculate, the “burning at the stake” implication still holds. If it’s the vivid nature of the punishment that counts as a deterrent, not the statistical likelihood of actually receiving this punishment (which is very low as a matter of fact), then let’s make it as “vivid” as possible and bring back the Middle Ages.

* I’m thinking of professional criminals for example.

Capital Punishment (16): The Lesser Evil Argument for Capital Punishment

Let’s assume, arguendo, that capital punishment has a deterrent effect. (I stated here that this is far from obvious). It’s important for proponents of capital punishment that this effect exists, because other justifications for capital punishment are no longer widely accepted (e.g. justifications like, for example, those based on the conviction that murderers somehow deserve to be killed).

My point here is that, even if we assume that deterrence works and reduces the overall number of killings (and we shouldn’t assume this), it doesn’t justify capital punishment. I will argue this on the basis of one of my previous posts and on elements of this paper.

The expression “deterrence works” means that there are fewer overall killings in a society with capital punishment than there would have been without capital punishment. In other words, capital punishment deters more killings than it inflicts. The taking of a life by the state reduces the number of lives taken overall. This is what is called a “lesser evil argument”. Proponents of this kind of justification of capital punishment do not believe that executions are a good thing, or a moral thing to do. Executions take people’s lives, and are evil, but they are a lesser evil than not engaging in executions, because failing to execute would mean failing to deter more murders than the murders we commit by executing killers. If an execution saves more than one life (and there are studies claiming that every execution saves around 18 lives), than it is morally required. It may be immoral and evil, but less so than the failure to execute because it leads to a net gain in terms of numbers of lives saved compared to the failure to execute.

This lesser evil argument is what is called a consequentialist moral argument. Consequentialism is opposed to deontology. The latter states that some acts are intrinsically wrong and can’t be justified by the value of their beneficial consequences. Consequentialism, as the name suggests, claims that beneficial ends justify the means. Of course, neither position is ever defended as an absolute. No one, I guess, believes that a more beneficial overall outcome always justifies certain acts. I think it’s hard to find someone who accepts that it’s moral to kill someone if his or her organs can save the lives of two others. Saving two lives at the cost of one is an overall gain, but it seems that sacrificing someone in this manner just isn’t something you can do to a person. On the other hand, absolute deontologists are also a rare species. At some point, negative consequences have to be taken into account and to hell with the principle then.

The deterrence effect is said to justify capital punishment because of consequentialism: the overall result or consequences of capital punishment are better than the alternative, namely failing to inflict capital punishment. Whereas a deontologist would reject capital punishment regardless of the beneficial consequences, a consequentionalist will not. He will admit that executions are no better than private murders, and just as evil, but still acceptable and even morally necessary if it can be shown that they deter more murders than they inflict.

The problem with this argument isn’t so much that it’s based on dubious deterrence statistics, but that it supposes that state murder is the same as private murder, and that a lesser number of the former is acceptable and necessary if they make it possible to deter a higher number of the latter. Of course, state murder is worse than private murder, and, as a result, the consequentialist calculus of the lesser evil argument is corrupted. If a state murder is worse than a private murder, it’s no longer obvious that capital punishment is a lesser evil.

Why is state murder worse than private murder? As I stated in a previous post, capital punishment is the instrumentalization and dehumanization of people. Private murder of course also instrumentalizes and dehumanizes the victims because these victims are used for some kind of gain, but state murder pushes this instrumentalization to the extreme and makes it the norm of behavior, rather than a criminal exception. Individual criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). And this is even made worse if we consider that the lesser evil argument seems to justify the execution of innocent people, as long as this deters a higher number of private murders.

When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences.

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).

Capital Punishment (12): Crime Prevention Through Fear

Capital punishment is just one of many types of punishment for criminal activity. The main purpose or function of all criminal punishment is prevention (some other functions are social recognition of a criminal act,  social condemnation, recognition of the victim, support for the victim, establishing the facts etc.).

Prevention through punishment

Prevention through punishment is the attempt to use punishment of a particular crime in order to prevent future crimes of the same type. Punishment therefore increases social welfare. It is believed that punishment can prevent future crimes in three ways:

  • incapacitation: by punishing a criminal, here or she is incapacitated (physically restrained or killed) and hence cannot commit any more crimes (this type of prevention is limited to a particular person being prevented from committing more crimes)
  • fear and deterrence: the example of a punishment will deter other people from committing a similar crime; another word for fear – terror – can be found in the word deterrence (this type of prevention, as the next one, covers potentially the whole of society)
  • education: by punishing a criminal, society receives a messages from an authoritative source that certain types of behavior are immoral (punishment is kind of an official reaffirmation of morality); the public spectacle of punishment therefore infuses society with morality and it is hoped that people will internalize this morality and act accordingly, so that future crimes and punishments become less ubiquitous.

Of these three ways in which punishment is believed to be able to prevent crime, only the second one figures prominently in discussions on capital punishment. Its success in deterring crime is, by many, believed to be the main justification of capital punishment (although the statistics aren’t clear about that). Obviously, incapacitation cannot justify capital punishment since life imprisonment incapacitates equally well. In this post, I will argue that there are practical and moral objections to the use of punishment as a deterrent (irrespective of the discussions on the possible success of this strategy), and that the same objections hold with respect to punishment as education. However, this doesn’t mean that I argue against punishment as such.

Deterrence

Deterrence is inherent in all types of criminal punishment, not just capital punishment. Punishment is intended to instill fear in other potential criminals. People are aware of the punishment for certain crimes, because the trial system is open and public, and this awareness leads them to make cost-benefit analyses. The threat of punishment for a crime creates a cost, a disincentive, that should outweigh the possible benefits of committing this crime. Proponents of capital punishment believe that only this type of punishment imposes a high enough cost to deter certain crimes.

There are several problems with this statement:

1. Rationality

Believers in deterrence assume that all or most criminals undertake a rational calculation of costs and benefits before committing their crime. That’s obviously not true. There are the crimes of passion, for example, which do not follow from such a calculation. And many types of criminals aren’t rational at all, or aren’t able to make the necessary evaluation of cost and benefit. Hence, many criminals are undeterrable. (Think for example also of the extreme case of the suicide terrorist). One should be careful taking a life when there may be no benefit in doing so.

2. Under-enforcement

It’s well known that many if not all laws suffer from under-enforcement. The chances of being arrested and convicted for any particular crime are less than 100%, and often much less. Criminals who do engage in rational analysis of costs and benefits, and who are therefore potentially deterrable, will take under-enforcement into account, and this will sharply reduce the effect on them of another person or even persons being punished. If a potential offender perceives the likelihood of punishment to be very low, then the deterrent effect of the severity or even cruelty of previous punishments for similar crimes is nullified.

3. Blindness to the causes of crime

Capital punishment, or any other form of punishment which focuses on deterrence as a means to prevent future crime, overlooks other, perhaps more fruitful ways of preventing crime. Addressing the underlying causes of crime, or people’s motivations to engage in crime, and working on the social conditions which foster criminality, may be more successful as a prevention strategy than merely relying on punishment, fear and unlikely cost-benefit considerations.

4. The immorality of deterrence

However, the strongest objection against deterrence, especially when it takes the form of capital punishment, it its immorality. One of the most important lessons we have learned from Immanuel Kant and others is that we should never use fellow human beings as means to an end. An offender, even the worst possible offender, has a certain value as a human being, a certain dignity if you want, which should be respected and which cannot be canceled in the process of punishment. An offender shouldn’t be a mere tool to send warnings and intimidations to possible future offenders.

Education

Punishment is said to achieve prevention of future crime because it is educational. It educates society about the wrongfulness or immorality of certain actions by doing certain things to offenders. And it thereby reinforces internalized morality and encourages law-abiding behavior. And, say the proponents of capital punishment, the message sent to society is stronger if the punishment is more severe. Punishment therefore not only applies and enforces rules and norms, but also creates them because it internalizes them, or better helps people to internalize them. However, objection number 4 which I leveled against deterrence is also applicable here. Education as a function of punishment also doesn’t take persons seriously, in the words of Rawls. It instrumentalizes offenders and uses them to send messages to society. And reducing people to a means is a kind of dehumanization.

And what about the victims?

It could be argued that all this puts too much importance on the offenders, and ignores the victims and their relatives and friends. On the contrary, I think. I take the preventive function of punishment very seriously (while at the same time pointing out other functions which also benefit victims or potential victims, see above). I just wanted to point out that deterrence isn’t necessarily very effective as a prevention tool (something which can explain the statistics cited above). We should therefore be careful when imposing harsh punishments on people while assuming that the harsher these punishments are, the more crime we can prevent. People just don’t do cost benefit analysis quite as often as we assume.

And I also wanted to point out some other problems with deterrence, problems not of a practical but of a moral nature. When we allow the justice system to instrumentalize people for the sake of deterrence, but also for the sake of education, we mirror the practices of many criminals, and therefore justify these practices. Criminals typically use other people as means, and violate a fundamental moral rule. When we allow the justice system to violate the same rule, and instrumentalize offenders, we legitimize this instrumentalization, and hence we will encourage criminal behavior rather than prevent it.