The Causes of Human Rights Violations (36): Anchoring Effect

The anchoring effect is a psychological bias that leads us to rely too heavily on one piece of information – often even information that is totally irrelevant – when making decisions. Once the anchor is set, there is a bias toward adjusting or interpreting other information to reflect the “anchored” information. I can best explain this with an example. It’s well known that judges do not simply apply legal rules to the facts of a case in a purely rational or mechanical manner. In fact, the decisions of judges are influenced by political, social and psychological biases, one of those being the anchoring effect.

German judges with an average of more than fifteen years of experience on the bench first read a description of a woman who had been caught shoplifting, then rolled a pair of dice that were loaded so every roll resulted in either a 3 or a 9.  As soon as the dice came to a stop, the judges were asked whether they would sentence the woman to a term in prison greater or lesser, in months, than the number showing on the dice.  Finally, the judges were instructed to specify the exact prison sentence they would give to the shoplifter.  On average, those who had rolled a 9 said they would sentence her to 8 months; those who rolled a 3 said they would sentence here to 5 months; the anchoring effect was 50%. (source)

What does this have to do with human rights or with the causes of human rights violations? Well, if you replace the loaded dice in the quote above with the sentencing demands of prosecutors or even the demands of the “public”, you will not be surprised to find unfairness in sentencing:

The results of a recent study of ours (Englich & Mussweiler, 2001) indicate that accomplished trial judges with an average of more than 15 years of experience were influenced by sentencing demands, even if the demands were made by non-experts. In fact, the magnitude of this influence proved to be dramatic. Judges who considered a high demand of 34 months gave final sentences that were almost 8 months longer than judges who considered a low demand of 12 months. A difference of 8 months in prison for the identical crime. Notably, this influence occurred although both demands were explicitly made by a non-expert. (source)

Sentencing demands can be an effective “anchor” leading to violations of those human rights that require fairness in criminal trials. Skilled but ruthless prosecutors can use this in order to influence even experienced judges and to have them impose unfair sentences.

Obviously, the anchoring effect isn’t limited to criminal trials, and it’s not just the anchoring effect that can introduce a bias in judges’ rulings. I’m not sure if I already mentioned this incredible finding:

The percentage of judges’ rulings that are favorable to the accused drops gradually from about 65% to nearly zero within each decision session and returns abruptly to 65% after a break. This indicates that judges are swayed by things that shouldn’t have any bearing on their decisions.

I’m still looking for other examples of rights violations caused by the anchoring effect, but in the mean time I should mention that it must also be possible to use the effect to improve respect for human rights.

Something about the related topic of unconscious priming is here. More posts in this series about the causes of rights violations are 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.

What Are Human Rights? (22): Part of the Rule of Law

The claim here is not the trivial one that human rights depend on the rule of law because they can’t be enforced without it. The more interesting question is the opposite one: whether there can be a rule of law without human rights. Or, in other words, is the rule of law a necessary but not a sufficient condition for human rights?

At first sight, the answer to both questions would be “yes”. Indeed, the law can be anything, and as long as it “rules” in some way – i.e. as long as the laws are consistently enforced and not superseded by frivolous and arbitrary commands of men – one could claim that there is some sort of “rule of law”, even if the laws in question violate human rights. Civilizations had the rule of law long before the concept of human rights even existed (the Roman Empire may be an example).

Joseph Raz has famously claimed that

the law may, for example, institute slavery without violating the rule of law. (source)

Nazi Germany was also very much a law based society. (See here for example). Indeed, it can be plausibly claimed that strong and authoritarian states are better able to impose rules. That would lead to an incompatibility between human rights and the rule of law.

The fact that many if not most dictatorships make a mockery of the rule of law and of the law itself, and govern in a totally arbitrary way based on the whims of a few men rather than laws and rules, doesn’t exclude the possibility that some dictatorships respect the rule of law, and that the rule of law can indeed be the rule of very bad law, viewed from the perspective of human rights. A prima facie conclusion has to be that dictatorships can respect the rule of law and that regimes based on human rights can inhibit the rule of law: privacy protection, rules on the determination of criminal guilt etc. can make the rule of law more difficult. Authoritarian regimes can easily lift the veil of privacy in order to check for violations of the law, and are not at risk of freeing guilty people because of the presumption of innocence and the burden of proof.

The rule of law, viewed in this manner, is a purely formal concept devoid of substance: as long as the laws “rule”, we have a rule of law, no matter what the substance of those laws may be. Laws are then viewed solely as rules that guide conduct, but the direction in which they guide is immaterial. The rule of law, according to this view, should not be confused with the rule of the right law. The rule of law as a concept deals not with the content of the laws but with the way in which they are enforced and formulated.

That last word is important: the rule of law should logically be more than a system of governance in which rules are imposed by force. Imposing rules by way of force can in itself not be viewed as a system of the rule of law. It would be far-fetched to claim, for example, that a government using force to impose completely arbitrary rules that change every day respects the rule of law. The rules in question have to be formulated in a certain way; there have to be rules of legislation in order to have a rule of law.

These rules usually include the following:

  • Laws should not be imposed retroactively: the rule of law implies respect for the laws, and citizens can’t be expected to respect laws if they are imposed retroactively.
  • Laws should be made public, for the same reason.
  • Laws should be relatively permanent, clear and intelligible, again for the same reason.
  • Laws should strive to be general rules applicable to everyone, rather than commands directed at certain persons or groups; the reason for this rule of legislation is the differentiation between rule of law and rule of man.
  • Laws should not contradict each other, again for reasons of respect.

These rules of legislation differentiate laws and the rule of law from an arbitrary set of rules imposed by force. The rules of legislation are formal and don’t, at first, impose content on the specific laws generated by these rules. However, once you take a closer look at these rules of legislation, it becomes increasingly difficult to maintain that the rule of law is a contentless concept that allows the law to be virtually anything, even abject oppression. Some of the values inherent in the rules of legislation are also inherent in human rights: publicity and equality for example.

The rules of legislation also create another link to human rights: they assume free will. If rules can’t be secret or can’t be applied retroactively it’s because we want to give people the choice to change their behavior so that it complies with the law. Secret and retroactive laws are impossible according to the rules of legislation, and hence also according to the rule of law, because they are an affront to freedom. (See the work of Lon L. Fuller for a more detailed version of this argument).

Hence, freedom is an important part of the rule of law, just like publicity and equality. So it would be strange to claim that a regime respects the rule of law if its laws violate people’s freedom, equality and public activity (such as speech). That would have to be a diminished kind of rule of law. Maybe the regime in question does respect the rules of legislation and does more than impose any arbitrary set of rules by way of force. But if it does so, it sets in motion a dynamic that will ultimately lead to freedom, equality and publicity because it uses these values in its legislation (although not in its laws). Violations of human rights are initially consistent with the rule of law – correctly understood as more than any arbitrary set of rules imposed by force – but not over time, since the dynamic of the rules of legislation uses values that are likely to infuse the laws themselves rather than merely the rules of legislation. And these values will direct the laws towards human rights since they are the same as the values inherent in human rights.

For example, if you have a law that imposes slavery, this law may initially have been created with respect for the rules of legislation (for instance, it may be a public law that doesn’t criminalize behavior that took place before the publication of the law). But since these rules imply the equality and freedom of all citizens, the law in question will ultimately come to be seen as inconsistent with the system of legislation. Over time, the rule of law will become the rule of the right law.

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.

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

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

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

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

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

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

Terrorism and Human Rights (7b): Arbitrary Arrest and Guantanamo

All democracies arrest people without a charge or conviction, but they only do so for very short periods of time, usually a very limited number of days. Also, when a charge is filed, democracies want to have a court case as soon as possible. Detention on remand, as it is called, is confinement in a house of detention prior to treatment of a case in court. Generally, this type of detention is imposed, if a person is suspected of a serious crime and if he/she is prone to escape, to tamper with the evidence, to commit further crimes etc. Democracies also want to keep this detention on remand as short as possible, because there is always the risk that an innocent person is imprisoned.

In a well-functioning judicial system, there can be no excessively long detention without a charge or detention on remand. We do not want to incarcerate innocent people. Without a time limit – usually expressed in number of days – detention without charge or detention on remand would be arbitrary arrest. And arbitrary arrest is typical of tyranny. An arbitrary arrest is an arrest of a person without evidence of this person’s involvement in a crime. If there is such evidence, then there can be no problem presenting this evidence within a very short delay, after which the person can be formally charged and a court case can be decide on guilt or innocence, also within relatively short delays. A long delay between an arrest and a formal charge or between an arrest and a court decision on guilt or innocence, would create an injustice if it turns out that the person in question is innocent. The harm done by this possible injustice can be limited is the time frames are short. All this is part of treating people fairly and doing justice.

Article 9 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary arrest, detention or exile”. This is linked to habeas corpus.

Unfortunately, the U.S., still a beacon of democracy and the rule of law, has decided that its war on terror forces it to imitate dictatorships and to detain people, in Guantanamo and other places, without a warrant, without a charge, without a fair trial and conviction, and for indefinite periods. Let’s hope the new administration will close these prisons soon and, if there is evidence, formally charge the inmates.

The government in the U.K., not having an equivalent of Guantanamo, has simply decided to change the period and extend the number of days it can detain people without charge.

Crime and Human Rights (1): Poverty and Crime

Poverty is the mother of crime. Marcus Aurelius Antoninus

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

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

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

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

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

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

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

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

The Causes of Human Rights Violations (5): Lack of a Fair Trial

A characteristic element of modern democratic states is their ability to offer fair trials to those accused of crimes. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:

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

One important condition for a fair trial is publicity. Justice must not only be done, it must also be seen to be done, not only to deter other criminals and to give consolation to victims, but also because publicity makes it more likely that the real perpetrator is punished. Every trial is therefore a show trial. The publicity of a trial makes it possible to judge the judge and hence to correct mistakes if necessary.

The secret trial is typical of authoritarian regimes because it allows for abuses of power. It makes it easier to use the justice system for other purposes than the identification and punishment of proven criminals. It is very hard to use a public trial for power games or oppression.

On top of that, false accusations or false testimonies are more likely to remain undiscovered in a secret trial. After all, it is not only the state that can gain from a secret trial. Interested third parties can also benefit from an unfair trial.

However, publicity alone does not guarantee that trials and verdicts are fair and just (which is clear from the phenomenon of communist show trials). The following elements are just as important (as with publicity, most of them are included in the main human rights instruments, for example articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights):

  • No punishment or imprisonment without an indictment and without swift information on the nature of the indictment. If the purpose of the justice system is to punish criminals, it’s very easy to tell the suspect who we want to imprison before his or her trial about the crime he or she is suspected of having committed. After all, the crime has been committed and the accusers surely must know the nature of this crime. It must be awful to be imprisoned without knowing why. The absence of indictments indicates that the authorities merely wish to use the justice system to terrorize the population, not to punish crime.
  • No excessively long detention on remand (detention without a lawful and fair trial and conviction). We do not want to incarcerate innocent people.
  • The possibility of an appeal to a higher court. Mistakes can be made.
  • A competent and impartial judge; fairness, according to the dictionary, means impartiality. A partial judge is an absurdity. Such a judge would be completely useless, and people would be better off fighting their cases amongst themselves, one against one instead of one against two.
  • The possibility to defend yourself and to receive free legal assistance. The possibility to argue and to give counter-arguments, to call witnesses for the defense and to question witnesses for the prosecution. This requires time, hence this must be balanced with the point mentioned earlier about the excessively long detention without a trial. Swift justice can be as unjust as detention without a trial.
  • Innocent until proven guilty. The burden of proof rests on the accusers. This is necessary to discourage wrongful accusations and also because the purpose of the trial is precisely the establishment of guilt. If guilt is assumed beforehand, then why have a trial in the first place?
  • No forced confession, because that would defeat the purpose of convicting the real perpetrator. And no obligation to incriminate yourself (the right to remain silent), which is linked to the rule that the burden of proof rests with the accusers.
  • No excessively tough penalties. The purpose is to punish, to prevent repetitions of the crime by the same criminal and to deter other criminals, not to balance the wrong that has been done by an equally painful punishment.
  • “Ne bis in idem”: no two trials for the same offense. If people can be retried continuously for the same crime, then the purpose is obviously not the punishment of proven criminals, but punishment per se. Anyway, if all the rules listed here are respected, there is no need for a retrial. This rule is also called double jeopardy.
  • “Nulla poena sine lege”: no crime or punishment without a law voted and published before the criminal deed. In other words, no retroactive laws, no laws with retroactive effect (laws which make deeds punishable after they have been committed). One cannot punish people for acts that were not a crime at the time when they were committed, because people should know what is or is not allowed so that they can plan their lives as law-abiding citizens.
  • For the same reason, laws should be predictable and should not change all the time. Nobody is responsible for a violation of a law if the law changes from day to day, because if the law changes constantly, then nobody knows the law and then nobody can respect the law. Predictability and permanence of the law are prerequisites for obedience, just as knowledge and publicity.
  • There should not be too many rules, otherwise the judges and the police will not have enough time to enforce them all or to punish all violations of all rules, which leads to injustice. Too many rules also leads to involuntary violations of rules, because citizens do not know what they are or are not allowed to do. The purpose of the justice system is to punish crimes, not mistakes; criminals who knowingly violate rules, not law-abiding citizens who unknowingly do what they shouldn’t.

All these elements put together make the justice system just, and protect the citizens against the state or against fellow citizens that want to abuse the justice system. If one element is missing, then all the others may become useless.