Racism (26): Racism in Criminal Justice

African Americans get, on average, a raw deal from the criminal justice system in the US. They get arrested more often, in part because of racial profiling; when they end up in court, they face racially biased juries; and when it’s time to sentence them, they receive harsher penalties and join an already overrepresented group in the prison system (African Americans are more likely to spend time in jail and when they do they spend more time in jail). Some more evidence:

Biased juries

Here’s a study showing that the racial composition of juries affects trial outcomes and conviction rates:

This article examines the impact of jury racial composition on trial outcomes using a data set of felony trials in Florida between 2000 and 2010. We use a research design that exploits day-to-day variation in the composition of the jury pool to isolate quasi-random variation in the composition of the seated jury, finding evidence that (i) juries formed from all-white jury pools convict black defendants significantly (16 percentage points) more often than white defendants, and (ii) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member. The impact of jury race is much greater than what a simple correlation of the race of the seated jury and conviction rates would suggest. These findings imply that the application of justice is highly uneven and raise obvious concerns about the fairness of trials in jurisdictions with a small proportion of blacks in the jury pool. (source)

Whether or not someone is convicted has a lot to do with the luck of the draw or with the success of prosecutors or defendants wishing to remove people from juries. This raises obvious concerns about the fairness of criminal justice.

Biased prosecutors

African Americans receive longer sentences because prosecutors are, on average, more likely to charge them with crimes that require minimum sentences:

This study provides robust evidence that black arrestees in the federal system—particularly black men—experience moderately but significantly worse case outcomes than do white defendants arrested for the same crimes and with the same criminal history. Most of that disparity appears to be introduced at the initial charging stage …  [C]ompared to white men, black men face charges that are on average about seven to ten percent more severe on various severity scales, and are more than twice as likely to face charges carrying mandatory minimum sentences.  These disparities persist after charge bargaining and, ultimately, are a major contributor to the large black-white disparities in prison sentence length. (source)

Biased police

An example of racial profiling: a study of New York City’s stop-and-frisk program has revealed that

out of all ethnicities stopped, white people had the highest chance of having committed a crime, despite being proportionally the least searched. (source)

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.

Measuring Human Rights (27): Measuring Crime

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

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

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

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

More on prison violence here and here.

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

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

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

Human Rights Promotion (5): When Human Rights Leave a Bad Taste in Your Mouth, Ctd.

Following up on a previous post, here’s one additional example of things human rights defenders normally reject but still feel forced to accept as the better one of two terrible options: in some cases, life in prison seems to be better than freedom.

Life goes on for inmates … They adapt to prison. They are able to acquire privileges through good behavior. They enjoy recreational opportunities, a social life, and family visits. They receive food, shelter, and medical care at state expense. By contrast, research on life after even relatively short stays in prison suggests that ex-inmates typically face extraordinary, long-term challenges to reintegration and a return to the level of well-being they enjoyed before prison. … [A] study [finds] that black men survive longer inside prison than outside it. (source, source, source)

None of this means that it’s good to keep people in prison – and yet, given our failure to guarantee human rights for minorities, ex-inmates and poor people, being in prison does have certain advantages. This should go some way to explaining this bizarre story:

Unemployed and without health insurance, [a] man in North Carolina has himself arrested in order to receive treatment. … It was not perhaps the most obvious way of getting a bad back, arthritis and a dodgy foot seen to. But if you’re unemployed in North Carolina with no health insurance, there is no obvious way.

So on 9 June James Verone left his Gastonia home, took a ride to a bank and carried out a robbery. Well, sort of.

What he did was hand the clerk a note that said: “This is a bank robbery, please only give me one dollar.” Then, as he later told the local NBC news station, he calmly sat in the corner of the bank having told the clerk: “I’ll be sitting right over there in the chair waiting for the police.” …

He told the paper he had lost his job after 17 years as a Coca-Cola delivery man, and with it his health insurance. He was in increasing pain from slipped discs, arthritic joints, a gammy foot and a growth on his chest.

Since being in the jail he has attained his goal: he has been seen by nurses and an appointment with a doctor is booked. (source)

It’s a sorry state of affairs that people want to be in prison because being in prison is better than their life outside.

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.

Racism (16): Race and Crime

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

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

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

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

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

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

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

More on capital punishment here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. The criminal acted with free will

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

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

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

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

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

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

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

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

5. The criminal acted with intent

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

6. The criminal caused the crime

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

7. The criminal is found guilty after a fair trial

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

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

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

Conclusion

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

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

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

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

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

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

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

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

It seems there’s a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bonus paper here. Quote:

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

More on migration.

Racism (11): Race and Employment, Ctd.

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

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

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

Lies, Damned Lies, and Statistics (26): Objects in Statistics May Appear Bigger Than They Are, Ctd.

I’ve mentioned in a previous post how some numbers or stats can make a problem appear much bigger than it really is (the case in the previous post was about the numbers of suicides in a particular company). The error – or fraud, depending on the motivation – lies in the absence of a comparison with a “normal” number (in the previous post, people failed to compare the number of suicides in the company with the total number of suicides in the country, which made them leap to conclusions about “company stress”, “hyper-capitalism”, “worker exploitation” etc.).

The error is, in other words, absence of context and of distance from the “fait divers”. I’ve now come across a similar example, cited by Aleks Jakulin here. As you know, one of the favorite controversies (some would say nontroversies) of the American right wing is the fate of the prisoners at Guantanamo. President Obama has vowed to close the prison, and either release those who cannot be charged or tranfer them to prisons on the mainland. Many conservatives fear that releasing them would endanger America (some even believe that locking them away in supermax prisons on the mainland is a risk not worth taking). Even those who can’t be charged with a crime, they say, may be a threat in the future. I won’t deal with the perverse nature of this kind of reasoning, except to say that it would justify arbitrary and indefinite detention of large groups of “risky” people.

What I want to deal with here is one of the “facts” that conservatives cite in order to substantiate their fears: recidivism by former Guantanamo detainees.

Pentagon officials have not released updated statistics on recidivism, but the unclassified report from April says 74 individuals, or 14 percent of former detainees, have turned to or are suspected of having turned to terrorism activity since their release.

Of the more than 530 detainees released from the prison between 2002 and last spring, 27 were confirmed to have engaged in terrorist activities and 47 were suspected of participating in a terrorist act, according to Pentagon statistics cited in the spring report. (source)

Such and other stats are ostentatiously displayed and repeated by partisan mouthpieces as a means to scare the s*** out of us, and keep possibly innocent people in jail. The problem is that the levels of recidivism cited above, are way below normal levels of recidivism:

[In the] general population, … about 65% of prisoners are expected to be rearrested within 3 years. The numbers seem lower in recent years, about 58%. More at Wikipedia. (source)

Gender Discrimination (21): The Politics of the Body

The politics of the body, or “body politics”, is a concept, originally used by early feminists I believe, to describe government policies or laws and cultural or social practices used by society to regulate and control the human body. Feminists focus on the female body but the case can be made that society controls both the female and the male body, obviously not always in the same way. The concept is also used to describe the opposite: the struggle against the social and political powers that try to control the body and the act of reclaiming bodily self-control, or corporal self-determination. Body politics has therefore a positive and a negative meaning: it’s both subordination and emancipation.

Corporal self-determination is obviously an important value. People should, in general, be able to do with their body what they want, free from interference by the state, by individuals or by groups in society.

Here are some examples of body politics:

Abortion

Whether or not you believe that abortion should be allowed, you have to accept that legal prohibition and moral dissuasion of abortion are examples of body politics. In both cases, women who want an abortion lose their power to decide autonomously what to do with their bodies; society imposes rules on what individuals are allowed to do with their bodies; and power – legal or moral – is used to enforce these rules. You may believe that these rules are necessary in order to protect an overriding value that trumps the value of self-determination, in this case probably the value of the life of the unborn infant, or perhaps even the right to self-determination of the unborn infant. But you can’t dispute that you engage in body politics.

Organ trade

Similarly, legislation or social taboos prohibiting the free trade of organs (see also here) impose restrictions on the things people can do with their bodies. However, the analogy with abortion isn’t perfect, because proponents of restrictions can arguably claim that the sale of organs isn’t an expression of self-determination but of the lack of it: it’s typically poor people who are driven to the extreme of organ sale as a means to stay alive, while the richer you are the easier it is to get an abortion. Organ sale is then not an expression of the freedom to do with your body what you like, without paternalistic interference, but an expression of necessity and lack of freedom. Whatever the merits of this argument, restrictions on organ trade are clearly an example of body politics.

Capital punishment, corporal punishment, imprisonment

The state uses power in order to enforce or enact criminal punishment, and this is often power directed against the body of the convicted criminal and eliminating the criminal’s corporal self-determination. There’s also the quasi-institutional practice of prison rape.

Sex trafficking and slavery, sexual violence, arranged marriages

Cultural norms regarding the acceptability of sexual violence (e.g. rape as a form of punishment and female genital mutilation), of arranged marriages (which can be labeled a form of sexual violence), of the sale of children or wives for the purpose of prostitution are also examples of body politics. The women and children in question obviously lose their corporal self-determination.

Gender discrimination

Gender discrimination, the inferior treatment of women, and the imposition of gender roles, whether legally sanctioned or not, are other examples, although with a twist. Gender discrimination can remove the power of corporal self-determination of the women who fall victim to it – e.g. in the case of gender discrimination as expressed in sexual violence or in rules restricting the freedom of movement of women. But it doesn’t have to. For example, gender discrimination in wages (the wage gap) doesn’t affect corporal self-determination.

The body politics inherent in gender discrimination is more evident in the origins of discrimination than in the results. Gender roles, which often result in gender discrimination, are based on certain convictions regarding the physical inferiority of women (e.g. their lack of physical strength), or on the belief that the female body is made for specific tasks, and is perhaps even better than the male body for these tasks.

Likewise, rules that discriminate against women and restrict the things they can do, are generally based on dubious theories regarding the nature of the female body. Women are said to promote carnal lust, and their equal participation in life would have disrupting and destructive consequences.

Homophobia

Similarly, legislation or social taboos against homosexual relationships remove corporal self-determination and are based on certain beliefs about the nature of the human body.

Clearly, this isn’t a complete list of all possible cases of body politics, but it can serve the purpose of illustration (other examples could include rules prohibiting interracial marriage, bestiality taboos, legislation against assisted suicide etc.). What is also clear is that every case isn’t equally detrimental for self-determination. Some cases can even be justifiable from a liberal perspective. Self-determination, after all, isn’t the only value, and neither is it a value that necessarily trumps other values.

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)

Types of Human Rights Violations (2): Self-Inflicted Human Rights Violations

We usually think of human rights violations as a harm inflicted by one person on another, by the state on some of its citizens, by companies on citizens etc. And that’s indeed the natural way to think of them. But there is also something we can call self-inflicted human rights violations.

Self-inflicted human rights violations can be classified into different subgroups: involuntary self-inflicted human rights violations, voluntary ones, mixed cases or unclear cases, cases similar to risk taking, cases involving individual and their rights, and cases involving groups and the rights of their members.

Involuntary self-inflicted human rights violations

Some people make mistakes, or act in a self-destructive way or in a way that causes involuntary harm to themselves. For example, while poverty has many causes, some people are poor because of their own actions or omissions. Hence they violate their own right to a certain living standard (art. 25 of the Universal Declaration). Other people act in such a way that they make it very hard on themselves to find a job, violating their own right to work.

Voluntary self-inflicted human rights violations

Some people just decide to give up some of their rights voluntarily. They may decide that these rights are not important, or less important than something else, e.g. their religion or culture. Some examples: the participants in certain reality TV shows such as Big Brother, forfeiting their right to privacy; people choosing euthanasia or (assisted) suicide; people choosing to be unemployed etc. As long as these people don’t cause harm to anyone else, it’s difficult to see how one can disapprove of them. After all, it’s their life and their rights, so they alone can decide what to do with them.

Between voluntary and involuntary

It starts to become difficult when the involuntary masquerades as the voluntary. And there are indeed many cases that are mixed or where it’s not clear if we’re dealing with voluntary or involuntary self-inflicted rights violations. Take the school drop-out for example. At first sight, one can say that someone who decides not to finish school takes a voluntary decision to do so, and that we can’t label this an involuntary self-inflicted violation of the right to education. However, is such a choice really voluntary? Remember we’re often dealing with children in these cases. Voluntary means that there is a choice. And a choice implies knowledge of alternatives, as well as knowledge of the different consequences of different choices. Without these two types of knowledge, we can hardly say that there is a choice. This knowledge assumes that there has been education, and hence that we are dealing with an educated grown-up, not a teenage drop-out.

Another example: Muslim girls or women who voluntarily accept the restrictions imposed on their gender by their religion, hence violating their own right to equal treatment and non-discrimination. Again, no problem if it’s really voluntary. But is it? Didn’t their education and social environment condition them in believing that a certain interpretation of their religion is more important than their human rights? Possibly so.

Risk

I talked about risk and human rights before, albeit in another context. Risk is relevant here because it can lead to self-inflicted human rights violations. People who do not voluntarily violate their own rights, or who don’t make mistakes that cause violations of their own rights, may nevertheless act in such a way that they take a conscious risk that their actions will lead to violations of their own rights. Take the criminal for instance. He takes the risk that his actions will cause him to end up in prison, in which case he has violated his own right to free movement, and possibly other rights as well.

Such a risk is also on the borderline between voluntary and involuntary. If you take a risk, it has to do with risking certain consequences you want to avoid. You don’t want these consequences, so if they occur the situation can be said to be involuntary. On the other hand, the fact that you take the risk of these consequences occurring, indicates some level of acceptance of these consequences, but not full acceptance (otherwise it would be silly to speak about a “risk”). And acceptance equals voluntary. To take the same example: the convicted criminal did not enter prison voluntarily, but the fact that he took the risk of ending up in prison indicates that his predicament is to some extent voluntary. He could also not have taken the risk.

The rights of group members rather than individuals

There’s a difference between individuals giving up or violating their own rights, and groups doing the same for their members. Take the example of the Roma minorities in parts of Europe. Many of the Roma parents don’t register their children at birth. Without a birth certificate, it’s hard to receive benefits or access to schools. When girls reach the age of 14 or 15, they are taken out of school and they enter into arranged marriages. Such actions cause serious harm to children’s education, and are a major cause of the continuing poverty of many Roma communities.