Human Rights Promotion (20): Exposing Criminals

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

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

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

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

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

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

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

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

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

Crime and Human Rights (22): Blame Is So 20th Century

Blame is useless in criminal punishment. We don’t need it. Rather than blaming the criminal, as we so often do, we should pay sole attention to criminal actions. It’s those actions that are the problem. Crimes are bad – i.a. because a lot of crimes result in rights violations – and whether criminals are bad is of secondary importance. What we need to do is put an end to rights violations and crimes. In order to do that we have to focus on actions: on the consequences of certain harmful actions, and on ways to prevent them from occurring in the future.

Blame doesn’t help us to stop harmful actions. At least not immediately. (One could argue that blame teaches people about morality, but that’s a longterm goal). What does help, in some cases, is a focus on character. However, the purpose of this focus on character is not to build a case for blame. An understanding of a criminal’s character – of his or her general viciousness or dickishness – can help us avoid future crimes and rights violations because this understanding can tell us something about the need for incapacitation. A bad person poses a higher risk of recidivism than someone who has made a mistake or has committed one intentional evil act. However, this punishment of incapacitation isn’t the result of the criminal’s blameworthiness. The only reason to incapacitate a criminal is the risk of future harmful actions.

What we tend to do is the opposite. If we speak about a criminal’s character, it’s usually because we want to blame the criminal beyond what we would normally think is necessary. There are at least three stages of blame: people are blamed for doing something wrong accidentally or stupidly; people who do something wrong intentionally are blamed somewhat more; and people who do something because of their nasty character are blamed even more. (In criminal trials it’s common that judges take into account past actions as either aggravating or mitigating circumstances).

We often want to impose additional blame on someone who has done wrong and has a history of doing wrong because we believe that blame should be about character. Bad people should receive more blame than people who do one thing wrong. If two people commit the same crime but one does it because he or she is a bad person and the other for opportunistic reasons for example, then the former should receive more blame simply because he or she is a bad person. A bad character is worse than one bad intentional act.

What I want to do is sever the link between blame and character, and use a person’s character not as a source of blame but as a means to assess the likelihood of future wrongdoing and to avoid crimes and rights violations. Rather than use people’s character as a source of blame – which is very hard anyway given what we don’t know about genetics, early childhood experiences etc. – we should do character assessment, to the extent that it is possible, because it teaches us something about the need for incapacitation as a means to avoid harmful actions.

Obviously, this has consequences for the types and severity of the criminal punishments we can impose. (A person’s character or habitual behavior shouldn’t be an aggravating circumstance in itself, irrespective of the need for incapacitation). However, what I’m arguing here may have consequences beyond the realm of criminal punishment. It may be true that we blame too often and too much in general. A child who is blamed for wrongdoing may thereby learn the rules of morality; a worker who is blamed for misconduct may become a better worker, etc. But we should admit that we usually don’t have a good reason for blaming people. People’s intentions are hard to figure out. And it’s even harder to judge someone’s character, except in a few extreme cases. We’re also in the dark about what drives people: are their actions really the result of blameworthy choices, or is there something deeper such as their genetic make-up or early experiences that makes them do what they do? Hard to tell, and yet blame seems so easy.

More posts in this series are here.

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

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

1. Retribution

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

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

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

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

2. Deterrence

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

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

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

3. Incapacitation

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

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

4. Symbolic confirmation of social rules

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

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

5. Signaling

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

6. Healing and pacification

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

7. Rehabilitation

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

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

Conclusion

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

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

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

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

More here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Human Rights Promotion (7): The Human Rights of Adolf Hitler

Suppose Hitler didn’t kill himself and was captured alive by the Russians in Berlin, or by Israeli commandos in South America. What would we be morally allowed to do to him if we had managed to capture him? Does a person like him have human rights that we have to respect? Of course. Whatever dehumanizing name you wish to call him, he was a human being like the rest of us, and we have to deal with that fact. Every human being has rights and those rights are not conditional upon good behavior. No one has less or more rights than the next person. It’s not because someone has committed horrible crimes that we are allowed to take away his or her rights.

Hitler’s rights include a right to life. This right is quasi-absolute and can only be limited if that’s the only way to save other lives. So for instance, we are allowed to shoot him on the spot if he resists arrest and threatens to kill us or others (such as hostages). But suppose Hitler is captured alive and is no longer a threat to the lives of others. Shooting him is then not allowed because that would be an extrajudicial execution.

Are we allowed to execute him after a proper trial? Maybe a living Hitler who’s kept in prison would still be able to encourage his followers to continue their murderous rampage and maybe that’s a sound argument for executing rather than imprisoning him. But I think that’s a far-fetched scenario. Only in the unlikely case that there is a real risk of an imprisoned Hitler ordering murder and that executing him is the only means to remove a threat to the lives of others, would his execution be allowed. This is equivalent to the case in which Hitler is holding hostages. However, even in this case, going after Hitler’s followers would be more effective.

So capital punishment is not an option. Remember also that other justifications of capital punishment aren’t available: we are not allowed to deter future criminals by killing present criminals, not even if it works, since that would be an instrumentalization of a human being. Going down that road ultimately leads to the devaluation of all human life. Life imprisonment without parole then? Not an option either because even Hitler can be rehabilitated. The problem with rehabilitation is that you never know who can do it until they do it. You can’t say in advance that some people are beyond rehabilitation.

Some form of criminal punishment is obviously warranted since Hitler acted with intent, knew the consequences of his actions, caused the consequences of his actions, wasn’t forced to act, was aware of alternative courses of action, violated existing law and was found guilty of such violations after a fair trial (ex hypothesi). Given the unavailability of capital punishment and life without parole, some fixed term prison sentence seems to be the only remaining option. And I know that’s a huge anticlimax for most of us.

But what do we want to achieve with that sentence? Retribution? Even if retribution is a justified end of punishment – which it isn’t since we should in general try to be better than criminals – a fixed term sentence is hardly retribution for Hitler: on any account, this is less than what he deserves. And more than this is ruled out (see above). Not only aren’t we morally allowed to execute him, but even executing him doesn’t seem enough. If anything, he deserves to be executed millions of times over, which we obviously can’t do even if we were morally allowed to do it.

Perhaps we want to achieve incapacitation. That’s reasonable enough in this case. You can hardly allow Hitler to walk the streets. But again, this is truly anti-climactic. It leaves us with our anger and sadness. But I guess there’s no way to leave our anger and sadness behind in this case. The morale of this story is that the same is true in many other, less extreme cases as well. We tend to be too ambitious when punishing criminals.

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

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

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

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

More on capital punishment is here.

Capital Punishment (36): Retribution

I understand the argument that people sentenced to death aren’t getting any worse than they’ve given the world. Still, I think that the state could and should be held to a slightly higher standard of behavior than that which we expect from people who are literally deemed worthy of being killed like animals. (source)

More on capital punishment and retribution.

Crime and Human Rights (13): What’s the Use of Criminal Punishment?

Criminal punishment, even in our non-medieval and so-called Enlightened societies, is the deliberate, intentional and organized imposition of harm on those we believe to be guilty of a crime. That remains the case even if we assume that those who are punished are in general guilty and that all necessary preconditions for criminal punishment are present (for example, that people are punished only after a fair trial, conducted by those authorized to conduct it; or that only those people aware of the moral significance of their actions are punished).

Given this imposition of harm, it’s important to be able to justify our systems of criminal punishment. Usually, but not always, the justifications people offer invoke the need to protect the rights of victims – actual or potential – but it’s far from certain that any justification can withstand even superficial criticism. Let’s look at the different justifications in turn. I think we can distinguish at least 5 common types of justification:

  1. Internalization
  2. Deterrence
  3. Rehabilitation
  4. Incapacitation
  5. Retribution

I’ll first offer a more or less neutral description of these different justifications, before criticizing them.

Justifications of criminal punishment

1. Internalization

The system of criminal punishment is justified because it is an expressive affirmation of shared values within a community (in other words, it’s a form of signaling). This affirmation serves to internalize shared values. When the members of the community have successfully internalized the shared values of the community, it’s assumed that crime will occur less frequently.

2. Deterrence

According to this second type of justification, criminal punishment is justified when it can be shown that the threat and practice of punishment is necessary for the prevention of future crimes, not through internalization of the norms expressed in punishment, but through fear of punishment. Punishment is supposed to reduce the prevalence of crime because it works as a threat. It’s assumed that most rational people who perceive this threat engage in risk analysis, weigh the possible costs and benefits of an intended crime, and conclude that the costs outweigh the benefits (the cost evaluation is a combination of likelihood of the threat – i.e. enforcement – plus severity of the threat). As a result, people reduce their willingness to carry out the crime.

3. Rehabilitation

Unlike internalization (1) and deterrence (2), this third type of justification does not aim at a general prevention or decrease in crime. Criminal punishment is justified because it prevents a particular criminal from engaging in future crimes. Prevention occurs because it’s believed to be possible to change the criminal’s propensity for crime through rehabilitative efforts within the penal system.

4. Incapacitation

This fourth type of justification also doesn’t aim at a general prevention or decrease of crime. Punishment is justified because it prevents a particular criminal from engaging in future crimes, not by way of rehabilitation but by way of incapacitation, which means either incarceration or execution.

5. Retribution

Criminal punishment is justified because criminals deserve to be punished in a certain way.

Consequentialism and deontology

Justifications 1 to 4 are consequentialist in nature: punishment is justified because of the good consequences that result from it, or because of the bad consequence that would result from our failure to punish. They all assume that punishment can prevent crime and hence protect victims – real or possible victims. Justification 5 is of a more deontological nature: punishment is a good in itself in the sense that it is required by justice irrespective of the likely consequences.

Contradictions between justifications

Notice how these different justifications may be incompatible.

Contradiction between (3) and (5)

Rehabilitation (3) means, by definition, flexible sentencing. Penal officials and judges need to have discretion, otherwise they can’t differentiate between successfully rehabilitated prisoners and others. Such discretion typically invokes anger among those who adopt a retributivist justification (5). Retributivism focuses on just desert in sentencing: a criminal should get the sentence he or she deserves, and usually this means a sentence that is in some way proportional to the gravity of the crime and to the harm done to the victim and to society. That is why retributivists demand uniformity in sentencing, and sometimes even mandatory sentencing. The discretion inherent in rehabilitation provokes feelings of unfairness among retributivists.

Contradiction between (4) and (5)

But also incapacitation (4) is often at odds with retributivism (5). For example, incapacitation in the form of incarceration may be less than what the criminal is supposed to deserve. Perhaps the criminal deserves to die according to the retributivist.

Contradiction between (2) and (5)

Retribution (5) can be incompatible with deterrence (2) because effective deterrence may require punishment that is more severe than the punishment that the criminal deserves. For example, there’s no reason why those who believe in deterrence should reject capital punishment for petty theft if it can be shown that such a punishment effectively deters this crime and that the benefits of deterrence outweigh the harm done by the execution. Something more is required to reject such a punishment, and that’s where retribution comes in. Retributivists would claim that petty thieves don’t deserve to die.

Contradiction between (3) and (4)

And a last example of a contradiction between different types of justification of criminal punishment: incapacitation (4) may make rehabilitation (3) more difficult. After all, it’s not obvious that prison is the best locus for rehabilitation. On the contrary, it’s often argued that prison is a school for criminals. Rehabilitation may then require a sentence such as a fine or GPS tracking.

A scale of decreasing ambition

We can view justifications 1 to 5 as being on a scale from most to least ambitious.

1. Internalization

Internalization (1) is obviously the most ambitious since it promises moral education of the citizenry and moral compliance with the law. The obvious problem here is that the desired outcome is highly uncertain, perhaps even utopian. It’s not sure that this uncertain objective justifies the very real harm imposed by criminal punishment.

2. Deterrence

Deterrence (2) is somewhat less ambitious since it discards the educational function of punishment as highly unlikely and aims instead at grudging compliance based on fear (as opposed to moral compliance based on conviction). Still, it’s relatively ambitious since it expects a society wide reduction in crime resulting from fear and rational risk analysis on the part of potential criminals. The data have shown that deterrence as well is overambitious.

3. Rehabilitation

Rehabilitation (3) in turn discards some of the unrealistic assumptions of deterrence (2), such as rationality on the part of future criminals and strict enforcement of the law, and tries to avoid some of the counterintuitive consequences of deterrence (2), such as the tendency to increase the severity of punishments resulting from the need to tip the scale in the risk analysis of criminals. It also tries to avoid the immoral instrumentalization inherent in deterrence. Moreover, it’s not clear that deterrence works, empirically.

Rehabilitation (3) is less ambitious than internalization or deterrence because it focuses on preventing only certain particular criminals from engaging in further crimes. There’s no society wide ambition anymore. However, the success of rehabilitative efforts during the past decades, as measured by reductions in recidivism, is mixed, to say the least. It’s correct to say that most criminologists have become somewhat disenchanted with rehabilitation. And there’s also some doubt about the morality of some rehabilitation techniques (especially those that have been lampooned in A Clockwork Orange). Which is why many have scaled back their ambitions even more and now focus on incapacitation (4).

4. Incapacitation

Let’s limit our discussion of incapacitation (4) to incarceration, since capital punishment is fraught with many other problems that have been widely discussed before on this blog. The problem with incapacitation is that it doesn’t have a clear boundary. Taken by itself, incapacitation theory could justify life imprisonment for petty crimes. In fact, the whole tough on crime philosophy can be seen as an exaggeration of incapacitation theory following the perceived failure of rehabilitation.

5. Retribution

This lack of a boundary in incapacitation theory (4) has led people to fall back on perhaps the oldest and least ambitious justification of criminal punishment, namely retribution (5). Retribution can be seen as a type of justification of criminal punishment that is entirely without ambition: punishment is inflicted for its own sake, not for the possible benefits it can produce. Criminals should be punished because it’s the right thing to do and because they deserve it, not because some aim or purpose can be served by it. This element of desert allows us to avoid both punishment that is viewed as being too severe – as in incapacitation (4) and deterrence (2) – and punishment that is viewed as being too lenient – as in rehabilitation (3).

Retributivism in fact abandons the pretense that punishment has a purpose, that it can achieve a desired objective and that no other, less severe means are available for this objective. However, retributivism isn’t a solid justification of criminal punishment either. It has proven to be impossible to know what exactly it is that the guilty deserve. Lex talionis is the easy answer, but it’s no longer a convincing one in modern societies. Proportionality is the difficult answer: severity in punishment should be proportional to the gravity of the offense. That’s the difficult answer because it leaves us with a system that is inherently imprecise and arbitrary. An infinite number of punishments are consistent with this justification. Hence it’s not really a justification at all.

No justification?

So, where does this leave us? It seems like criminal punishment is not justifiable. And indeed, there’s a long tradition in philosophy that views punishment as nothing more than rationalized anger, revenge and domination. Michel Foucault for example has analyzed criminal punishment as a cogwheel in the continuation of social power relations. The fact that there are so many African Americans in U.S. prisons and in execution statistics can be viewed as a symptom of continued racist domination. Nietzsche has described criminal punishment as being motivated solely by a deep natural desire to punish, subordinate and coerce. And indeed, if you want to punish someone for a crime, you first need to establish control over the would-be punishee. All systems of criminal punishment seems to be doomed to failure if there isn’t a prior system of control. This would indicate that there is already a prior system of control operating in society before criminal punishment takes effect, which in turn seems to indicate that systems of criminal punishment are merely the strong arm of deeper systems of control.

On the other hand, it seems difficult for anyone who’s serious about human rights to simply abandon criminal punishment. Without criminal punishment, we in fact expect victims of crime to either fend for themselves or undergo their suffering and rights violations. Neither outcome would be just.

Capital Punishment (35): The Cost

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then. (source)

Compared to other types of criminal punishment, that’s a lot:

A 2003 legislative audit in Kansas found that the estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case. Death penalty case costs were counted through to execution (median cost $1.26 million). Non-death penalty case costs were counted through to the end of incarceration (median cost $740,000). (source)

OK, you may say, but what if we just shoot the bastards immediately? Wouldn’t that drive down the cost? We could then avoid the lengthy appeals. Indeed, we could avoid the appeals, but the cost would not drop significantly:

The greatest costs associated with the death penalty occur prior to and during trial, not in post-conviction proceedings. Even if all post-conviction proceedings (appeals) were abolished, the death penalty would still be more expensive than alternative sentences. (source)

Not surprisingly, our current recession has had at least the benefit that some cash-strapped governments are reconsidering the death penalty. That is, until the economy recovers, I’m afraid.

Capital Punishment (34): Mere Signaling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More on capital punishment is here.

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

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

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

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

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

More on capital punishment here.

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

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

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

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

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

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

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

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

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

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

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

2. The criminal acted with free will

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

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

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

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

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

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

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

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

5. The criminal acted with intent

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

6. The criminal caused the crime

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

7. The criminal is found guilty after a fair trial

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

Crime and Human Rights (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.

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

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

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

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

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

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

Hate (6): Hate Crime

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

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

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

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

Capital Punishment (22): Deterrence

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

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

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

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

There are three problems with deterrence understood like this.

Irrationality

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

Reductio ad absurdum

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

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

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

Doesn’t work, unless…

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

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

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

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

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

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

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

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

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

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

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

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

Terrorism and Human Rights (20): Targeted Killing of Terrorists

Are governments, or even private individuals, allowed to kill terrorists when killing them is the only way to prevent a terrorist attack? Intuitively, I would say “yes”, but only if certain conditions are met: the attack must be imminent, and no other solution is possible. In fact, these conditions limit the possibility to cases such as killing a terrorist with explosives clearly visible, and seen – from a distance – to be moving towards a target.

Most cases will be different and will make it possible for the police or bystanders to disable the terrorist in some other way, short of killing him or her, and without putting themselves at risk. I never understood why the British SAS needed a policy to target and kill IRA terrorists when they were not engaged in an imminent terrorist attack and when they could easily be arrested (see here for the story).

Now, one could reply to this with this question: why should we treat terrorists better than soldiers? In a war, soldiers can be killed almost at will. If an army spots enemy soldiers, it can kill them without violating any law of war, even if these enemy soldiers are not engaged in an imminent attack. So why can’t we kill terrorists in the same way? In fact, we should treat soldiers better, since many of them are conscripts who do not target innocent civilians. Terrorists are (normally) volunteers who target innocent civilians. That makes two aggravating circumstances.

In answer to this, we could state that terrorism isn’t a war; it’s a criminal act. Some things are allowed in a war which aren’t allowed in peacetime. And terrorism is horrible and not peaceful at all, but not everything that is horrible or a breach of peace is necessarily a war. If we are allowed to stop the crime of terrorism with targeted killings – even if the crime is not imminent – then why not normal murder as well? For example, we may know that someone is about to commit (a non-terrorist) murder, but the act is not imminent. If you accept the SAS tactic, you also have to accept the preventive killing of normal murderers.

Some go even further, and accept not only targeted killing in cases without an imminent threat, but also killing after the fact. They would accept the killing of Osama bin Laden, even if he wasn’t planning a non-imminent attack. They would justify this killing based on his past actions. (Another example is the targeted killing by Mossad of the people involved in the Munich Olympics killings, made into a movie by Spielberg). I think that’s just as unacceptable as the targeted killing SAS style. It’s punishment without due process.

Capital Punishment (12): Crime Prevention Through Fear

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

Prevention through punishment

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

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

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

Deterrence

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

There are several problems with this statement:

1. Rationality

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

2. Under-enforcement

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

3. Blindness to the causes of crime

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

4. The immorality of deterrence

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

Education

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

And what about the victims?

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

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

The Ethics of Human Rights (12): How to Deal With the Horrors of the Past?

After a country has gone through democratic reforms, it often faces the difficulty of dealing with the horrors and injustices committed by the previous dictatorial regime. In many cases, a democratic transformation is possible only because of some kind of deal with the previous rulers. They agree to give up power and in exchange receive amnesty and immunity (take the case of Pinochet or of many of Franco’s assistants).

However, things may even be worse. In some cases, the horrors have been committed, not only by a handful of rulers, but by large numbers of citizens. The transformation to a stable democracy is then sealed by a so-called “Pact of Silence”, in which the victims and their families agree to burry the past in order to make it possible for the different parts of the new democratic state to live together.

Democratic progress and democratic stability may indeed require the tragic choice of impunity for the old rulers. But they also require national reconciliation when the past atrocities were the work not only of the rulers but also of numerous civilian henchmen. A society that is not at peace with itself doesn’t have a future, especially when it is a democracy. A democracy, much more than any other state, require the support of a large majority of the people. If a substantial number of people feel that the new democracy is the state of the “victors”, a state moreover which will do everything to get back at them, then we will witness strong social division and a lack of loyalty, both of which are very dangerous for young and not so young democracies. No democracy can afford dissatisfaction and disloyalty in large groups of civilians.

Does this reconciliation, which is necessary for the proper functioning of the new democratic state, require silence about the atrocities of the past? A “turning of the page”? I don’t thinks so, because this silence will not satisfy the victims and their families. And then they will not accept the new democracy. And neither will the international community. Silence and inaction undermine the legitimacy of the new state and sends a message to future criminals.

Punishment can indeed alienate a large portion of the population, and can be detrimental for a young democracy. But so can silence. A democracy is caught between doing too much and doing nothing. However, there’s a large distance between silence and punishment, a distance which can be filled with the writing of history, the telling of the truth (as in the South-African Truth Commission), and the dispensing of forgiveness. Victims and their families will never accept silence, certainly not in the long term. The telling of the truth is very important to them, more important probably than punishment. And in exchange they may be convinced to forgive, especially if the truth-tellers can also express regret, remorse and guilt. This forgiveness in turn sends a strong message to the perpetrators, a message of inclusion and love. And this is a strong basis for a new society. Forgiveness is the opposite of forgetting. Because of the extraordinary nature of the forgiveness for an act of horror, this act will be remembered forever. A “right to truth” can be based on the right to information as expressed in art. 19 of the Universal Declaration.

The remembrance of the past may require some kind of amnesty. One can convince people to tell the truth and to ask for forgiveness by promising some kind of leniency. To fight amnesia, amnesty may be necessary. Of course, this applies to the large number of ordinary citizens who were the executors of the crimes, not to the few leaders planning and ordering them. They have to be punished, and they can be because their support is not required for national reconciliation. Their support is not necessary for the maintenance of the new regime. How can people be expected to live their lives when the most despicable murderers continue to live among them, often in luxury and without remorse? And how can the normal criminal justice system be expected to function?

Punishment of large portions of a population, on the other hand, may satisfy some short term feelings of revenge, but does nothing to build a long term future for society. There may be judicial verdicts on their crimes, but the punishments for the crimes should be indefinitely postponed in exchange for the truth. This is not impunity. It’s the correct balance between the needs of the past and the needs of the future. Turning the page without closing the book, as someone has said.

Silence is never good. Telling the story can help to avoid the horror from repeating itself. However, telling the story isn’t a sufficient conditions. Education isn’t almighty. Present-day neo-Nazis for example know all too well what happened, and they consciously want to repeat it. But forgetting is a sufficient conditions for a repetition. Some people do learn from history. And telling the truth, making things clear will force people who want to repeat it to openly take the side of barbarity. They will have a lot more difficulties to promote their case and they will only attract barbarians.

Religion and Human Rights (10): Apostasy

Apostasy (from the Greek word for defection) is the explicit and formal abandonment or renunciation of one’s religion. The word has a pejorative connotation and is mostly used by the adherents or dignitaries of the former religion of the apostate. It is used as a condemnation. Most if not all religions consider defection a sin, which is a normal position for any religion to take. Religions, like any other group for that matter, are communities that quite naturally regret the loss of a member and consider such a loss the concern of all remaining members. They try to minimize such losses and to recover the “lost sheep” and bring them back into the “umma”. The word “apostasy” as such may not be frequently used by all religions, but all religions and all groups know the concept.

However, most religions believe that persuasion is the only legitimate tool to keep members in the group and that the sin of apostasy will be punished by God in the afterlife. Only some, and a certain form of Islam is an example, believe that it is up to man on earth to punish apostates. They make apostasy a punishable offense and these punishments are human rights violations in two different ways. First of all, the punishments themselves often inflict harm on the victims thereby violating their rights to bodily integrity or even life. And secondly, they violate the right to freedom of religion.

Article 18 of the Universal Declaration of Human Rights guarantees the right to change one’s religion:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (my emphasis)

Islam is often targeted for its treatment of apostates. However, within Islam there are those like Egypt’s grand mufti Ali Gooma, who take a more liberal stance and use the Koran to back up their position. There are three verses in the Koran that are important:

“There is no compulsion in religion”. “Unto you your religion, and unto me my religion”. “Whosoever will, let him believe. Whosoever will, let him disbelieve”.

The punishments for apostasy are often not purely religious. Politics is implicated. When a state identifies with a religion and receives its authority and legitimacy from this identification, it naturally wants this religion to be the majority.

Belonging

Belonging to a group is an important human aspiration. People want to belong to something larger than themselves. Belonging gives them an identity. However, groups not only promote but sometimes also hinder the creation of an individual identity. They can, for example, impose ideological or dogmatic rules, practices or beliefs. While some people may desire enforced conformism, others will see it as contrary to their freedom. For the latter, belonging and identity should be a free and voluntary choice. It is important therefore that membership is free and that people are allowed to leave. Groups exist for the benefit of the members, not vice versa.

The fact that membership of a group is a free and non-final choice is not an expression of individualism. Communities are a very important part of an individual’s life, but not all kinds of communities. Individuals as members of a particular group must be able to decide when this group is no longer important or has become harmful. It is not up to the groups to decide that they are an important part of their members’ lives. Individuals decide which groups are important, which groups they wish to join or to leave.

If individuals, who wish to leave a group because this group violates their rights or forces them to conform, are forced to stay, then one uses the individuals as means for the survival of the group. The survival of a group is dependent on the presence of members. Using people as means dehumanizes them.

Self-defeating

If a religion forces someone to remain a member, it defeats its purpose. Someone who stays within a religion in order to avoid punishment is not guided by an understanding of the genuine value of the religion.

We can coerce someone into going to church but we will not make her life better that way. It will not work, even if the coerced person is mistaken in her belief that praying to God is a waste of time, because a valuable life has to be led from the inside. [Such a] policy is self-defeating. It may succeed in getting people to pursue valuable activities, but is does so under conditions in which the activities cease to have value for the individuals involved. If I do not see the point of an activity, then I will gain nothing from it. Hence paternalism creates the very sort of pointless activity that it was designed to prevent. We have to lead our life from the inside, in accordance with our beliefs about what gives value to life. Will Kymlicka