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

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

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

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

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

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

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

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

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

More posts in this series are here.

The Ethics of Human Rights (69): Democratic Transition Caught Between the Rights of Past and Future Generations

Here are some general observations inspired by the recent talk of a possible amnesty for Assad as a means to convince him to give up power in Syria.

Imagine a country in which roughly 20% of the population ruled the other 80% during several decades or even centuries. The members of the ruling class owned the land and controlled much of the economy, are of a different social class (perhaps even race) and made sure that the rest of the population lived in constant poverty, oppression and discrimination.

The combination of an internal uprising and external intervention produced a successful transition to a fully democratic form of government. A strong and independent judiciary is now in place, able to effectively enforce a constitution that includes a wide array of human rights.

How should this new democracy deal with the horrors of the past and the rights violations of the now defunct regime? There are two seemingly incompatible needs: victims of rights violations in the past now demand justice, but the society as a whole may be better off without justice, at least in the short run immediately after the democratic transition (and later it may be too late to bring the perpetrators to justice because they’re all dead). Justice can make it more difficult to integrate the old ruling class into the new state. Given that most of the members of that class were heavily implicated in the horrors of the past, justice can’t be a simple matter of punishing a few key perpetrators. And punishing large groups of people will alienate those people, with potentially fatal consequences for the stability of the new state. It may even be the case that one can identify a few key perpetrators, but that those are still quite important for stability even though they’re not very numerous. For example, it’s likely that the military was implicated in past injustices, but the military – especially the top brass – is very important for stability and the new state can’t risk alienating this group, even if it’s not very large. An internally divided society is not at peace with itself and risks upheaval.

However, failure to pursue justice will also divide society. Failure to do something about past injustices will result in impunity and will undermine the moral authority of the new state. Also, what would that imply for future respect for human rights? Why respect rights when past disrespect was without consequences? And if only new rights violations are prosecuted, then there will be a feeling of injustice because of double standards.

A solution to this dilemma can perhaps be found in the fact that there are degrees and different kinds of justice. Justice doesn’t have to be penal or focused on retribution or revenge. Better perhaps to emphasize truth, also a traditional element of justice. Truth, as in the so-called truth commissions, can foster repentance, forgiveness and reconciliation. Judicial prosecutions can still play a part, but their potential divisiveness can be softened by measures such as amnesty, pardon or limited punishments, on the condition that the defendants cooperate in truth commissions. It’s often the case that truth is more important to victims than retribution.

Of course, some major perpetrators may still have to be punished and perhaps even severely punished. Some types of responsibility are simply to heavy to warrant amnesty. It may be impossible for a society to exist given the presence of monsters continuing their lives as if nothing happened. It’s not necessary to “buy” the allegiance of every single individual in society, not even individuals who still have a broad base of support. In addition, we have to avoid coerced amnesty: perpetrators can blackmail the new state by threatening large-scale unrest or upheaval.

So we need to balance the needs of the past and the future. Both needs should be acknowledged and neither should be sacrificed for the other. Of course, that’s easy to say and very hard to do.

More on the rights of past and future generations here, here, here and here. More on transitional justice here. More on the prerequisites for a transition to democracy is here.

The Ethics of Human Rights (41): Human Rights of Past Generations?

In a previous post I discussed the claim that future generations of people have human rights claims against those of us who are currently alive. I argued that they probably have. The “sister-claim” is, of course, whether the same is true for past generations. Obviously past generations had human rights, just like you and me and everyone who comes after us. The question however is whether current generations can violate the rights of past generations.

For starters, it’s obvious that past and future generations should be viewed differently. Future generations can incur harm following our actions, and can therefore, prima facie, invoke rights claims against us (namely for those types of harm that are rights violations). Past generations, on the contrary, can’t be harmed by current actions, since they are dead (assuming, theologically, that deceased people are gone; if you believe that your ancestors are in heaven watching you, your actions may still harm them in some sense, although I doubt they need human rights in heaven).

If past generations can’t be harmed by current actions because they are dead, then current generations shouldn’t and even can’t adapt their actions so as to respect the rights of past generations. However, perhaps we should carve out an exception here. Maybe there are cases in which we can convincingly speak about harm done to people in the past.

Take the following example. It’s reasonable to assume that past generations – like all generations – valued the future and posthumous state of their society or the world. For example, if freedom was important to them when they were alive, they may have felt distressed about the possible prospect of a posthumous totalitarian world government. They may have been distressed because they valued freedom and/or because they were concerned about the fate of their descendants. The harm to one’s descendants is typically viewed as something of concern to oneself. We all care about the fate of our children’s children’s children, even if we may never see them. So, past generations can be harmed by current (or future) generations if the latter are seen as a threat by the former.

However, I object to calling this harm a rights violation. The harm we’re discussing here may be immoral and even unjust, but the infliction of distress still isn’t a human rights violation. The actual totalitarian government and the harm it does – as opposed to the threat – are imposed on living generations, not past generations. So unless someone comes up with a better example, I guess it’s indeed useless to speak about present generations violating the rights of past generations.

More posts in this series are here.

The Ethics of Human Rights (40): Human Rights of Future Generations, Ctd.

Do future generations of people have human rights claims against those of us who are currently alive? Can we who are currently alive violate the human rights of future generations? And if so, what should we do to avoid it?

Future generations – as opposed to past generations – can incur harm following our actions, and can therefore, prima facie, invoke rights claims against us (namely for those types of harm that are rights violations).

One thing to keep in mind when discussing the rights of future generations is the following assumption: future people have the same values and preferences, and the same impediments to these values and preferences. Human rights are in essence tools to realize values and preference, and often take away impediments to values and preferences. Following this assumption, future generations can be said to require human rights to the extent that those currently alive impede their values and preferences. However, that need not be the case. Maybe future generations will have other values or preferences, or maybe they will face different impediments that can’t be removed by human rights, or maybe they’ll have found other ways to remove certain impediments. Maybe in the future there won’t be religion, scarcity, states or animosity, but different values and impediments. Still, I’ll keep the assumption in place, both because I think it’s likely that future generations will be much like ourselves, and because the concept of “human rights of future generations” wouldn’t make any sense if that is not the case (and I really want to write this post).

Actions which affect the human rights of future generations

The easy thing to understand about the harm we, the present generations, can do to future generations is the consequentialist part: it’s fairly obvious that, given the stated assumption, some of our – potential and real – current actions can or will have negative consequences for future generations, and that some of these consequences can become worse as time goes on (see this post on the effect of time on rights violations).

Take resource depletion for example. If we now squander all or a substantial part of the earth’s oil reserves, it’s likely that future generations, and particularly those generations somewhat further in the future, will have a standard of living far below the minimum required by human rights (again, given the assumption that they need fossil energy because their preferences haven’t changed or because they haven’t found an alternative).

Present generations therefore exercise power over future generations, much like a state exercises power over its citizens. And much like a state, the present generation can be said to be bound by the human rights of those who are subjected to its power. With the exercise of power comes the duty to respect the rights of those who are subjected to power.

Risk

There may be a problem with all this, however. Contrary to the harm that is inflicted on currently living people, by their state or their powerful fellow citizens, the harm inflicted on future generations is rarely if ever a certainty, and never verifiable.

If we again take the example of resource depletion (but many other examples would do just as well), it may be the case that future generations will have invented the technology necessary to adapt to a world without oil. The chances of this happening may be small or may be large – we just don’t know and so we can’t take it into account in our considerations as to whether to adapt our behavior as a way to respect the rights of future generations.

We may assume that our actions (or inactions) can lead to rights violations in the future, but we’re never certain. So should we adapt our current behavior or not? We can verify if certain types of behavior lead to rights violations in the present, and – if they do – consequently adapt our behavior. (If lowering taxes increases poverty then we should avoid that policy). We can never verify if certain types of behavior lead to rights violations in the (distant) future. We can only guess that there’s a risk, perhaps based on similar past or present experiences. But the quality of those guesses remains uncertain.

Hence, it would seem that future rights violations can’t have the same moral standing as present and real rights violations. Or maybe they’re not even rights violations at all. Indeed, we normally don’t view the risk of a rights violation as equivalent to or as equally damaging as a real violation. Or maybe a very, very high risk of a future rights violation – assuming a good guess – equates an actually occurring rights violations?

I think all this is to some extent moot. When faced with a risk of a rights violation – or better the perception of a risk – the moral thing to do is to try to avoid the rights violation from occurring in the future, and adapt one’s behavior, in the same way as one would do when faced with a risk of causing a violation of the rights of people currently living. So the uncertainty of violations of the rights of future generations makes them no different, in some respects, from violations of the rights of current generations. Also the latter are – ex ante – uncertain, and the moral thing to do is always to adapt one’s behavior in order to minimize the risk of immoral behavior.

Some would claim that comparing future violations of the rights of living people to future violations of the rights of future generations is a mistake. Living people have rights which can – given a certain risk – be violated in the near or distant future (depending on the lifespan of those people) by our current behavior. Future generations on the other hand don’t exist, yet (and may never exist, see below), and hence can’t have anything, including rights. However, they will have rights in the future, when (and if) they live. To claim, as I do here, that we can violate future rights now doesn’t mean that we have to claim that these future rights have to exist now.

Tradeoffs between the present and the future

What to do when faced with a tradeoff between violating the rights of future generations and violating the rights of present generations? It depends on the best risk estimate of either, as well as the gravity and the number of people involved in either case, keeping in mind the fact that risk, gravity and number estimates of violations of the rights of present generations are probably better (because we can test them). Given this relative ease, we should give additional weight to the simple fact that we are dealing with really existing people as opposed to potential future people.

For example, we know that closing down an opposition newspaper is very likely to stifle free speech for a significant number of currently living people. We’re not absolutely sure of this consequence, but the risk is very, very high. We know this risk because we or others have tested it in the past. Now, suppose that we should choose between this policy and another one, for example allowing a substantial increase in green house gasses. Suppose also – I know, it’s weird but bear with me – that these two policies are, for some unspecified reason, mutually exclusive. The policy of increasing green house gasses risks putting future generations in danger of survival. When comparing the costs of both policies, we conclude that the level of risk is roughly similar (say 90% probability that the expected consequences – respectively stifling free speech and increased global warming – will indeed occur), but the gravity of the consequences is obviously much greater in the case of the second policy, as are the number of people concerned. Yet, we may still reasonably choose to implement the second policy and avoid the first because we’re more certain of our risk estimate for the first.

Actions which affect the existence or composition of future generations

Let’s take another example of current actions that have an impact on future generations: in this example, our actions do not deplete resources but have an influence on the very existence of future generations. We may destroy the earth for instance, making the very existence of future people impossible. Or we may intervene in procreation in such a way that future people will be completely different people than those who would have lived had we not intervened (that’s Derek Parfit’s so-called non-identity problem).

In both cases, our actions affect the very existence of future people, rather than their rights. And an effect on the very existence of people can’t, in itself, be considered a rights violation since there’s no right to exist. I’ve argued elsewhere why this is the case. (Of course, actions which affect the existence or composition of future generations can have, additionally, other consequence beside the existence or composition of future generations, and some of those other consequences can imply rights violations).

In other words, only the rights of actually existing persons – whether they exist now or in the future – are important. Potentially existing persons who will never exist because of our actions, do not count. Or, putting it in yet another way: the non-identity problem is not a problem in this context. The fact that the very existence or composition of future generations depends on our actions doesn’t have, in itself, any consequences for the human rights of future generations. The impact of our current actions can result in rights violations of future generations, but not if this impact is limited to the existence or composition of future generations. And the reason for this is the absence of a right to existence.

Duties instead of rights?

In order to avoid the problems created by talk of rights of future generations – namely the problems of uncertainty and of tradeoffs – it would perhaps be better to abandon all talk of rights of future generations, and focus on the duties of present generations towards future generations. And yes, there can be duties without corresponding rights: if I have a duty to respect the promises I make to you, you don’t have a corresponding human right to have these promises respected.

The Ethics of Human Rights (39): The Effect of Time on Human Rights Violations

What is the effect of the passage of time on violations of human rights?

  1. Perhaps there’s no effect: a crime remains a crime, and a rights violation remains a rights violation, even if all the victims have died long ago and their descendants don’t continue to suffer from the fact that their ancestors were wronged.
  2. Perhaps the passage of time erodes the severity of rights violations.
  3. Or perhaps the passage of time makes rights violations worse.

I think all these three effects can occur. Let’s look at them in turn.

Time has no effect

We have to distinguish this kind of case from cases in which the descendants continue to suffer from the harm done to their ancestors (I’ll deal with those latter cases below). What we’re talking about here are rights violations that have occurred many years ago, perhaps centuries ago, but don’t have an impact on the distant descendants of the initial victims. (All severe rights violations are likely to have some impact on a generation or two of descendants, but the question here is how the passage of time affects rights violations, and hence we need to imagine a sufficiently long period of time).

An example could be the execution some centuries ago of a group of political dissidents. Contrary to the case of slavery for example, you can’t reasonably claim that the descendants of the dissidents still suffer from the original rights violation centuries after it has happened. What you could claim, however, is that the passage of time didn’t reduce or increase the importance of the original rights violation: it’s still a stain on the nation’s self-image.

The significance of the original rights violation doesn’t lie in the impact it has on descendants who are presently living – like it’s arguably the case with the impact of slavery on currently living African Americans for instance. It’s significance lies in the impact on the whole of the nation. The rights violation took place in the past, but it didn’t end there. The victims are dead, but the crime reverberates throughout time.

So what should we do? We obviously can’t compensate the victims. They’re gone. We can’t compensate the descendants because they don’t suffer like for instance the descendants of slaves suffer. What we can do to make things right is to acknowledge, to apologize, to memorialize etc. Otherwise, no amount of time will reduce the impact of the original rights violation.

Time erodes the rights violation

Case number 2 seems counterintuitive. How can the simple passage of time make things better? We’re not talking here about things getting better simply because people forget or have a lack of historical sensitivity. Something more profound can cause historical rights violations to dissipate or even disappear. Jeremy Waldron has given an interesting example of the way in which the passage of time diminishes or even removes the impact of an injustice.

Say tribe A steals a water hole from tribe B after it has used force to remove tribe B from the territory. That’s, in some sense, a violation of the property rights of tribe B. However, after some time, an ecological catastrophe occurs, resulting in the said water hole to become the only one in a vast area. It can be argued that tribe A now has a right to use the water hole, and to do so to the same extent as tribe B. If tribe A grants equal access to tribe B there is no longer an injustice.

Another example is a rights violation that has an impact on the descendants of the original victims, say slavery. These descendants continue to suffer from the harm done to their ancestors, as is arguably the case for slavery in the U.S. However, even if the descendants suffer, it’s likely that the suffering diminishes over time. We can assume that both suffering and the struggle against suffering are to some variable extent attributable to people’s own actions (or inactions) and to current events, and not entirely to historical events. So if we decide to pay restorations to descendants of the victims of historical rights violations because the consequences of these rights violations reverberate to some extent throughout time in the sense that they still harm people today, we should apply a so-called discount rate.

Time makes things worse

An example of case number 3 is resource depletion. If past (or current) generations squander(ed) all or a substantial part of the earth’s oil reserves, it is likely that their descendants will have a standard of living far below the minimum required by human rights, and that the standard of living will go down as time goes by.