The Economist’s Democracy in America blog picks up on the argument about retribution as a legitimate goal of punishment, making the key point that retributive fury not satisfied by the state issues not only in private vengeance but in racist/nativist politics. That Rome should have a neo-fascist mayor is appalling, but it’s not incomprehensible.
The blogger also mentions a successful application of the dynamic-concentration principle to parenting, working through a mechanism I’d never thought of: for children, being singled out for punishment can be worse than the punishment itself.
I don’t know whether the rise of neo-fascist parties or anti-immigrant sentiment is attributable to unsatisfied retributive demands, except in a very elastic sense of “retribution.” Crime can’t help, but I suspect other things may be more important.
This seems confused.
On the one hand you say “The notion that the community owes it to the victim
(and the victim’s family and neighbors) to punish the perpetrator … shocks the consciences of
many law professors and moral philosophers, but it strikes me as almost self-evidently true”
That seems like taking an absolute moral position (which always makes me
suspicious) that the perpetrator should be punished whether or not it
does any good ? Can “the community” really “owe” anything to the victim’s neighbors ?
What about the Polanski case, where the victim has said no further punishment
is appropriate ?
On the other hand you say “when punishment expresses outrage in a way that changes attitudes
about the wrongfulness of the underlying act—as more severe punishment of drunk driving and
domestic violence surely has done—it has a crime-control effect not reducible to incapacitation
and deterrence.”
But this then provides an indirect, but plausible, utilitarian justification for
punishment. Though I’m not sure that it’s anything more than a subtle form of
deterrence. Taking your own example of drunk-driving, it seems to me as though
severe punishments have not actually changed people’s attitudes to the point where
they don’t *want* to go out and have a couple of beers and drive home; it’s
just that they more fully understand both the inherent danger and the risk of
severe punishment, so they do it less (though of course still too much).
I argued these issues at length in the Polanski thread: in that case it seems rather
clear that punishment *now* cannot be justified on the grounds of satisfying
the victim (she doesn’t want it), incapacitating the criminal (he’s 76 now,
and after 20 years as a respectable married man hardly seems likely to repeat
the offense), or deterring others (not clear whether many rapists are
engaged in a rational decision-making process influenced by thoughts of
possible punishment). Nor even “equal justice” (a study of cases in RI
suggested that 80% of convictions for statutory rape alone did not result
in jail time).
Personally, I’m all for incapacitation and deterrence. But pure retribution
seems both pointless and unhelpful as a principle (how can you ever tell
what level of punishment is appropriate if there’s no quantifiable positive
result ?).
The confusion arises because there are two purposes to be served: crime prevention and the vindication of the victim. The crime prevention purpose is served both by deterrence and incapacitation and by the reinforcement of norms. There’s a difference between deterrence and norm reinforcement; one works thorough the potential offender’s fear of punishment, the other through his opinion about the wrongfulness of the contemplated act.
The entire argument is within the real of consequential reasoning. I claim that the victim and the victim’s community are actually better off when the victimizer is punished, enjoying improved self-esteem and social esteem.
I also claim that people denied vindication through the political and legal process will tend to act either to achieve the same end through private revenge or to change the political and legal processes through racist and nativist politics. Those, too, are actual bad consequences.
Of course racism and nativism aren’t “caused” by crime. But the crime issue is both a motive and a tool of racist and nativist activity.
The entire argument is within the real of consequential reasoning. I claim that the victim and the victim’s community are actually better off when the victimizer is punished, enjoying improved self-esteem and social esteem.
If I understand, retribution (& desert) don’t only enter the argument through the objective function - e.g., the victim’s & community’s taste for recognition of the wrong done them. They also figure in the side constraints, which can bind independently of consequences.
“I claim that the victim and the victim’s community are actually better off when
the victimizer is punished, enjoying improved self-esteem and social esteem.”
And I’ll accept that there’s usually a benefit to the victim from seeing
their status acknowledged and seeing the criminal punished, especially
if the punishment is timely and appropriate.
Where I feel the argument gets nebulous is in suggesting that “the victim’s community”
can benefit. That raises many questions. How do we define such a community ?
How do we know what benefits them ? How do we quantify the benefit ?
Most seriously, how do we determine what degree of punishment is optimal
to give that nebulous benefit to that nebulous “community”, weighed against
the very real and concrete costs of punishment to the criminal, his
family, and the punishing authority (jail time costs money) ?
The victim might be a positive contributor to society in his non-criminal
activities: locking up Michael Vick was justifiable, but it surely harmed
the owners and fans of the Atlanta Falcons.
The Polanski case seems particularly awkward from this point of view
because the victim has explicitly said that she doesn’t want further
punishment. Indeed, in dredging up a painful episode from decades
ago and drawing public attention to it, there is substantial new harm
to the victim, rather than any benefit.
What is perhaps most troubling is that if we accept the principle of
punishing a criminal to make the “community” feel better, then there’s
no obvious bright line to determine what is reasonable and appropriate.
If it’s about making the “community” feel good, then the majority
can stretch that as far as they like and pass incredibly stupid
and unfair laws to impose severe punishments on the kind of criminals
they don’t like. And indeed, that seems to be just about what happens
in the USA, as with the mandatory sentences for crack cocaine
possession. Pushing the argument further, doubtless in the pre-war
South the white community felt that lynching was an appropriate and
necessary response to certain kinds of behavior by blacks.
I don’t know the answers: it just seems that a purely utilitarian
approach would at least force us to stay honest about doing some
kind of cost-benefit analysis, and once you stray from that principle
all kinds of bad things can - and do - happen.
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This post was mentioned on Twitter by MarkARKleiman: RBC: Dynamic parenting? http://bit.ly/AiHbp…
Funny, I think racism and nativism are more fueled by having a grossly biased criminal justice destroy minority communities with remorseless removal of adult males into a huge prison gulag than by instances of insufficiently punitive sanctions. The criminal justice system takes facially neutral laws and applies them in a racially and economically biased fashion at every step of the process in order to produce the wildly skewed prison populations, which have the effect of reinforcing the original racist beliefs.
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“as more severe punishment of drunk driving and
domestic violence surely has done” Surely? I asked Mark whether there was actual evidence of this (see comments on the original thread), and he answered that he based his assertion on a principle (cognitive dissonance). Principles aren’t evidence. He added that establishing causality (legislation changing attitudes, or is it the other way round?)was difficult.
As for lack of retribution, the Economist blogger says, “it’s just a fact that when people feel that the government is not doing justice to criminals, they do something about it themselves.” Another assertion of fact where I would ask for good evidence. It’s equally plausible that what drives the lynch mob mentality is not so much the government’s doing a bad job on retribution but its doing a bad job on crime control. In the US, support for the death penalty tracks with crime rates, not with the lack of frequency of its use. When crime goes down, support for the death penalty goes down, even though more murderers may be escaping this ultimate retribution. When crime goes up, more people support the death penalty, and an increase in executions does little to slake the thirst for retribution.
Even the Economist blogger recognizes this. He slides quickly from talking about retribution to talking about crime but without acknowledging that the two are different.
Good points, Jay. I was thinking along similar lines last night. To start with, it’s
probably hard enough to prove that drunk-driving has decreased in frequency at all
(as opposed to occurring with the same frequency, but being detected and reported
in different ways). Then you have a host of demographic and economic changes which
might plausibly have an effect: with great income inequality, the poor can’t afford
cars and so won’t be driving; the rich can afford to take a taxi home. Then there are
simpler direct effects: if you enforce licensing laws strictly and keep the sellers
of alcohol on good behavior, they won’t serve alcohol to customers who are already
dangerously drunk. Less directly, regulation of alcohol advertising may have had
an effect. And then there’s the strong possibility in a democratic society that
changes in laws and punishments may be the *result* of changes in public attitudes,
rather than the *cause* of such changes.
And after all, it isn’t as though anyone could claim that drunk-driving or domestic
violence have gone away completely. Both are still real and widespread problems.
I like the approach of thinking analytically and creatively about how our
criminal justice system should work to achieve desirable consequences. And
speculation about psychological and sociological effects can generate interesting
hypotheses. But then it seems you need a good deal of rigor in figuring out
whether those hypotheses hold true in the complexity of the real world.
And just about nothing is “almost self-evidently true”.