Why do those words go together?
Society - and for once, I'm using this term universally - teaches that, if you committed a crime, you should be punished.
But in some societies, we have an insanity defense. If you had a brain condition so that you had no - here it's a little vague - consciousness, or moral sense, or free will, or, well, something - then it would be cruel to punish you for your crime. Instead of going to prison, you should be placed somewhere where you can't hurt anybody, where professional physicians and counselors can study your case and try to reform you so that you can rejoin society.
Wait - so that isn't what prison is for?
No. Prison is to punish people. Is it any wonder that prison doesn't reform people, when we don't want it to reform them? Most people would be upset if prisoners could go in on Friday, and emerge, rehabilitated, on Sunday. When people say, "It would be cruel to punish people who aren't responsible for their actions", they are implicitly saying, "Prison is necessarily cruel; and that's good, because we should be cruel to criminals who are responsible for their actions."
But the more we learn about psychology and neuroscience, the further responsibility recedes into the distance.
Outcome-based justice argues that we should give up playing the blame game, because neuroscience keeps finding more and more proofs that things are "not our fault". Instead, we should write laws that deter crime.
You might think this is what we already try to do. But it isn't! Witness this confused article from the Brookings Institute, Cognitive Neuroscience and the Future of Punishment by . Snead objects to outcome-based justice. He summarized all of the arguments for it, yet managed to completely miss their point, concluding where he started from, saying that outcome-based justice is obviously bad because it could lead to being cruel to people who didn't deserve it. (Instead of only being cruel to the people who do deserve it, which is obviously what we want to do.)
Snead understands that outcome-based justice deters crime:
Many features of the criminal justice system that are frequently criticized as draconian and inhumane are, in fact, motivated by a purely consequentialist crime-control rationale. Such measures include laws that authorize life sentences for recidivists (e.g., “three strikes” laws), laws that reduce the age at which offenders can be tried as adults, laws that punish gang membership, laws that require the registration of sex offenders, laws that dramatically increase sentences by virtue of past history, and, most paradigmatically, laws that provide for the involuntary civil commitment of sexual offenders who show difficulty controlling their behavior.
You might expect that Snead goes on to explain why these laws are bad things. But he doesn't! He assumes we can all see that these are obviously bad things.
The Wrath of Kahneman describes a study which asked whether people punish others in order to deter crime, and concluded, No. People are doing something else.
One theory is that people are trying to be fair. Everyone should get the same chances; everyone should get the same punishment for the same crime. John Rawls argues this explicitly in Justice as Fairness: Justice should not be utilitarian, but should instead be fair.
I believe Rawls' view is also the popular view of what "justice" means. And, I will argue in a later post, it is part of a pattern showing a deep divide between two different ways of using the word "ethics".
ADDED: Constant made the point that, while one part of outcome-based justice is preventing future harm from the criminal on the dock, another part is deterring harm by other criminals. This latter part does not benefit from punishing criminals who cannot be deterred. Thus, to optimally punish both criminals who can and cannot be deterred, the law requires a concept of moral culpability, and should punish criminals who can't be deterred more lightly. This is a better origin story for the linking together of morality and free will than the just-so story I'd come up with, so I plan on stealing it for my next post. (SilasBarta may have been trying to make the same point, but I found his comments impenetrable.)
(This post is laying groundwork for two other posts that will go in different directions, neither of which concerns justice.)
All right then, let's look at what words Snead puts into the mouth of the judge, who he apparently takes to represent the advocates for outcome-based justice.
Surely the defendant's own future danger to society is not the only relevant question. A system of deterrence is a system that attempts to guarantee, ahead of time (it must do this is in order to deter crime) that if someone commits a crime, then he will be punished. The prospect of being punished will deter the would-be criminal. That's what deterrence is. In such a system, a person who goes ahead and commits a crime will be punished. It does not matter whether he himself will commit additional crimes after his initial crime. That's irrelevant to the deterrent mechanism. That person's own "future danger to others" is of no special interest.
Deterrence d... (read more)
That strikes me as confused. Blame just is an aspect of our already-existing, inborn deterrent system. Saying we shouldn't blame and instead deter, is like saying we shouldn't deter and instead deter. It doesn't make sense. Maybe what you want to say is that we should deter better. Okay, I can buy that. But it's just confusing to put it in a way that essentially reads, instead of deterring, let's deter.
My deep suspicion about this is that psychology and neuroscience really say no such thing. It is, rather, the interpretation of psychology and neuroscience by free will incompatibilists which says such a thing. Now that is perfectly predictable. Can anyone doubt that those who believe free will is incompatible with determinism will, as science uncovers more and more of the causal structure of behavior, conclude that there is less and less scope for f... (read more)
I suppose he wanted to say that we should make deterrence our ultimate goal and use blame instrumentally, instead of having blame as our terminal value with deterrence being only a consequence thereof, which is the way it basically works now.
Humans in general punish because we are built to enjoy properly punishing others, not just because we think it deters. Punishment is an adaptation we execute. When we execute this adaptation, it does indeed deter crime. And evolutionarily speaking (both genetically and culturally) that is its purpose.
This is of course true, but... I don't usually take part in karma debates, but 17 points for such a short and rather simple comment seems to indicate that the "adaptation executer vs. fitness maximiser" phrase serves as an applause light here. (I am not criticising or commenting on the parent comment itself.)
In this context I find it interesting that most of the reforms to eliminate "barbaric" punishments have not hugely limited cruelty to the condemned - but have made the punishment boring for observers and punishers. Our present day ambient ethics thinks enjoying punishing is bad - without thinking punishing is bad.
My understanding of prison is that, despite much talk about rehabilitation, it essentially serves the function of exile. When a person breaks the rules of the society, society forces em to leave. These days, just about all land belongs to one society or its neighbors, and it's bad form for one society to send its criminals to a neighboring society. Instead of exile, then, societies lock people up to keep them away from everything. People form a society and set up rules, so a person who violates those rules gives up eir position in the society and the right to participate freely in it, i.e. the right not to be imprisoned.
Putting all the (convicted) criminals together in one place, given the understanding that most of them will rejoin society at some point, is a pretty bad method of actually reducing crime. The typical prison environment is one which delays or even reverses an inmate's apparent moral development (see e.g. this study by Peter Scharf, a student of Lawrence Kohlberg), so likely it will actually make things worse. This has been demonstrated in studies (like this one), which showed recidivism at over 60% and rising in the U.S.
I do think that people are trying to be fair i... (read more)
The study concluded that people favor punishment that isn't optimal for deterring crime, but that doesn't necessarily mean their punishments aren't aimed at deterring crime; it could mean these people are aiming to deter crime, but they're just going about it the wrong way.
Upvoted for this sentence alone.
We punish because if we did not regard it as optimal to inflict disutility on those who game-theoretically defect, (a decision theory instantiated by) some people would not regard it as optimal to cooperate, and we would thus be in a worse position; and we cannot simultaneously be "such that we would punish", and reap all the benefits of subjunctive punishment, while not also punishing while in the branch that has a particular crime.
Note: this reason does not depend on any punishment, or even punishments in general, causing less disutility than not-punishing, in the technical sense of "cause" (which requires the effect to be either in the future, or, in timeless formalisms, a descendent of the minimal set [which includes the cause] in a Bayesian network that screens off knowledge about the effect). However, with an appropriate comparison to the counterfactual case, the punishers come out ahead.
(And yes, I'm neglecting the case of the exact limit of punishment for which this holds, and thus the issue of what it takes for a punishment to be regarded as excessive.)
The general pattern of "when people want to punish" coincides largely with what this reasoning gives, although internally it usually feels like some otherwise-ungrounded "deservedness of others of being treated badly" (see the Drescher quote in my article).
This is absolutely correct. Consider the following as an example to why a pure likelihood of recidivism system would be undesirable even from a utilitarian perspective:
If someone murders their spouse, and it's clear that they would never murder anyone who isn't their spouse, locking them up causes them to suffer and prevents no future crime. Indeed, it costs the state money in the form of their lost taxes and imprisonment costs. An injunction against ever marrying again would be the cheapest way to prevent them from committing another crime.
But if this were the punishment, how would that effect people's decisions to murder their spouses? Or commit other crimes they could prove were one-off events?
One reason we punish criminals is to deter private revenge, which tends to escalate into long-lasting feuds. This function isn't incompatible with rehabilitation in prison, though, teaching people life skills that will keep them out of trouble after release.
If people in your pre-crime condition would commit certain crimes regardless of people in your pre-crime condition generally being punished for committing such crimes, punishing people post-crime does not deter others in such a position from committing such crimes.
Harming anyone who injures is still retributive.
Prison may sometimes serve to rehabilitate or impr... (read more)
Hypothesis: Punishment is also a way of signaling whose interests are to be taken seriously.
This hypothesis was inspired by a radio interview (in other words, turning up a cite is inconvenient and not necessary to the argument) I heard with a woman who'd been raped by a guard when she was in jail. Rather unusually, there was physical evidence and enough people to take her seriously that he was convicted. However, it was defined as a lesser crime and he was imprisoned for only four months.
Punishment serves many purposes, but one of the most important ones is evolutionary. A long history of seeking out criminals and taking away their ability to reproduce is what caused humanity to evolve morality. Psychopathic personality traits, a strong correlate of crime, are heritable. If we stopped punishing then crime would become adaptive, and in a few tens of generations our ancestors would be significantly less moral than we are.
Under this view, whether insanity means punishment is more or less deserved depends on its underlying cause, but usually m... (read more)
Well, I can see that these are bad things, but what I can't see is what they have to do with outcome-based justice. These all exist because of political decisions, not impassioned consideration of their likely effects.
This is not exactly something society teaches you. It is inherent in the concept of "crime." With a few exceptions, a crime is a thing that is forbidden by law, and being forbidden by law means that it carries a punishment. If you aren't punished for it, it isn't a crime. If you shouldn't be punished for it, it shouldn't be a crime. This observation is more linguistic than social.
And, incidentally:... (read more)
Conversely, the idea that the only effective thing you can ever do to lower crime rates is punish criminals only makes sense if you define "punishment" to include anything that lowers crime rates.
Just to be concrete for a second: if stores S1 and S2 both have the same rate (R0) of shoplifting, and S1 implements a policy of prosecuting all shoplifters to the fullest extent of the law and its rate drops to R1, and S2 implements a policy of putting up signs everywhere with sad-looking cartoon characters with big eyes expressing various kinds of sadness over shoplifting and its rate drops to R2.
Are you asserting that:
...because S2's policy isn't punishment-based, it's not going to reduce the shoplifting rate, so R2 ~= R0?
...because S2's policy isn't punishment-based, it's not going to reduce the shoplifting rate as much as punishment does, so R2 > R1?
...we don't know whether S2's policy is punishment-based based on this information; if R2 <= R1 then perhaps it is?
...this example has nothing to do with what we're talking about?
There is certainly a powerful slippery slope argument here. The norm that ties well-defined punishments to specific deeds is a strong focal point. In such a situation, it's impossible to move away from this point in carefully measured steps in order to maximize some abstract metric. Once the system has moved away from it, there will be strong pres... (read more)
Punishment also has the effect of discouraging further crime, of course. A lot of discussion goes wrong by conflating this purpose with others.
ETA: Also, your second link is broken.
I for one wouldn't. What do you suppose is wrong with that - besides that it's counterfactual?
(I believe you're misstating Rawls' position on punishment; for instance he says "by enforcing a public system of penalties government removes the grounds for thinking that others are not complying with the rules", which strikes me as a consequentialist argument. I can't recall his arguing in ToJ that "everyone should get the same punishment for th... (read more)
I think you're wrong to focus on the financial incentives for crime. In reality, the only criminals who earn a lot of money are high-ranking bosses of organized crime and white-collar criminals in the business world, with a few very rare exceptions (like e.g. spectacular heists or super-high-skilled cat burglars). Ordinary criminals don't earn significantly more money than their legally employed peers coming from a similar social class, not even without adjustment for the associated risks -- and taking up crime expecting to become a big mafioso is about as realistic as taking up computer programming expecting to become the next Bill Gates (i.e. not impossible, but vanishingly unlikely for a typical entrant into the profession).
The key issue here, in my opinion, is the status one gains by engaging in crime versus legal work. For concrete people, this is primarily an artifact of the status relations in their own social group, rather than the society at large. In this regard, you are correct to observe that if crime pays, it pays locally -- but rather than the financial gain, the key issue is whether crime pays locally in terms of status gain in the potential criminal's community and social network.
Not sure if anyone's already posted this, but:
Relevant: For the law, neuroscience changes nothing and everything
SilasBarta has half the answer, which is that public punishment of criminal A is excellent for deterring law-abiding citizen B from committing crimes.
The second half of the answer is that most people believe in justice. Justice makes little sense from a Utililitarian perspective (except that public justice deters others), but it is a commonly held belief that bad deeds actually do deserve punishment regardless of the utilitarian function involved. The belief exists not only in most societies, but also among most intelligent animals (particularly primates). Now, a utilitarian may want to discard this evolutionary baggage, but to do so will be very politically difficult.
I think this is what people are complaining about when they complain that "status" is being used isomorphically to "magic".
While Eugine's comment could benefit from some clarification and refinement, I think you're wrong to dismiss it as worthless. The status (or whatever similar term you want to use) assigned to enjoyment of sex versus enjoyment of punishment is definitely a culture-specific thing. (I can easily imagine a culture that, unlike ours, extols sexual asceticism along with righteous cruelty, and some historical examples aren't too far off.) This certainly influences the choice of values that people would like to see perpetuated.
The April 2010 Scientific American has an article by Michael Gazzaniga (a famous cognitive neuroscientist), "Neuroscience in the courtroom", partly about this issue. He writes:
This is what we see most commonly in debate on the issue: Not a reasoned defense of any of the va... (read more)