There are four justifications for putting criminals in prison: keeping society safe from those who might transgress again (sequestration); using prisons or hospitals as a place to reform criminals so they’re no longer a danger when released (reformation); serving to keep others from committing crimes lest they face the same fate (deterrence); and simple revenge: punishing someone who transgresses because they made the wrong choice and deserves to be punished for that (retribution).
In the case of the death penalty or life in prison without parole—two possibilities that face James Holmes, who killed 12 and wounded 70 in a Colorado movie-theater shooting two years ago—only one of these reasons is justified: sequestration,which means no execution. The death penalty has been shown to have no deterrent effect; and retribution, at least for most of us, is not a rational motivation but an emotional reaction. If the jury decides to execute Holmes, reformation is off the table as well.
And, as I’ve mentioned before, two arguments against the death penalty are that imposing it is more costly and time-consuming than imposing life in prison without parole (the appeals in the US system last for years, involving masses of lawyers), and that mistakes are made more often than we realize when executing criminals. If an innocent person is put to death, there’s no way to undo the damage.
For someone like Holmes who commits such a heinous crime, and faces the possibilities of either life in prison without parole or execution (the jury will decide this week), the only reason to choose execution over other penalties is retribution: the idea that someone who chooses to do something so evil deserves to be killed.
But the U.S. gives some murderers a break: if the judge or jury doesn’t think you had a choice, you get sent to a hospital instead of a prison (and remember, those convicted of murder face horrible circumstances in US jails). The lack of choice is determined by whether the court deems a convicted defendant legally insane, and thus presumably unable to have controlled his or her actions. But often that’s not enough. In the case of Holmes, who’s been diagnosed by the examining psychiatrists as schizophrenic, a determination of “legal insanity” (it varies state by state) requires not just extreme mental illness, but “incapability of distinguishing right from wrong.”
Well, it’s possible to have a severe mental illness and be driven by that illness to commit crimes, even if you do know that society considers them “wrong”—or even if the criminal considers them “wrong”. And so, as psychiatrist Dr. Sally Satel argues in the Washington Post, Holmes should not be executed because he is neither “genuinely criminally responsible” nor a “moral agent,” for, given his condition, he could not control his behavior:
Unfortunately, the insanity defense. . . makes little distinction between ordinary motives for murder — revenge, hatred, greed, or elimination of rivals — and motives that spring from twisted assumptions produced by mental illness. Yet how can anyone suffering from such assumptions be genuinely criminally responsible?
. . . After all, the basic requirement for blame is whether the perpetrator is a moral agent. And a defendant cannot properly be considered a moral agent if his acts were the products of cognitive (e.g., infancy, dementia, or mental derangement) or volitional (e.g., gun to the head) circumstances that were not under the defendant’s control.
. . . Indeed, the basic logic behind the insanity defense is that the law should not punish people who are mentally incapable of controlling their behavior.
Her solution?
In my view, the best solution is for states to broaden the definition of insanity to cover defendants whose crimes flowed directly from delusional thinking, extreme paranoia, or command hallucinations. Such defendants should be confined and treated in mental hospitals, not punished by the criminal justice system. To be clear, murderers would need to show a severe deficit in the ability to reason, not merely a record of mental illness. Depression, anxiety, post-traumatic stress disorder, or drug-induced paranoia, for example, should not be exculpatory.
The American Bar Association largely agrees:
A 2006 report from an American Bar Association panel sensibly proposed that defendants “should not be executed or sentenced to death if, at the time of the crime, they had a severe mental disease that significantly impaired their capacity to (a) appreciate the nature, consequences and wrongfulness of their conduct, (b) exercise rational judgment in relation to conduct, or (c) conform their conduct to the requirements of the law.”
And I agree with both of these solutions. But they don’t go nearly far enough.
If you’re a determinist, and feel that nobody has a real choice about how to behave at a given moment—that is, in a given circumstance at a given moment, nobody can behave other than as he did—then appreciation of the distinction between right and wrong is irrelevant in determining whether someone should be executed. It’s relevant in deciding how the criminal should be treated after conviction, but—given your genetic endowment and environmental influences—if your behavior was absolutely mandated by the configuration and interaction of your neurons, what justification is there for partly exculpating those whose behaviors were driven by mental illness while at the same time killing or imprisoning those whose behaviors were driven by inexorable mental processes?
What I’m saying is that, given determinism, there is no rationale for executing anyone. With respect to crime, mental illness is in principle no different from mental compulsion. (The deterrent effect of execution is not relevant, because there isn’t one.)
Of course we should treat criminals with a serious mental illness differently from those who aren’t as abnormal. Treatments should be tailored to the individual’s mentality, background, and health, as well as to the likelihood of recidivism. Someone who remains a danger to society because of intractable mental illness should be sequestered longer or permanently, exactly as someone who is a danger because of intractable sociopathy or murderous impulses, regardless of whether they know right from wrong.
But once a crime is done, the ultimate goal (beyond sequestration) should be reformation, for many criminals can become productive members of society, and it seems wrong to torture them after they’ve reached that point. If they can’t be reformed, keep them sequestered. (That, of course, will be a judgment call, but it’s one that can at least be studied empirically.)
I’ve previously written about how the prison system of Norway works. It’s a system that should be taken seriously by American criminologists. A report from Business Insider, which I discussed earlier, gives some details (Norway, like nearly all Western countries, does not execute criminals). Not only are Norway’s prisons far more comfortable and humane than in the U.S. (they’re like dormitories, through prisoners aren’t allowed to leave), but the sentencing is considerably different from methods used in America:
The maximum life sentence in Norway shows just how serious the country is about its unique approach. With few exceptions (for genocide and war crimes mostly), judges can only sentence criminals to a maximum of 21 years. At the end of the initial term, however, five-year increments can be added onto to the prisoner’s sentence every five years, indefinitely, if the system determines he or she isn’t rehabilitated.That’s why Norwegian extremist Anders Behring Breivik, who killed 77 people in a bombing and mass shooting, was only sentenced to 21 years. Most of the outrage and incredulity over that sentence, however, came from the US.
Overall, Norwegians, even some parents who lost children in the attack, seemed satisfied with the sentence, The New York Times reported. Still, Breivik’s sentence, as is, put him behind bars for less than 100 days for every life he took, as The Atlantic noted. On the other hand, if the system doesn’t determine Breivik “rehabilitated,” he could stay in prison forever.
That seems quite enlightened to me. Most important, though, is that it works: the rate of recidivism in Norway is considerably lower than in the U.S.
In Norway, fewer than 4,000 of the country’s 5 million people were behind bars as of August 2014.
That makes Norway’s incarceration rate just 75 per 100,000 people, compared to 707 people for every 100,000 people in the US.
On top of that, when criminals in Norway leave prison, they stay out. It has one of the lowest recidivism rates in the world at 20%. The US has one of the highest: 76.6% of prisoners are re-arrested within five years.
We should deep-six the “knowing right from wrong” criterion, as it has absolutely nothing to do with whether a person could have refrained from crimes already committed. What is important is understanding why somebody transgressed the norms of society, to figure out the best way to prevent that from happening again and, if possible, to render the criminal a law-abiding citizen.
In the end, I think it’s unproductive to worry, as does Satel, whether a criminal is “genuinely criminally responsible” or a “moral agent.” Those are nebulous and even philosophical categories that seems incapable of an objective resolution. We should worry about results, not semantics, and realize that while every criminal is responsible for his deed, in the sense that he did it, none of them had a choice about whether to do it. My hope is that this profound realization can render America’s prison system, and its results, more like Norway’s.
The article is mainly US centric and doesn’t mention whether the terrorists, who have been brain-washed by an external entity and are trained to commit crime in foreign countries.
Should the argument of determinism be valid for the terrorists? Can terrorists be trained how to assimilate in the society and avoid religious brain-washing?
I am making this argument in light of recent controversy surrounding hanging of a terrorist (Yakub Memon) in India. While the plea for his clemency from “leftists” members of Indian society seemed more politically motivated, did Memon’s hanging serve any purpose at large? It will definitely not deter future terrorists – whether home grown or across-the-border. And worse, Memon was the facilitator of arms and money. The real perpetrators are still at large and may never be punished.
While a majority of Indians still want retribution and are in favour of execution (citing increased burden on tax payers and a constant security risk), there are people who feel that terrorists should not be executed and must spend their entire life in jail.
A lot of this has also to do with Indian legal system, but that discussion would be out of the realm of this discussion.
I was thinking along the same terms. Can Satel’s definition of mental illness be applied to ISIS? Do they all belong in mental institutes? Do we want them rehabilitated?
They clearly can be rehabilitated – just look at Maajid Nawaz for example. Hirsi Ali has also said she had some pretty extreme views in line with the beliefs of terrorists when she was younger.
What the death sentence won’t do is dissuade anyone who believes in a cause, especially those who, like Islamist extremists, belong to death cults that teach that the next life is more important than this one.
Maajid Nawaz has a vastly higher IQ than the rest of muslims, assuming that because he can be rehabilitated that others can is probably a mistake. I don’t think that we know the answer to this question, but it pertains a lot to the other question atheists often ask, is it possible to de-convert some christians?
Sorry if this sounded wrong or racist. im not saying it as some sort of racist thing, just that it is obvious that Nawaz is more intelligent than average, not that any race has different levels of intelligence.
An excellent essay, Jerry! And to continue the train of thought, we really need to discover and address the causes of crime. And for that we need to use science, not knee-jerk emotional reactions (strongly reinforced by dogmatic religious thinking, I am quite certain).
I do volunteer work in a prison, and am pen-pals with a number of men serving long sentences, mostly for sex-related crimes. Of the cases I know about, every one of these guys had a horrific childhood of physical and sexual abuse. If it hadn’t been for that, I am quite confident they would not have committed their crimes. As it is, they were victimized as children and grew up to victimize others — and the best we seem to be able to do is to punish them for it, after the fact. They will all be out in society again some day — what are the chances that they will re-offend? 76%, apparently. The American justice system is barely improved over the Code of Hammurabi: if you hurt me, I’ll hurt you back. But it only serves to multiply and perpetuate hurt. It obviously doesn’t work.
Something that struck me that I have not thought about is the recidivism issue and the situatedness of it. Of course life circumstances have a big impact on whether one is a criminal in the first place. People who come from massive wealth are not generally committing burglaries, for instance.
If we take two individuals who have committed similar crimes and have generally the same dispositions and thought processes, the situatedness of their external life may have a major impact on the chance that they will turn back to crime. Say we have two individuals who have similar attitudes and norm violating tendencies, that is, generally they seem like very similar kinds of people. If one is eventually released back into society into family and friends who are going to provide material, mental, and social support, and the other is released back into society relatively on their own, then surely that has a major impact on their chances of turning back to whatever criminal problems they had before.
I’m sure judges and parole boards have dealt with these thoughts for a long time, but it is interesting that we have to judge people’s future actions not solely on “who they are.” To one criminal we have to say, “even though we let this similar person out a year earlier than you that has nothing to strictly do with the kind of person and qualities that you as an individual have but instead has to do with the wider social world that impacts your recidivism possibilities.”
I think that little fair play capuchin monkey in all of us would feel a bit aggrieved about such stupidities. Probably take to throwing our food back at that judge.
The U.S. has very very bad statistics for a western country, surely they must be doing something wrong. It’s also the richest and most powerful country in the world, so they also must be doing something right.
Maybe there is a connection.
I agree that the US is the most powerful country in the world, but to assume that means that’s because they’re the best at everything (not that I’m saying that’s what you’re doing) is not correct imo.
All the most successful countries are secular democracies that place a high value on free speech and equality before the law. The religiosity and high incarceration rate of the US are both well outside the norm of this group of countries.
I sometimes wonder if Norway, Sweden, Denmark, or New Zealand was the size of the United States but retained all their current policies, what the world would be like. Whether that’s possible is another question. The main reason the US is so powerful imo is simply size coupled with being an open democracy. It got rich in the 20th century while Europe was ravaged by war.
Not criticizing the US – there’s a whole lot more to it of course – just making a general comment.
I personally would welcome it if the U.S. did become more Norwegian. (Except for the whale-hunt).
You could also have pointed out that capital punishment serves as an incentive to murder. Why do some people race motorcycles or climb sheer rock faces or jump out of airplanes? It’s because, for some people, actions that risk ones own life are exciting. Ask anyone who does these things and they will tell you that these things are the greatest concentrators of thought and feeling. Samuel Johnson (I believe) said that it concentrates the mind most wonderfully to know you are to be hanged in a fortnight. Imagine the thrill of knowing you could die any second. Thats a rush.
There was a twelve year old girl in Florida who never got any older because Ted Bundy found out that that state had re-instated the death penalty so he went there to increase the size of the adrenaline hit he got. It’s not a co-incidence that states with the death penalty have the highest murder rates.
I don’t believe in an afterlife so the primitive retributive part of my mind is still angry that Timothy McVeigh killed two hundred and sixty plus innocent people–then the government let the smirking bastard off with only three years in jail.
Another reason a death penalty is an incentive is that once you’ve done something you know you’ll get it for, there’s no incentive to stop killing as you flee from law enforcement etc. One murder or ten – you can only be killed once.
And if the attitude of the average jury is towards retribution, the feeling of alienation from society is much greater.
And I’ve made several comments now without actually saying it – I agree with everything Jerry said too.
That’s true, but if the alternative is simply life in prison without possibility of parole then the same reasoning applies.
I completely agree that we should worry about results, not semantics. But with all due respect, insisting that “none of them had a choice” seems a lot like worrying about semantics, not results. As far as I’m aware, the Norwegian system achieves its good results without any philosophical commitment to determinism or denial of choice.
Of course one can support a more humane treatment of prisoners without being a hard-determinist. However hard-determinism can be an antidote to our reactive attitudes.
Maybe that the Norwegian deterministic mindset is a result of the 76.3% of the population who call themselves Evangelical Lutheran. Luther was a determinist if I’m not mistaken.
As I understand it the Norwegian prisons offer jobs skills training, substance abuse treatment, counseling, and a decent living environment. On the outside there is also a safety net that ensures basic food, housing, and health care. The result seems to be that people come out of prison in better condition to succeed than when they went in. How is that not deterministic?
Does offering those services and support systems constitute a philosophical commitment to the incompatibilist idea that choice is an illusion and we are not in control of our actions? I don’t think it does.
In fact I’d bet good money that Norwegian counseling services include advice to former inmates to exercise self-control, make smart choices, and resist the urge to fall back into old rote patterns of behavior.
Fantastic post. I hope it’s read by many.
According to the Guardian, police in the U.S. killed more people in the first 24 days of 2015 than police in the UK have in the last 24 years. 59-55.
In a recent interview, David Simon, executive producer of the Wire and author of Homicide: A Year on the Killing Streets, stated that the clearance rate for homicides in Baltimore now stands at 35%. That means 65% of the time no suspect is ever identified and charged in a homicide.
And, of course, Jerry has now written two essays detailing the insanity and inefficacy of the prison system and our sentencing laws.
Is there any part of the criminal justice system that isn’t desperately in need of reform?
For the benefit of those commenters and followers of this blog who live somewhere other then in the US, I will quote the former Michigan Supreme Court justice John Voelker, who once said that the criminal justice system in the US is best described as: lock ’em up like a mad dog and keep ’em locked up.
But Voelker forgot (or maybe not) that mad dogs don’t get locked up. They get shot down in the street by the Atticus Finches, who turn out to be racist (to everyone’s surprise).
As in most major problems facing US society, privatization is the prime suspect. Until those in power curtail their insane greed and open their eyes to what privatization does to a society, I’m afraid the downward spiral will continue.
Sort of off topic, but just another aspect of contemporary American society that caught my attention: HitchBOT. A robot created by Canadian researchers to hitch hike across Canada and other countries, relying solely on humans. It was basically a social experiment and it went well, travelling from Vancouver B.C. to Nova Scotia, all through Norway and Germany (and I think some other European countries). It was a huge success. Then they decided to have him travel from Boston to SanFrancisco USA. Well after a week or so in the US, someone in Pittsburgh beheaded the robot. IMO, this story says a lot about the current state of the American states. Keep it classy America!
The link failed:
https://en.wikipedia.org/wiki/HitchBOT
And great post Jerry, spot on!
I thought you were talking about the other Hitch for a moment. A robot that appears to smoke and drink without interruption, never has to dine or sleep alone, and is generally infallible except that it falls for a big lie once or twice in its (too short) lifespan.
Nice essay. I agree with you. I do have a question about recidivism. Why just 21 years for Breivik? What if the “system” judges him to be rehabilitated after 21 years, releases him, and he reoffends by killing 22 people? Bad call? It seems to me that numbers matter (hence the genocide provision for life imprisonment) because of the extreme consequences of some murderers’ actions whether they’re responsible or not.
Part of me supports life-in-prison when murder involves many innocents (i.e. not a “crime of passion” which is typically one person familiar to the perpetrator). 77 dead from one guy? Would you want him living in your neighborhood assuming he was rehabilitated?
Another question: Norway’s 4,000 prisoners out of 5,000,000 (0.08%) strikes me as awfully low given psychopathy incidence is thought to be around 1%.
I agree that numbers matter, but I think what’s more important is the number of separate decisions to kill rather than the number of people killed in a single killing spree.
If you compare two people who set off bombs, and one bomb kills twice as many people, I don’t think it follows that he’s twice as incorrigible. Even comparing two people who committed mass shootings where one managed to kill shoot twice as many people, I don’t think it shows that he’s more likely to kill again. Once you’re committed to a mass shooting for impersonal reasons, you just shoot until you can’t shoot any more, it seems.
But if somebody commits multiple attempts at mass murder even if they only manage to kill one person, like the guy who attacked the gay pride parades in Israel, then it certainly does make them seem more likely to do it again.
That said, you could argue that even if a criminal isn’t any more likely to reoffend, demonstrating greater effectiveness in their crimes still makes them a bigger threat to society.
How about this. If you are guilty of killing 3 or more people in a single hail of bullets or individually in three different locations, it’s automatic life in prison unless there are mitigating circumstances?
Here’s my logic: the risk of releasing 10 rehabilitated murderers after say 20 years (all of whom murdered 3+ people) might be that one of them repeat offends and murders three more innocent people? Why do the rights of 10 multi-murderers to be released trump the rights of three innocent people to remain alive? To hell with multi-murderers and their unlucky brain wiring. If spending the rest of their lives in prison seems like a harsh response for the crimes of the guilty, I’d say robbing numerous innocent people (and their loved ones) of their entire life altogether is harsher still. Release of murderers who aren’t rehabilitated is akin to capital punishment of innocent citizens, no?
Just some food for thought. The U.S. should go back and take a look at their first 10 Amendments, those Bill of Rights that everyone thinks so damned important. So important they still can’t get that second one right.
The sixth Amendment makes reference to a speedy trial and the eighth Amendment talks of no excessive bail. The modern judicial system operates as if these two Amendments did not exist. The American system throws people into jail by the thousands and establishes a price to get out (bail) and then walks away. Many people cannot make the bail and so they sit. Worse yet, they tell the lawyer (public defender) who has no time for them they want out of jail. To get this done they plea bargain and live with the results the rest of their lives. They never make it to that speedy trial but they spend a lot of time in jail.
I should also add that treatment for mental problems is nearly a thing of the past. All the mental hospitals are being shut down for lack of funds and the mentally ill are either on the street or inside the prison system.
Though possibly less important, they also seem to ignore the 7th Amendment, which guarantees the right to a jury trial in civil cases (when the amount in question exceeds 20 dollars). At least, it has been interpreted as only applying to the federal government and not the states (although almost all prosecutions are done by state governments).
I agree wholeheartedly with this post.
However there are a few things to consider, just about what the cause of the differences in recidivism rates between the us and Norway. It may be that Norway’s penal system is more effective than the US and that is the cause of lower recidivism rates, or it may be other societal factors. I suspect it is both and that Norway’s system is likely a large cause, but not the entire cause of lower recidivism. Norway, as far as I know has a much better educational system than the US, has a higher average IQ than the US and has a much better social support network than the US. These things themselves would predict lesser recidivism in Norway than the US, and so a proper experiment would have to control at least partly for those effects to get at the effect that Norway’s system is having.
None of this is me saying I don’t think Norway’s system is working, I suspect it is. I’m just saying it would be good to isolate the factors that most contribute to lower recidivism and crime. Better to fix educational systems I think if they decrease crime and recidivism at equal rates, than to fix jails, since education has many beneficial knock on effects that criminal justice reform would not have.
In another incident that shocks American sensibilities, a 17 year-old in Norway lured a 12 year-old girl to his house, beat her bloody, and raped her. He was punished with community service. Even the prosecutor was satisfied with the sentence.
For a moment I felt it was crazy, but then I thought “You know, maybe we should give this a try. In America we have no problem destroying the lives of criminals, but as a result they’re practically forced into a permanent cycle of crime.” But then, given how much more effective Norway’s prison system is, I still feel a Norwegian-style prison sentence would have been more appropriate than mere community service…
The death penalty is a bad idea, and vengeance needs to be restrained not enshrined, but for reasons that have nothing to do with determinism. Mark me down as one determinist who acknowledges that most adult humans at most times do have choices about what they do.
The insanity defense in the US is basically well structured, or was, until reactionaries started inserting a “guilty but insane” category to water it down. The “knowing right from wrong” criterion, in particular, needs to stay, precisely because those who don’t know right from wrong cannot be deterred by the fact that their acts are prohibited.
Just as a note that others would not know…
Over in Nebraska they recently voted against the death penalty in the state legislature. The governor, a death penalty guy and good catholic is putting up money along with his rich daddy, to try and turn this around and bring the death penalty back. The guy’s name, Gov. Ricketts.
I recently finished “Just Mercy” by Brian Stevenson about the capital and life without parole aspects of American prisons. He is an attorney who has made a career of helping people who have been wrongly convicted and sentenced to death. The systemic problems are numerous. A most compelling book.
I tend to be more pragmatic about this. In cases where there is absolutely no doubt about the identity of the killer and the crime was deliberately premeditated murder (i.e. not just ‘a fight started and one guy hit his head and died’), then I don’t really care if the killer does get executed.
BUT, given the woeful record of wrongful convictions, there is absolutely no way that anyone should be executed if there is the slightest doubt as to the killer’s identity.
cr
What about the woeful record of racially biased sentencing? Isn’t that sufficient reason to care who gets executed?
I agree that’s a concern. And I know that there’s a higher probability of blacks being wrongly convicted than whites, or more severely sentenced for the same crime.
To me, the ultimate horror is when an innocent person is executed. Since that is more likely to happen to a black person, my concern sort of incorporates your point, I think.
If a black person is facing the death penalty where a white would not do so, I agree that is entirely wrong.
cr
I think we should recognise the Death Penalty for what it is Revenge,pure and simple, Studies have shown that it is in no way a Deterrent, because at the moment of killing someone the Killer can’t be in his right mind or he wouldn’t do it, Pyschopaths are by definition Insane , so for an ordinary person to kill the urge has got to be uncontrollable or a thoughtless reaction to some percieved wrong.
In any case there are far too many Judicial Murders of innocent People to continue with the Practice.
“….retribution for most of us, is not a rational motivation but an emotional reaction”
I would totally agree with this point – that retribution has its basis in an emotional reaction to a crime. But does the fact that something is emotionally based mean that punishing the perpetrator partly as a means of retribution has no validity (no justifiable value) whatsoever? Consider the case of someone who has had partner, child, or parent brutally murdered – isn’t it the case, time and time again, that we see such individuals calling for “appropriate penalties” being applied to the perpetrator – that closure can never occur until this happens. When penalties are seen to be “too light” we see these injured parties incredibly distressed at the “injustice” of it all. Now, is it really right that the perpetrator has broken some fundamental moral imperative (in committing murder, violent rape, etc. etc.) and then the victims closest bereaved relatives further punished by not at least getting the “emotional release” of seeing justice done. It seems to me that retribution as an emotion is built deeply into our human nature, whether we like it or not. Being sympathetic to the perpetrator who breached all norms of moral behaviour, and ignoring the further pain this causes to the bereaved seems somehow perverse.
Punishment of course should not be brutally inhumane – but it should at least be just for the victim too.
The desire for retribution may be built into our nature, but that doesn’t make it a good thing that we should cater to. That’s how feuds and gang wars get started. Justice should be about ending the cycle of violence, not perpetuating it.
I also don’t buy the notion that victims’ families cannot “move on” or “have closure” unless they see the bad guy fry. In my view this is an outrageous scam dreamed up by ambitious prosecutors to justify high-profile death-penalty cases. Executing people as a form of emotional therapy for bereaved relatives is simply barbaric. Let the state take some of the money it now spends on death-penalty appeals and spend it on grief counseling for families instead. That would be a much more humane and productive use of resources.
I absolutely agree with you there. The justice system should be about dispensing justice (punishment, deterrence, rehabilitation, whatever) impartially, not satisfying the feelings of the deceased’s family. Should a killer get a lighter sentence for killing someone living alone with no known relatives, than for killing someone with a big (and vociferous) family? I don’t think so.
Nor (and this is emphatic) should someone be convicted on shaky evidence just because “the family needs closure” (and the police want to tick this one off their books).
cr
(That comment was against the backgound of NZ, which does not have the death penalty. Obviously it applies more strongly in states that do.)
cr
“The desire for retribution may be built into our nature, but that doesn’t make it a good thing that we should cater to. That’s how feuds and gang wars get started….”
This is the aloof and unsympathetic stance of someone NOT directly suffering any hurt whatsoever THEMSELVES resulting from the particular crime and who enjoys the “moral purity” therefore of not seeking any retribution associated with the crime’s punishment. In other words it is the stance of someone willing to see someone associated with the victim, or the victim himself suffer further, rather than see the criminal suffer any punishment that smacks of retribution. I would say that this particular position actually exhibits a highly questionable morality.
As for “feuds” I do not believe it is right for anyone to take justice into their own hands – which is the essence of a feud. So this is a totally invalid point to raise as an argument.
“it is the stance of someone willing to see someone associated with the victim, or the victim himself suffer further”
How are they going to suffer _further_, other than possibly by failing to have their desire for revenge gratified by the legal system?
This was a mediaeval approach to justice, which has been slowly whittled away by successive improvements in the justice system.
If someone wrongs me I do not want to be the one to decide his punishment. I want the law to catch him, I want the law to try him and decide his sentence, I do NOT want to have to forgive the bastard, that is asking too much of me; but I don’t want to give in to my more savage instincts and demand revenge either. Life’s too short. Shit happens. Move on. Get over it.
cr
Howie, the justice system is supposed to be aloof and dispassionate. That’s why as civilized people we delegate justice to formal courts bound by law and procedure, instead of leaving it in the hands of angry victims: so that cooler heads may prevail, and prevent abuses born of emotional excess.
But dispassionate does not have to mean unsympathetic. We should do everything feasible to help grieving families heal — except putting the killer’s life in their hands.
Let us try out a little thought experiment to test the validity of the argument that there is no need for retribution in punishment.
Let us suppose that cognitive science advances to a point that we can correct the neural connectivity that CAUSED a criminal to carry out a particular criminal act. However we do not have the technology to PREDICT that this act WOULD BE committed. But with this level of technology we can CORRECT the neural circuitry that caused the crime and this will stop the individual from ever committing this same sort of crime again. The process takes only hours to implement once the decision is made to use it in a particular criminal case.
Now, with only a criteria of “corrective reforming” in place, the criminal once convicted, can be “fixed” and released back into society within only a matter of hours. No punishment needed. So we take up this “zero punishment” option to maintain our moral purity on the matter. What are the implications? Well – it turns out that other potential criminals realise that their punishment for any future offence is essentially zero. The level of crime explodes. It gets even worse – the victims of crimes see that they themselves can get retribution for injuries to themselves or family by taking “justice into their own hands” and murdering the criminal – for no lasting punishment will occur for them.
So what does the state do? In instigates severe penalties for only the sake of DETERRENCE. Now the jails are filled with totally rehabilitated individuals. The system becomes, in it’s own moral terms, totally unjust.
Finally, with no rational alternative operable, society returns to a punishment system that does NOT involve “cognitive neural correction” – it goes back to “the old ways” – including retribution!
My point here is that human morality is built on innate human nature that involves an evolved sense of what is FAIR – and what is just. If we ignore this in our social moral systems we set up impossible, and I would claim totally immoral solutions in establishing a just punishment system. We must therefore recognise the need for some element of retribution in the punishments we set.
Once again, Gregory said it better than I could.
I do agree with Howie that we have some innate feeling of ‘fairness’, (though that can be warped when our own interests are involved). This is why I think we need to rely on the justice system to administer justice fairly and not be swayed either way by the wishes or indifference of the victim or relatives.
cr
The central problem with your thought experiment is that if the causes of (some types of) crime can be traced to specific brain disorders, and we have the ability to detect and correct those disorders, then the rational thing to do is to screen for them, catch them early, and correct them before any crimes have been committed or criminal personality traits established, just as we would do for any other correctable developmental disorder.
But maybe I’m misunderstanding you, and you’re not suggesting that crime is caused by faulty brain wiring. Maybe you’re proposing that properly wired people who commit crimes be subtly lobotomized in a way that turns them into docile drones for whom crime becomes unthinkable. In that case, I’d scarcely call that sort of forcible personality alteration “zero punishment”, nor would I expect many would-be criminals or bereaved families to cheerfully volunteer for it.
Either way, it seems unlikely that the scenario would play out the way you present it.
Well, the nice thing about though experiments is that we can set up conditions that are not easily created in reality to test the implications of our thinking. In my experiment I deliberately removed the constraints you speak of – 1) the predictability of “inevitable” criminal activity prior to a crime taking place and 2) no “lobotomisation” being made – except for the very very limited and specific criminal behaviour which has occurred and absolutely nothing else. The model forces a situation that the criminal is totally rehabilitated for the specific crime he/she has committed – thus making the criminal ready for an instant pardon.
I do this to test the assumption that it is rehabilitation, and rehabilitation alone that we are seeking in punishment.
And the experiment exposes the great flaws in this.
Well, if the conditions set up in the ‘thought experiment’ have no genuine relation to reality, then of what value is the experiment? And your suppositions that the sort of ‘mental correction and release’ you envisage will automatically lead to anarchy and cycles of revenge, followed by draconian deterrence, and then a happy and relieved return to the present splendid and highly civilised situation (in the US, that is) – these suppositions seem entirely arbitrary and based on a few crude notions about human nature that need to be argued for, not simply asssumed.
“Well, if the conditions set up in the ‘thought experiment’ have no genuine relation to reality, then of what value is the experiment?”
A thought experiment does NOT deviate from reality in respect to factors apply to the physics of a system.. but instead it provides a focussed model of what is going on, in a way that may be very difficult otherwise to achieve experimentally.
Are you possibly saying Tim, that we do not really seek rehabilitation in cases of dealing with criminal behaviours?
” these suppositions seem entirely arbitrary and based on a few crude notions about human nature… not simply assumed.
Well explain then what YOU would do if prison terms required for the rehabilitation of criminals for their specific crime was achieved only in hours, instead of years? And what effect would this have if all these rehabilitated felons were released?
I can’t imagine any sensible alternative strategies being adopted which are consistent with the moral position you folks are putting forward, but I’d be fascinated to hear of any.
I should be delighted if the terms necessary for the rehabilitation of convicted criminals could be reduced to hours as opposed to years – and were that possible, I do not doubt that human society would be very different in all sorts of ways from what it is now as a result of deep and far-reaching social and political changes. A problem, surely, with your thought experiment is that you are changing only one factor, so that some sort of magical change can be made in only one aspect of human society, while the rest of it retains what you seem to celebrate as its brutish and vengeful normality. But as is shown by the case of Norway, where, it seems, the present policies are widely accepted, and no cycles of revenge-killings have ensued in consequence of what you perhaps deplore as the leniency of the sentencing (something that might be expected at least in some small degree if the assumptions of your experiment were valid), even now human societies do not all behave in the same way, and the kind of vengefulness that seems particularly strong in Anglo-Saxondom, and particularly in the USA, does not pertain everywhere.
I’ve already given you one: use the advanced cognitive science you’ve postulated to proactively screen for the kind of brain disorders you’re imagining, and correct them before they do any damage. This requires no assumption of inevitable criminal behavior, any more than repairing a congenital heart defect requires certain knowledge of inevitable heart failure. All it requires is the ability to detect defects that are likely to cause harm, and fix them. Not doing so — allowing children to grow to maturity with serious cognitive defects that are known to be correctable — would be morally repugnant.
If you’re now saying that your thought experiment assumes the ability to correct such defects but not to detect them, that’s simply incoherent; how can we fix bad wiring if we don’t know what the difference between good and bad wiring looks like?
Well it seems that both you Tim and you Gregory seem to want to duck the basic question that this exercise demands, mostly by trying to challenge the practicality of creating the conditions of the thought experiment rather that the implications of the questions that it raises. It is all quite simple – there are three factors that determine “fair punishment”. Jerry lists them. If we were to express this situation mathematically it is:
FP= f(Rh)+f(D)+f(Rt)
FP=fair punishment (in years)
Rh= rehabilitation (in years)
D= deterrence (in years)
Rt= retribution (in years)
The problem with people, including yourselves is that you only look at the sum FP and choose to believe that it contains, or should contain ONLY the factors that you wish it would contain. The person seeking retribution sees the sum FP as representing “getting back” at the criminal for the hurt he caused; the behaviourist sees FP as the time needed for deterrence using Prisoners Dilemma game theory; the moral purist sees FP as the time it takes for rehabilitation and deterrence. This mathematical illusion works – EXCEPT when one (quite mathematically correctly) drives one or more of the functions to zero and asks the question -IS THIS JUST?. This is what my thought experiment does. It eliminates the pretence. Society deals with punishment by encouraging this pretence – as long as FP has a fairly high value everyone is happy.
Retribution is built into our genes. For the scientific mind we can justify an objective moral value from a genetic “human nature” basis. As social animals we seek co-operative behaviours and we seek “fairness”. Fairness involves RETRIBUTION. Retribution is the fundamental basis of tit-for-tat type strategies which form the basis for all cooperative behaviours. Ignore this at your peril.
Howie, writing down a spurious equation doesn’t make your thought experiment valid or your argument airtight. You’re still just making unsupported assertions.
And the fact that we have a genetic tendency to do something doesn’t make it morally correct. Please look up the naturalistic fallacy.
“And the fact that we have a genetic tendency to do something doesn’t make it morally correct”
Well, if a genetic tendency does not form the basis for human morality what else does form it?
We scientifically oriented atheists generally claim that objective moral values are derived from innate tendencies in our human nature rather from some supernatural religious scriptural authority. In fact these various religious scriptures only codify what are already innate genetic strategies. We applaud the sentiment of “the golden rule” found in so many religions, and show that it merely arises from strategies of cooperation quantified in Evolutionary Game Theory. It is in our genetic nature as complex social animals to follow such a “moral” strategy as illustrated by the implications of the game of Repeated Prisoners Dilemma and the strategies of cooperation and reciprocity that it highlights. So we can’t exactly ignore the implications of Game Theory in games involving “fairness”. Retribution is part of fairness, it’s part of the effective strategies of Repeated Prisoners Dilemma also. So when we also see primitive imperatives such as “an eye for an eye, tooth for tooth” we also see genetically derived strategies, like it or not. And though we may choose to mitigate the harshness of this imperative we cannot create a “fair” penalty system without taking this into account. We must satisfy to some extent the natural genetically based human need to seek some level of retributive justice.
I recommend reading one of the greatest Icelandic sagas, and one of the great works of European literature,’Njal’s Saga’, which ends, after a great deal of violence and killing, with the breaking of a cycle of revenge. One might reflect also that the Icelanders were predominantly of Norwegian stock and think of the Vikings… Despite the once fashionable chat about ‘killer apes’ and Napoleon Chagnon’s supposition of a link between murderous violence and reproductive success, human societies and polities are quite various, and they can and do change.
Why do I, and I wholeheartedly agree with the Professor’s post, still think we are dealing with the ambulance at the bottom of a cliff.. It is a nagging thought especially for countries in the west where we have a reasonable amount of freedom to apply new innovations to laws and practices leading up to the cliff.
For instance, why do the people of Norway accept this as a sound policy for dealing with criminal behaviours, while I know a lot of friends, work colleagues around me would find it hard to assimulate such policies.
Norway has a ‘catch me’ policy, we have a ‘splat me’ policy and although one makes more rational sense and actually a working policy they both have the quality of ‘after the fact’ we deal with it.
Criminal behaviours will not be eliminated but perhaps with more Norway type innovation in other areas of society, the cliff is only somewhere to view the scenery not somewhere to jump off.
[In voce Red Neck]
“Don’tcha y’all go around trying to confuze mah God-given prejudices with pinko-commie-liberal-subversive “ee-veiy-dense”.”
And, surely, if the death penalty has no deterrent effect, then lesser penalties are unlikely to have any more deterrent effect. Which raises the question: Why talk about deterrence at all?
I think I read some study somewhere (yeah, I know, vague statement!) that suggested deterrent effect was linked to probability of detection, rather than severity of penalty. In other words, deterrence does (apparently) work, but only if the offender knows he will _probably_ get caught.
So it doesn’t work on offenders who think they’ll get away with it, or on nutters who don’t care.
cr
Deterrence works all right! (accepting your point that the offender believes there is a high probability of being caught). Game Theory tells us so from Prisoners Dilemma and all that sort of thing. If you check statistics on lowest crime rates you will find countries with the highest penalties have the lowest crime rates on theft, murder etc. Saudi Arabia is one of the lowest crime rate countries. We in the West of course mitigate the severity of our punishments based of additional moral criteria beyond just deterrence.
As an aside – I do wonder why incompatibilists always argue for LESSER penalties based on a “they can’t help it” argument. I would think if we consider ourselves nothing more than robots that it really doesn’t matter about such sensitivities when just dealing with a robot – and we should therefore INCREASE the deterrence for unacceptable social behaviour, just as the Saudis do.
Well, this is refreshing! Thank you, infinite & thank you, Howie. I was thinking to myself during the day, do we (and I include myself in this) resort to the ‘they can’t help it’ argument when we (perhaps because we are educated, and therefore suppose unconsciously we are somehow free of the determinism we might consciously espouse as a doctrine) think of the uneducated and impoverished, the emotionally overwhelmed and the mentally ill, and not when we think of highly educated bankers, let us say, or company presidents, or scientists who cook their scientific books, like that Harvard (was it?) chappie who Jerry thought hadn’t been given a punishment sufficient to be a deterrent? There is certainly a part of me that would be willing, no, delighted to see a few of the people who caused the not-so-distant financial melt^down stuck behind bars. It really is hard to see them as ‘victims’ of a system that caused them to behave as they did – though it would be certainly true to say that they are part of a culture that encouraged them to do what they did; which leads, once again, to ultimately political questions, such as why are we willing to tolerate a culture that encourages such behaviour? And I am glad that Howie (if I may – the other’s too long) brought up the matter of ‘incompatibilism’, at least as it is normally presented: I have long thought that if deterrence is an important factor, then why not make deterrence as draconian as possible? But, again, Saudi Arabia? I don’t know the statistics, but is the crime rate lower than it is in, say, Norway? And what are we regarding as crimes: petty crimes like burglary (ie what the ruling and propertied classes regard as crimes – starving farm-workers were hanged for stealing a sheep to feed their family in 19th-century England), or, let us say (since it is Saudi Arabia) blasphemy, or the criminal behaviour (as it would be in many countries) of a ruling class that is essentially above the law? (As I recall, the Sultan of Brunei who, with his brothers and, doubtless, his cousins and second cousins no matter how many times removed, is notorious as a playboy has recently introduced sharia law, complete with stonings for adultery, being gay, etc). It seems to me that crime is being reduced, by incompatibilist and compatibilist alike, to something that is wholly the responsibility (whether moral or not) of the individual perpetrator, and that has nothing to do with any larger circumstances (eg poverty, institutionalised racism)and that is also something that is perpetrated by people ‘who don’t know any better’. It is a peculiarly Anglo-Saxon aberration, it seems to me, and is connected with the rugged individualism and libertarianism and generally Ayn Randish thinking that has come to infect too much of our discourse.
and not WHEN WE THINK of highly educated bankers, let us say, or company presidents, or scientists who cook their scientific books, like that Harvard (was it?) chappie who Jerry thought hadn’t been given a punishment sufficient to be a deterrent?
Please remove the ‘WHEN WE THINK’ that I have put now in capitals from the longer comment above.
“But, again, Saudi Arabia? I don’t know the statistics, but is the crime rate lower than it is in, say, Norway?”
Well, let’s look at some statistics (from United Nations Report on Crime https://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_Justice.pdf )
Crime figures are in incidents per 100,000 of population
Norway Saudi
Assault 346 63.2
Rape 18.0 .3
Robbery 29.7 2.9
Drug Related 622 22
Even allowing for variations in measurement, these statistics seem to me to be quite conclusive re: deterrence of crime – even with regard to “low-crime” Norway
On you general discussion Tim all I can say is that we as rationalists must really endeavour not to let our political persuasions bias our thinking when we try to argue a point of fact or even a moral position. I think the subject of penalties for crime is a minefield made up of personal political biases, philosophical leanings, and unsubstantiated psychological theorising. This does not help us reach rational solutions to real problems. I do think Science can help us reach moral conclusions. But we need to have scientific discipline when we do this.
The need to consider retribution as a fundamental human need when structuring some level of fairness in punishment regimes seems to me to be essential. To pretend that this is not the case seems a fundamental error in dealing with the subject of punishment in a rational fashion.
Sorry – heres a readable table structure:
Norway Saudi
Assault 346 63.2
Rape 18.0 .3
Robbery 29.7 2.9
Drug 622 22
Sorry – heres a readable table structure:
Norway Saudi
Assault 346 63.2
Serious
Rape 18.0 .3
Robbery 29.7 2.9
Drug 622 22
Related
My apologies for crappy table struture
Cheers
Well, clearly sharia law needs to be introduced everywhere as quickly as possible! No more complaints about ISIS – the buggers are right!
Hands, legs, hands, and perhaps overly unbending penises all being chopped off in short order, lashings of lashings, storms of stonings, public hangings, mass executions… Oh, brave new world! What are we waiting for!
But before we get too excited, it might be an idea to look at Saudi society, as well as Norwegian society, and ask whether the circumstances of each make a simple comparison
of crime rates (for, obviously, those fairly simple crimes that are listed, and not, say, for adultery, homosexuality, blasphemy & atheism or possessing forbidden books – an acquaintance of mine who worked once in SA told me of a Filipino Christian being condemned to be lashed for possessing a Bible)genuinely illuminating. The Saudi part of the Saudi population are, after all, pretty well subsidised by oil and financially secure (I don’t think I’m wrong in saying this), whereas the ‘workers’ are generally imported from various poor countries and are maltreated in various ways, so that, for example, were the Filipina or Indonesian maid of a Saudi family to be raped by the husband of the household or one of his sons, it is unlikely she would have any redress (and if she tried…). In addition, even if you were a Saudi woman and reported that you had been raped, you would probably be punished for having had illegal sex, a situation that suggests that rape and other kinds of sexual abuse (that of the dancing boys of Afghanistan, for example) are probably very much under-reported in most Muslim companies (in the case of the dancing boys, it seems not to be regarded as criminal). So unless wider social circumstances are introduced, I don’t think that much can be made of such comparisons.
I agree with you very much about the great importance of fairness, and of justice being seen to be done, and warmly agree with the thrust of the (rhetorical) question: ‘…if a genetic tendency does not form the basis for human morality what else does form it?’ But as the case of Norway shows, senses of what is fair differ, and can come to differ, in accordance with different social and political situations, and one needs to be very careful indeed about making knock-down ‘socio-biological’ assertions about unchanging human nature, considering what political ends they can be made to serve.
I don’t really think we are too far apart on this whole matter now Tim. I suppose my arguments could be misinterpreted -giving an impression that I’m some raving “retribution maniac” – but I really only target strong arguments against those who seek to eliminate ALL consideration for a victim’s desire for punishment for retributions’s sake. I think that lecturing these people, who have suffered great hurts, as if they were immoral themselves, or categorising their natural feelings as improper and primitive only adds further hurt to the hurt they already suffer. And it thwarts the healing process. Where is the justice in any of that?
No, I don’t think we are too far apart, and I certainly feel you are right to argue against those who seek to eliminate all consideration for victims’feelings and who fail to see that a sense of justice having been done is important; but it is interesting to me how a discussion of crime and punishment necessarily brings in political matters. I do not think that the well-to-do farmer one of whose sheep was stolen by a Wiltshire labourer whose family was starving was suffering from a great hurt that could only be healed by the hanging of the labourer: Johnnie Budd was hanged in 1821, leaving a wife and three children to eke out a life of terrible poverty. (The story is told in the Anglo-American naturalist W.H. Hudson’s extraordinary short account, ‘An Old Thorn’, which made a huge impression on me as a boy.) There are crimes and crimes. And, quite honestly, the fact that certain bankers who have ruined thousands of people’s lives through their criminal activity are not brought to account infuriates me more than most of the petty and not so petty crimes that grab the headlines – though regarding the latter, the lack of justice done in the case of the killing of Trayvon Martin, and the killing of other young black people, disgusts me. And, yes, this naturally depends on a sense of fairness, of being treated fairly. The victims of the bankers and the family of Trayvon Martin have been treated with fairness and justice has not been done. And this has, of course, a great deal to do with the growing un-justness of our societies, as both Thomas Piketty and Paul Krugman, among others, have pointed out.
the victims of the bankers and the family of Trayvon Martin have NOT been treated with fairness…
I agree that victims’ feelings deserve consideration, and that a sense of justice having been done is important. But I don’t agree that either of those goals necessarily requires executions. This seems to be the main thrust of Howie’s argument: that if we don’t kill the perps, a great wrong is being done to the victims. I don’t buy it. Fairness is one thing; revenge is another, and I think we do a great wrong by conflating them.
I certainly don’t advocate “lecturing these people, who have suffered great hurts, as if they were immoral themselves”. My ire is directed at prosecutors who fan the flames of victims’ retributive impulses to advance their own political ambition. Where is the justice in that?
Yes, and as for fairness, it simply is not a matter that pertains only to ‘punishment’, and I wonder at the attitude that supposes that the question of ‘punishment’ for ‘crimes’ can be treated quite independently of broader social, legal & political factors. If Howie really is suggesting that every murderer should swing or fry or be otherwise put down in order to satisfy the retributive thirst of the victim’s family and friends (do they all have such a thirst?), then what he is advocating is objectionable. Is that what you are advocating, Howie? What is far more important than any punishment of perpetrators is the public and official recognition that a genuine and serious wrong has been done, as did not happen in the Trayvon Martin case: that is first of all what is meant by fairness and justice. But instead the contemptible George Zimmerman was exonerated, since the victim was black, since America’s ridiculous laws regarding guns can be twisted this way and that, and since the police and legal system are corrupt, and Zimmerman has gone on to pursue a predictable and contemptible career, beating up girl-friends, getting into fights, etc, with the support of equally contemptible fools like Sean Hannity and others who like preaching about ‘law and order’ and think black youths deserve what they get. If there were greater official & public re cognition of the great wrongs done to people like Trayvon Martin, America’s would be a better and fairer society.
You should both be pleased that I am against the death penalty, and I don’t think I’m being inconsistent on this. I just feel that the outcome from setting a sentence for a crime should leave the victim with some feeling that the perpetrator is going to “pay for the crime” in a way that approaches “fairness”. I recognise this is difficult to achieve.
Sorry to become mathematical again… I can’t help myself. Suppose that X commits a serious crime on Y causing pain and suffering P. Now suppose again that we could totally rehabilitate X within HOURS (he will NEVER offend again) and further suppose that absolutely no one else would ever commit the same sort of crime- therefore no deterrence time needed (I know this is pretty hard to imagine). Now what should we do? Moral purists (especially incompatibilists) here infer we should let X off entirely. I say this is unjust and that even in this situation a penalty should be imposed which causes Y a hurt to himself. What should it be? Is it P/2 or P/3 or ??? I guess each case is different.
When I lived in Gloucestershire a local lad who was an outstanding snowboarder (a prospect for European level championships) was hit by a car driven by a drunken driver. He was crippled. It was the drivers second drunk driving offence. But- the offending driver needed his car to keep his job and look after his family. The sentence – 6 months “community service” (spending a day off each week clearing trash on road – that sort of thing) and a modest fine. There was outrage. It was NOT over a unproportionate “deterrence value”. It was obviously for unfair RETRIBUTION. A promising young life was ruined.
Moral purity irritates me when it is taken to the point of being inhumane.
I can agree with that. Moral purity too often seems to consist in the morally pure, who have in many cases spent their lives in one ivory tower or another, talking down to the hoi polloi, the great resentful and unwashed.