Mass Confusion

There is a long article in the New York Times about the increasing opposition to the use of exceedingly long prison sentences―often life imprisonment without parole―as punishment for all sorts of crimes, often not involving any violence, including drug-related offences, resulting in the phenomenon of “mass incarceration.” The article highlights the findings of social scientists that mass incarceration has long stopped contributing to the ongoing fall in crime rates, if it ever did, and that it may even be creating more crime than it prevents, by destroying the “social fabric.” At the same time, it results in enormous increases in public spending on prisons. And many people, including judges, feel that it is simply unjust to put people away, often forever, despite their very limited culpability. It is an interesting piece, but I would like to highlight a few distinctions which it blurs or does not make at all.

One concerns the label “non-violent crime”. There are many crimes not involving violence, or even threats of violence,―fraud, for example, or blackmail. I don’t think it is very helpful to confuse acts of that kind, which would be considered crimes on any, including the most libertarian, account of criminal law, with things like drug possession or trafficking. We can of course debate the appropriate penalties for fraud, but I doubt that many would argue that it should never be punished with imprisonment. Drug crimes are another matter. So I think that the category of “victimless crimes” is a better focus of concern than that of non-violent crimes.

A related point is that a discussion of penalties for victimless crimes, especially drug-related crimes, feels incomplete without any mention of the question whether these should be criminalized at all. Yet that is exactly what the Times‘ article manages. For all the discussion of the costs, human, social, and economic, of mass incarceration, it never really raises the issue of decriminalization. The closest it comes is by mentioning the fact that some now advocate “diverting” those found guilty of drug crimes from incarceration to treatment―but of course this implies that what these people did was a crime to begin with.

Another point of confusion concerns different sentences that the article lumps together as contributing to mass incarceration. There are simply very long sentences, mandatory minimum sentences, and specifically life imprisonment without parole. Yet these three types of sentences can raise different issues. Sometimes a sentence will be unjust because it is disproportionate to the crime, regardless of whether it is mandatory or the product of judicial discretion. With a mandatory sentence, the lack of such discretion will sometimes be a problem, but perhaps not always―I’m not aware, for instance, of people arguing that the mandatory sentence of life imprisonment with no possibility of parole for 25 years, which Canada imposes for premeditated murder, is unjust. Life imprisonment without parole, whether or not it is a mandatory sentence for any give crime, raises issues of its own. In Germany, for example, it has been held to be an unconstitutional violation of human dignity. I’m rather skeptical about such claims, but they are out there―and they are only made, so far anyway, with regard to life without parole, not any other sentence, except the death penalty of course.

The final point I want to make is, as it happens, one I previously raised (here, here, and here) with respect to the death penalty. Most arguments about it―in favour or against―are either consequentialist or deontological/justice-based, and it is sometimes remarkable how arguments of one or the other sort are made in specific contexts. With the penalties that contribute to creating mass incarceration too we see both sorts of arguments. Social scientists whom the Times quotes stay in the realm of consequences, as do the politicians who are now beginning to reverse some “tough-on-crime” policies. On the other hand, those who deal with specific cases―a prisoner interviewed by the Times and the judge who imposed a mandatory sentence of life imprisonment on her―speak of the injustice of that sentence.

Mass incarceration is a huge problem, and a disgrace, for the United States―and also to Canada insofar as our government seems keen to import some of the policies that create it. All the more important to think clearly about it.

Death Penalty and Dignity

The topic of tomorrow’s class in Jeremy Waldron’s Human Dignity seminar is the death penalty and, having blogged about the sorts of arguments that are made for and against it here and here, I want to come back to the topic, because a couple of things caught my eye as I was doing the readings.

One is a passage in Justice Brennan’s opinion in Furman v. Georgia, 408 U.S. 238 (1972), a case in which a majority of the Supreme Court of the United States declared the death penalty unconstitutional in that country. Justice Brennan has no doubt about the sort of arguments that really count in the death penalty debate:

From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. (296)

Now I don’t know whether this is true as an empirical matter. Perhaps, up to 1972, “the battle” always had “been waged on moral grounds.” But, as my previous two posts suggest, it does not really seem to be the case anymore, at least not in the political realm, as opposed to philosophical discussions. If Justice Brennan’s reading of the debate was correct at the time, this means there has been an important change in the way Americans argue about the death penalty. But perhaps he was wrong, deliberately or not, mistaking what he wanted to be the case for what actually was.

Yet it may well be that―as my previous posts suggest―moral grounds are not those on which opponents of the death penalty ought to be fighting if they care to win. Justice Brennan’s victory in Furman was short-lived, Merely four years later that decision was (partially) overturned in Gregg v. Georgia, 428 U.S. 153 (1976) which held that the death penalty was not unconstitutional provided that its imposition was surrounded with certain safeguards.

And the story of two Canadian cases discussing the death penalty, in the context of challenges to decisions of the Canadian government to extradite to the United States people who are at risk of being executed there is interesting too. In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, a 4-3 majority held that extradition in these circumstances did not breach s. 7 of the Canadian Charter of Rights and Freedoms, the dissenters’ furious invocations of human dignity notwithstanding. 10 years later, in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, the Court effectively reversed Kindler, in a unanimous judgment that did not discuss human dignity at all. And while it does invoke some arguments that appeal to considerations of dignity and justice―the risk that innocents will be put to death if the the death sentence is applied, and the irremediable cruelty of the “death row phenomenon”―its makes them look as though they are almost secondary. The first argument is that Canada’s law and public policy (especially in foreign affairs) consistently condemn the death penalty, so that its rejection ranks among the basic tenets of the Canadian legal system. (Possibly, probably even, that is because Parliament and the government of Canada came to regard the death penalty as morally wrong, but the Supreme Court doesn’t say that!)

All that is not to say that this is how things should be. If one is philosophically inclined, one is likely to regret the avoidance of the “moral ground” in favour of “merely” practical considerations. On the other hand, perhaps there is in fact good reason for that avoidance. Moral arguments can cut both ways―Kant, the great moralist and champion of human dignity, thought that the death penalty was not just permissible, but absolutely required in cases of murder―and there is no good way of proving their correctness to everyone’s satisfaction, and so to persuade people. (People still can change their minds of course. Justice Harry Blackmun did so famously. He dissented in Furman and, much later in life, dissenting again from a denial of certiorari (the U.S. equivalent of a leave to appeal to the Supreme Court) in Callins v. Collins, a death penalty case, where he wrote that “[f]rom this day forward, [he] no longer [would] tinker with the machinery of death” (par. 7) and that his court’s continued willingness to do so “lessens us all” (par. 40).) Maybe there is more agreement, or at least less intractable disagreement, to be found on the ground of practical considerations.

The Rewards of Punishment

I wondered aloud, yesterday, about the difference between falsely shouting “fire” in a theatre and causing a panic, and producing an incendiary video likely to cause murderous violence half a world away. Actually, I wondered whether there was any difference; I wasn’t able to come up with a convincing distinction. Eugene Volokh, over at the eponymous conspiracy, has a post with an interesting suggestion.

Suppose, he says, we punish the makers of the insulting video that caused riots all over the Middle East this week:

What then will extremist Muslims see? They killed several Americans (maybe itself a plus from their view). In exchange, they’ve gotten America to submit to their will. And on top of that, they’ve gotten back at blasphemers, and deter future blasphemy. A triple victory.

Would this (a) satisfy them that now America is trying to prevent blasphemy, so there’s no reason to kill over the next offensive incident, or (b) make them want more such victories? My money would be on (b).

Now I think that, theoretically, there is a distinction between punishing the a person for offending another’s religious (or other) feelings, and punishing him for endangering lives, even though the reason lives are endangered is the offence he gave. Prof. Volokh considers the former possibility, and I the latter. But, in practice, the extremists who incite riots would be unlikely to see that difference; or if they saw it, they would be likely to wilfully blind themselves to it. They would look at the bottom line: they responded violently, and got what they wanted. And they’d be back for more.

This problem simply doesn’t arise in the case of the person who shouts “fire” in a theatre. He endangers people; he is punished for endangering people; end of story―there are no perverse consequences to worry about. This is a practical difference between the two cases. And, as I said in yesterday’s post, the law should be made and thought for the real world, and so must arguably take such practical differences into account.

Still, is this all there is to it? Should we forebear from punishing the maker of an insulting video only because of the perverse consequences of punishing him? Or, alternatively, do we think it’s all right to punish the panic-monger just because we know there’s no cost to doing so? Despite my musings on the importance of consequentialist thinking about matters usually thought of in terms of pure rights, I would like to think there is also a deeper normative difference between them, which justifies their differential treatment regardless of the consequences. But I still can’t tell what that difference is.

Arguing with Death, Again

I wrote, three months ago now, about the sorts of arguments people make for and against the death penalty. Contrary perhaps to our intuitions, from at least the times of Thucydides, death penalty’s opponents have tended to resort to consequentialist arguments, while its supporters have relied on appeals to justice. A couple of interviews the BBC has taken in California, where the abolition of death penalty is going to be the subject of a referendum in the fall, confirm this trend – mostly.

The mother of a murdered child, who supports the death penalty, talks about justice for the killer. “He deserves” to be put to death; he ought to pay for the victim’s suffering. The former warden of a prison who once oversaw executions and now opposes the death penalty talks about its expense and ineffectiveness.

Things are more complicated though. The mother (perhaps prompted by the interviewer, whom we don’t hear) speaks of lethal injection being “humane,” the “most humane” thing that can be done to the murderer. Never mind whether this is really so. What I want to emphasize is that, despite appealing to justice in the shape of retribution, she is not calling for him to be tortured and brutalized as he tortured and brutalized her son. The ex-warden, for her part, brings up the irrevocable injustice of innocents possibly being executed.

And then there is, on both sides, an argument that I hesitate classify as being either about justice or about consequences – the one about “closure.” The mother says she needs the death penalty inflicted on her son’s killer to have it; the ex-warden says that’s a “false hope.”

So the issue is complex. Still, a point a made in my original post might be true. Arguments made for the sales pitch to the electorate might (need to be) different from those that avail in philosophical disputations or even in a personal reflection on a fraught moral issue. (This might, incidentally, be a partial response to the worry, expressed for example by Jeremy Waldron, that judicial resolution of moral issues like the death penalty takes them from the realm of serious thinking into that of legal technicalities. It seems that the political process isn’t much better than the judicial one, since also transforms the way these issues are considered, albeit in a different way.)

How to Argue about the Death Penalty

The NY Times has an interesting story today about two men who are leading a campaign in support of a ballot initiative that would abolish the death penalty in California – and who, in 1978, played key roles in the adoption of a ballot initiative that was meant to increase the use of the death penalty. They have changed their minds, and hope the people of California will, too. What is remarkable, beyond this change of heart, is that the reasons they give for it have only to do with the costs of the death penalty system: as one of them puts it, “$185 million a year … to lawyers and criminals.” Not a word about the morality of the death penalty, including the risk of killing innocents. Apparently, it is not a political winner, although this post by Janai Nelson at Concurring Opinions suggests otherwise.

It might seem wrong, perhaps even perverse, to argue about the death penalty without discussing its justice. But such argument actually has a very long history. In his History of the Peloponnesian War, Thucydides  describes the deliberations of the Athenian assembly on the question of what to do with the Mitylenians, who had revolted against them, and whom the Athenians had again subdued. The first debate on the matter was dominated by Cleon, who argued that the entire male population of Mitylene ought to be butchered (a word Thucydides – or his translator – repeatedly uses; no euphemisms here). His argument was in part consequentialist – “teach your other allies by a striking example that the penalty of rebellion is death” – but mostly appealed to the people’s sense of justice, offended by the Mitylenians’ revolt and clarmouring for treason to be punished with death. The next day, however, the opponents of the butchery succeeded in re-opening the debate. Their case was made by Diodotus, on purely consequentialist grounds. Indeed Diodotus argued strenuously that justice had nothing to do with it: “we are not in a court of justice, but in a political assembly; and the question is not justice, but [expediency].” Justice might say the Mitylenians are guilty and deserve capital punishment, but that would serve no useful purpose, contrary to Cleon’s claim. Death penalty is not a good deterrent: “It is probable that in early times the penalties for the greatest offences were less severe, and that as these were disregarded, the penalty of death has been by degrees in most cases arrived at, which is itself disregarded in like manner. Either then some means of terror more terrible than this must be discovered, or it must be owned that this restraint is useless.” On the other hand, mercy would induce future rebels to lay down arms rather than to resist to the bitter end, and thus save Athens blood and treasure. Diodotus’ arguments prevailed, and only the leaders of the Mitylenian rebellion were executed, rather than the entire people.

Perhaps this story need not change our intuitions – if we have any – about the value of purely consequentialist arguments about the death penalty. But they can work in the political arena if not in philosophy seminars, and in cases where the issues of justice are too politically explosive, they might be the only ones about which rational deliberation and changes of mind among the opposing sides’ supporters are possible.