My wife and I both agreed with the statement I have made several times before, that the distinction between premeditated murder and murder committed in the heat of passion seems backwards. (See "Fair or Functional?".) For those who will not follow the link, the argument is as follows. Some who kill with premeditation may commit more than one murder, but some, such as a man who kills a detested family member for inheritance, is unlikely to do so again. On the other hand, the man who becomes enraged enough to crush a stranger's skull on the sidewalk is likely to do so more than once. Yet the first is more likely to be sentenced to death, while the second will receive a sentence shorter than life in most states. And that bothers me.
Before proceeding, it may be beneficial to cover my view of criminal justice, and especially the death penalty, as understanding those topics will greatly ease understanding my argument in the rest of this post, which otherwise may seem a bit cruel and heartless to some. (See "Symmetry and Asymmetry in Government", "Compassionate Execution", "The Death Penalty", "A Rational Approach to Punishment", "The Ends Justify the Means?", "Fair or Functional?", "Not Completely One Sided", "Motives Unimportant" [referring to "Mental Illness"], "Crime, Insanity, Incompetence, and IQ", "Sunday Morning Talking Heads", "A True Conservative Platform" and "Biology and Ethics". Also, for some related topics, see "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Yet More Contradictions", "Utopianism and Disaster", "Principles Versus Outcomes", "Life Is Not Fair - And Trying To Make It So Makes Things Worse" and "Greed Versus Evil".)
My basic view of criminal justice is best summarized by an excerpt from my post "A Rational Approach to Punishment". I apologize for the long quote, but I have never found a better summary:
Obviously, like anyone else, I would find ideal a system which allowed me to do whatever I wanted without consequence, while providing enough punishment to everyone else that ti prevents them from harming me. Of course, no one would agree to allow me that freedom, and I would allow it to no one. So, the only choice which would be acceptable to all is a system where punishment is applied uniformly.As should be obvious, unlike the attitude I mentioned above, my concern is rarely with the motivation of a crime, but is, instead, entirely functional. As I argued in "Fair or Functional?", many imagine the criminal law should be about justice for the accused, and it is insofar as the establishment of guilt, but when it comes to punishment, we need not consider justice.What we need to consider is what the punishment accomplishes, not whether it is "proportionate." If anything, considering the criminal in punishment is just as damaging as considering the victim when establishing guilt. The trial is for the accused, the sentencing is for society. As I shall now explain.
The next question is whether the system will punish everyone or forgive everyone. The forgiving system will allow me any crime, but will allow the same to everyone else. As I expect to benefit less from my own freedom than I would suffer from the freedom allowed others, it makes sense to opt for the system that punishes everyone. The loss from giving up the freedom to commit crime is small, while the protection is great.
Finally, we need to ask how harshly crime should be punished. And again, the logic is the same. I can benefit from weak punishment, but the potential harm is much greater. As I am unlikely to commit a crime, but I will suffer if even a small percentage of others do, it makes sense to punish crimes harshly enough that almost everyone is deterred from committing them.
Criminal justice exists to protect rights. We have police and soldiers to prevent harm from befalling us by interrupting crimes in progress. However, when a crime has been committed, after the fact, they can still act. (I discussed this for the army in "Rational National Defense", "Rights Versus Laws" and "Last Word on Defense".) In terms of the police, this consists of finding the offender, in cases of theft or fraud hopefully making the victim whole again, and then trying and punishing the criminal. Now the trial and punishment is not for the victim, whatever psychologists may say. That is shown by the fact that the state, not the individual brings charges. There are clear functions for both trial and punishment, and none of them have anything to do with the original victim. As far as the state is concerned, once the crime is done, there is nothing to do for the victim other than recover property, if possible. The remaining process has everything to do with the state as a whole.
The trial has a simple enough function, it is intended to ascertain that the accused is actually guilty, or, if you prefer, to ensure that the innocent are not punished, at least to the degree possible given human fallibility. This is the first and last portion of the process concerned with the accused, or at least it should be. (As I will discuss later, we have foolishly allowed the accused a role in sentencing, and even made room for the victim, neither of whom should be involved at all at that point.) Once the accused has been found guilty, the rest of the process involves nothing more than the interests of the state, or, to be precise, of all citizens, taken as a group.
Sentencing, in a nutshell, serves two purposes, or rather serves the same purpose in two ways. It is the same purpose as the criminal justice system as a whole, and that is the protection of individual rights by the prevention of crimes. It can do so in two principal ways, either by keeping an individual criminal confined and unable to perform crimes, or by deterring a potential criminal, either the convict himself or another unrelated party, from committing additional crimes. There are some additional ways in which punishment can be used to prevent crimes, such as rehabilitation schemes, but those have generally shown very little promise, and so the focus needs to be limited to confinement and deterrence.
Obviously, since punishment is determined to produce the optimal outcome in terms of crime prevention, given the resources available, it should not involve the convict or the victim. While there have been movements to both allow the criminal to show contrition and the victim to "put a face on the crime", in reality both are inappropriate, as neither tells us anything about what will serve to deter similar crimes. Punishment should be based upon little more than the likelihood of recidivism, and, to a much smaller degree, on the nature of the crime, as crimes which we particularly wish to deter may merit higher penalties to discourage others even more. But self-serving statements by the criminal tell us nothing about those matters, nor do the recollections of victims. While they may horrify us, or make us believe a criminal has seen the error of his ways, they do not help us in determining what best achieves our goals.
But that is enough about crime and punishment in general. I have discussed them at length in the posts already linked, for those interested in more detail. So rather than getting bogged down in a restatement of posts already published (Actually, I think it is too late to avoid getting bogged down...), I will now get back to my original purpose, to recount some specific details that came up in the discussion I had with my wife about motives, psychology and the death penalty.
Our first topic was, as I described above, my puzzlement over the way in which the law handles murder penalties. I know the law differs from state to state, even having differing definitions of what constitutes first, second and other degrees of murder, manslaughter, and so on. So, for purposes of this discussion, as I attended law school (for a year) in Maryland, I will use the definitions from Maryland law. Basically, first degree murder covers murders committed with premeditation, with "a depraved heart" - -that is, such egregious negligence that anyone would have known someone would die, such as shooting a shotgun into a crowded subway car -- murder of a police officer, or committed in the course of committing a felony. Second degree murder is any other killing with the necessary mens rea to not fall under manslaughter. That is, any other intentional killing without an imperfect justification or excuse. Manslaughter than covers everything else, all those killing which either were unintentional (involuntary manslaughter) or intentional but imperfectly excused or justified.
The system makes perfect sense if you think in terms of "what someone deserves", or at least it does provided you agree with the degrees of blame embodied in the system. Provided you think that it is worse to plan to kill someone than to get angry and kill, then it makes sense. Similarly, it works if you accept that intentional harm should always be punished more harshly than negligent acts.
I think that approach, while understandable, is the wrong one, as I wrote in "Fair or Functional?". An approach dedicated to abstract justice sounds good, and appeals to our sense of fairness, but it is contrary to the purpose of the penal system, at least as I understand it. There are, in essence, two ways we can approach punishment. We can try to "give each his due", or we can enact punishment so that it deters the punished and his fellows from committing additional crimes. The first is "fair", but may often lead to punishments which are too harsh, or too lenient, depending on the circumstances.
Let me give an example.
Let us look at the example I proposed above, murder in the heat of passion. Under most systems, this type of murder is reserved for less severe punishment. However, those who are inclined to sudden bursts of violence tend to be the most difficult to deter, as they act without thought. For a penalty to be severe enough to enter the thoughts of one given to such rage, it seems it would have to be very severe, more so than most premeditated murders would require. So, by providing lesser penalties, we are likely providing no deterrent to the murders we are punishing. In addition, as those prone to homicidal rages are not easily reformed, they are also the type of murderer who may most need to be detained to prevent him from additional acts of violence, yet, again, because he is seen as less culpable, he is kept in jail a shorter time, meaning one more likely to commit additional crimes is released sooner, which seems contrary to the protective purpose of the system.
Which actually leads to my next point. My wife and, as we were discussing psychology as well as crime, also touched on the insanity defense. As I said above, I never understood why an individual given to murderous rages received less punishment than one who commits premeditated murder, but it gets even worse with insanity. It seems to me the traditional definition "unable to tell the difference between right and wrong" is the precise definition of someone who should be detained indefinitely, or executed to protect the rest of us.
Many will think this heartless, as they think in terms of "justice", but the purpose of society is self-defense, not cosmic rectitude. We need to distinguish between the police and courts, doing their best to defend us form harm, and the Almighty, handing down definitive justice. We cannot seek to be flawless, or to give each his due. What we can do is establish a system which prevents crimes while respecting rights.
And in that case, it seems to me that the insanity defense is a very bad idea. And for some very simple reasons. If you are attacked by a dog, do you fight back? If you know it is rabid, and thus "not to blame", do you then allow it to maul you so as not to harm an innocent dog?
Of course not! And that is my problem with the "criminally insane". I simply cannot understand why an inability to tell right from wrong gives one an excuse. It seems if they are that dangerous, that likely to inflict harm, they are the best candidates for punishment. I am not discussing those "unable to assist in their own defense". I have some doubts about that argument as well, but I am here discussing those who have been found to have committed the act, but at the time were unable to tell right from wrong.
Thinking about this group, it seems that purely functional approach would argue that they need to be treated the same as the rabid dog. If they are given to criminal acts without cause, they are a clear danger to everyone. Even if locked away in a jail or asylum, they are still able to hurt the guards or other inmates or prisoners. It seems the only possible way to ensure that they not commit additional harm, injuring or killing other members of society, is by executing them*. But, as I have said, for whatever reason, our society seems to base punishment on an inverse of the likelihood of committing another crime**.
After we discussed this, I managed to raise a point which actually troubled my wife. She agreed with part of my argument, at least to a degree, but she was unwilling to accept my final conclusion. However, as I see it, there is no other possibility. And the topic that caused our disagreement? The handling of those with below normal IQs, once called the mentally retarded, though I don't know what the proper term is today.
My first argument was the same as I made in "Crime, Insanity, Incompetence, and IQ" (and in passing in "The Problem With Evolving Standards"), and one with which my wife mostly agreed.And that is the foolishness of using IQ tests applied after the arrest to determine if a criminal should be executed. As I argued, it is not hard to fake a subnormal IQ if your life is at stake***.
My wife argued that in her experience it is not that easy to fake mental retardation, but I pointed out that the circumstances are not the same as she dealt with when she was a social worker/psychologist. First, the initial diagnosis is made by a "hired gun" working for the defense, who obviously not only has an interest in reaching a specific conclusion, but may even, intentionally or unintentionally, provide the criminal with tips on how better to fake the symptoms. Then comes the other doctor, from the state, who comes in blind, with very little history, no friends or family to interview, and only the testimony of a few guards and prisoners as background. In addition, a large part of the diagnosis depends on test results, which will be the crux of the argument in court, and which can be easily manipulated, so long as you aim to score lower than natural.
All of which means that it is not all that hard to "prove" you lack a normal IQ provided there is no pre-arrest record stating otherwise. So long as, like most criminals, you did not do well in school, held menial jobs, and generally flew along under the radar in the lower echelons of the economic and intellectual world, then there is nothing to contradict your intentionally poor scores on IQ tests and it is very easy to avoid a death sentence by engineering a diagnosis.
My wife was mostly convinced by my argument, though still not certain it would be as easy as I claimed. But she was not so ready to accept my next proposal.
You see, my other argument was that such diagnoses really didn't matter anyway. Whether someone has an IQ of 50 or 150, it is my contention that their punishment should rest entirely on their acts (which we consider for purposes of deterrence), and the probability they will offend again. We are not punishing smart people more harshly because they should know better, so why let off the dim because they can't? And why do you get a pass at 59 IQ, but not at 61? Is the difference that great? But if we allow 61 a pass, then why not 63? And then 70? And 80? And you can see where this ends up.
The point here is the same as with the insane. It is all the rabid dog argument again. We punish to prevent crime, to deter others and to prevent the convict from offending again. We do not base this punishment on their intellect. It is entirely based on their deeds and the effects of those deeds. Are you any less dead when killed by someone who has an IQ of 55? Is you property less stolen? The outcomes are the same regardless of intellect. And so, unless the IQ has some effect on the likelihood of offending again, there is no reason to include the intellect in the equation. We punish to defend society, not to give "justice" to the victim or the criminal.
Nor is it fair to treat the low IQ criminals as if they were not dangerous. If we keep alive murderers who have low IQs, they have every chance to kill again, be it guards, fellow prisoners, or the retarded inmates at whatever facility takes them. The fact that they kill makes their low IQ irrelevant. Their actions are what matter. And do we want to put other criminals, low IQ individuals, doctors, orderlies and guards at risk just because this criminal has a low IQ? Killers are killers regardless of their other traits, and they should be judged as such. Attempts to do otherwise is to confuse motive with outcomes, and that is a mistake.
And I suppose that could serve as a summary for my whole post. We must punish based on actions, not on intent. Motive and intention may matter when determining guilt,. but once guilt is established, all of that should be set aside, all thought of fairness for the criminal should be forgotten as well, and we must think of punishment solely in terms of protecting citizens, especially by deterring crime. Anything else will result in a system which does not work.
* There are those who would argue the insane might be "cured" and no longer pose a risk, but that seems unlikely. The track record of most therapies for the criminally insane is pathetic. In addition, since they have the right to refuse medication and otherwise thwart these supposed cures, it seems releasing some criminal on the basis of a possible cure is to risk a lot.
** To be precise, first degree murder is something of a mixed bag. Some, such as some felony murder cases, are likely to offend again. Others, such as my insurance murderer, are not. On the other hand, the insane, and those who kill in anger, are obviously very likely to offend multiple times. So, while I say the punishment is the inverse of the probability, in reality, the harshest punishment goes to those whose potential to offend is least certain, while lesser punishments go to those who are much more certain to offend.
*** I am actually dubious about IQ's utility in truly determining one's cognitive ability. It may effectively measure some sort of potential, but I have seen it as terribly misleading at both the high and low ends of the spectrum. Yes, when extremely low it may be meaningful, but I still must ask, why is 59 retarded (or whatever the proper term is today -- when I was a vocational instructor, they were retarded), while 61 is just low normal, and 70 is probably considered relatively normal? It is very difficult to use a rather vague measure, given the appearance of precision by being numeric, to establish clear cut lines drawing people into groups. But, as my argument can be made without delving into this mess, let us ignore it for now. (You can read some writing on the other end of the scale in my criticism of Mensa and the tendency to confuse IQ with infallibility in "Mostly Off Topic" and "A Thought on Intelligence".)
I covered this before in a postscript to "Fair or Functional?", but I feel the need to clarify one more time, as what I wrote could lend itself to misunderstanding. The basic problem is that I sometimes describe my approach to punishment as "pragmatic", or, when I am thinking more consistently, as "utilitarian". Both suggest a philosophy I criticize strongly, and were the description the whole story that would be a valid criticism.
However, in this case, I am not arguing for choosing punishment by a strictly pragmatic approach, that is picking an arbitrary goal and selecting a route that appears to lead there without thought of other consequences. When I say "pragmatic" I mean that punishment is intended to accomplish a single goal, and so the approach should be judged solely in terms of its success in reaching that goal. While specific punishments may help achieve other secondary goals, those need to be discounted, unless two approaches are equally effective, in which case other goals may be considered.
I think the problem here is that all the theoretical work was done in my early debate, where I established the purpose of government, the nature of human rights and the rest. ("Negative and Positive Rights", "Symmetry and Asymmetry in Government", "My Vision of Government", "My Vision of Government Part II", "Man's Nature and Government", "Prelude") Those established, if not explicitly, the ideas behind criminal law and punishment. I then fleshed out that argument in my discussion of the general nature of criminal justice. So, by the time we reach the debate over what form of punishment to apply, there is no theoretical debate left, but only technical details to work out. And that is why I can call the argument pragmatic without drifting into the sort of political pragmatism I criticize.
Perhaps some day I will write a more detailed post on pragmatism, and include a description of the cases where something approaching pragmatism is appropriate and the remaining times when it is not. But for now, I think this and the earlier discussion cited above give enough clarification to avoid any confusion.
At least I hope so.
There are three objections I can imagine to my position on functional punishment. First, that the argument is dangerously close to the argument offered for the modern tort system, which I find so deplorable. Second, that the argument creates some incredibly unjust possibilities, which not only should frighten anyone, but could actually occur in reality, rather than simply being disturbing possibilities. Finally, there is the question of juvenile cases, which seem destined for relatively harsh results given the results-oriented logic I employ.
First, let us look at the example I find most troubling, the apparent similarities between this approach to punishment and the modern tort system. Basically, the original tort system had two principles. First, it was intended to do no more than restore the status quo ante, that is to make the injured party whole. It was not a system intended to deter or punish, only to remedy damages to the degree possible. Second, it was a system of absolute last resort. In almost every case, contractual agreements ruled, and any injuries were controlled by contractual agreements. Only in the case of true accidents between strangers, auto accidents, accidental injury to passers by, and similar incidents was the case in the realm of torts, and even then, only the immediate actor, the proximate cause, could be held liable. While one could logically argue that a more remote actor was the "true" cause, the courts were obsessed with limiting liability, keeping it predictable, and so liability was kept very narrowly constrained to those who had direct contact with the injured party.
But torts changed. (For another look at this topic see "The Problem With Tort Reform" and "Red Herring".) First, contracts were gutted, as contracts threatened a broader tort liability by creating a means to voluntarily assign liability in advance. ("In Praise of Contracts ") Afterward, torts were reformed to act as , in the words of the founders of the new system, "social insurance". They believed that torts should not serve only to make whole the injured, but to deter misbehavior and negligence. And so, they set about not trying to make the culpable reimburse the injured, but to require payment from those in the best position to prevent the injury, in order to deter future harm.
This sounds unfortunately similar to my description of the purpose of punishment, but I think there are substantial differences. First, the tort system combines guilt and punishment in one phase, and so it adjudicates blame based on probability of preventing harm, while my view of criminal justice establishes guilt first, and only once guilt is established does it consider the likelihood of deterring crime. So, while criminal justice only effects the guilty, the tort system can easily ignore those more to blame to punish those less culpable simply because they have deeper pockets. In fact, the theory of torts tends to very rarely end up actually protecting anyone, but instead becomes a hunt for the deepest pockets justified by the pretense of preventing harm.
But there is an even better argument, which highlights the difference more clearly. The problem with modern torts, as I explain in several essays, is that it produces an unpredictable environment, where actions can be perfectly acceptable, but which can later bring about liability becaus eof a misdeed by someone later in the chain of production or distribution. On the other hand, my approach to punishment is entirely predictable. Yes, punishment may become more severe, or less, but it is known in advance what will bring punishment, and punishment can be avoided by simply avoiding crimes. That is not the case with torts, where a perfectly permissible act can later be found worthy of punishment.
And so, though the terminology sounds the same, it is simply coincidence. The modern tort system and my view of punishment have little in common. There is nothing but a superficial difference.
Moving on to the second objection, it could also be argued that my logic may lead to seriously unfair situations, as the theory itself could argue for excessively severe punishments for minor infractions. For example, if we could say that giving 20 year sentences for petty theft would prevent crime, we could end up with petty criminals serving long sentences.
However, that overlooks a few simple points that make my system much less likely to produce unjust results. First, and most significantly, I am not considering here our current criminal justice system, but one which is concerned solely with preventing the violation of rights, that is one concerned entirely with preventing acts which deprive another of life, liberty or property.("My Vision of Government", "My Vision of Government Part II", "Man's Nature and Government", "Prelude", "Negative and Positive Rights", "Symmetry and Asymmetry in Government", "Planning For Imperfection") Thus we are talking only about those crimes which are traditionally common law felonies, theft, murder, assault, battery, arson, rape and similar. I think it is safe to say that were someone convicted of one of these crimes, no one would be too upset were their punishment to go from 10 to 20 years, or something similar.
The second point to consider is that punishment is for felonies. Misdemeanors, including theft of small amounts, are generally limited by statute to punishment of a year or less, and I do not intend to change that system. Just as with the "three strikes" statutes which are in effect in many states, my plan for reasonable preventative punishment would apply only to major crimes, and not, as some critics would have us believe, granting "life sentences for stealing a slice of pizza."
Which brings me to my final point. While I would ideally see all my government reforms implemented, this system could be imposed on our current criminal justice system, at leats provided the scope of crimes was kept limited to those crimes truly related to attacks upon individual rights. but if the system were implemented in the ideal form, we must also bear in mind that criminal questions are, ideally, state questions, and so each state would have a different idea of how to implement punishment. ("Why I Am Not A Libertarian", "The Benefits of Federalism") As a result, over time, the most effective systems would proliferate. Those which both did best at preventing crime, while most pleasing the citizens, would spread to neighboring states, or others, and over time the best solutions would come to predominate. And that would make it quite unlikely such unjust situations would arise, as those sort of solutions would fall quickly out of favor and find themselves replaced.
Which brings me to the final question, that of juvenile justice. And critics would be right, in a manner of speaking, in assuming that the logic of my approach would argue for relatively harsh juvenile sentences, as that would be most likely to deter juvenile crime. However, that thought overlooks a more important question, how is guilt determined for youth? Yes, if youth were to enter into the adult system, they would be subject to the same rules, but the courts are also free to divert children into alternate systems, as well as to alter the definitions of guilt for the young. And so, whatever the logic of my approach for adults, the courts are free to impose a different one for children.
Of course, we would need to then ask ourselves how juvenile justice should be handled. What approach will produce the ebst results, and what approach is consistent with our visions of the rights and culpability of the young. It is a complicated question, I grant, and one we have repeatedly handled badly. But it is not one which my current essay resolves, and so, for the moment, I will defer the question and simply point out that there is nothing in my approach requiring any specific juvenile sentencing.
My wife and I earlier had another somewhat related conversation. She mentioned how most psychological theories seemed so non-scientific. They were basically one person's ruminations on the topic, which were then applied without any objective tests to determine their validity.
I agreed, though I did point out there are sometimes tests applied for validity, but they usually test based on the concepts of the model used, so they are only valid if the theory is valid. In other words, they do not prove anything if the theory is false. (Eg. A Freudian analyst talking about moving patients beyond an anal-retentive stage as a success is meaningless as a measure if the Freudian theory as a whole is incorrect.)
I did not mention it at the time, but it reminds me of one of the more interesting comments I ever read on philosophy. It is a bit unfair, as some philosophies do not meet the description, but as so many do, it is quite an entertaining quote.
The author Stanislaw Lem, speaking in the persona of his protagonist in His Master's Voice mentions that he could never understand philosophy. The reason being that the author would go from one personal observation to another, holding forth each as an "obvious" truth. The problem being at some point the philosopher's "obviously" and the narrator's diverged, and the philosophy no longer made sense.
When I read that, I thought of my first reading of The Myth of Sisyphus. I used to joke in college that the book read as follows: "Man's soul is like a desert, and so it must have a cactus, which means there are thorns, so stay away from souls or you might get pricked!" And, honestly, that was always how I saw it, as a book so caught up in its metaphors it forgot what it was describing, ending up drawing absolutely absurd conclusions as a result.
And much modern philosophy falls into the same category. With much of the rest falling into sterile games based on meaningless formal logic systems. There are a handful of exceptions which use rational methods and well established truths to create solid foundations, but unfortunately, most such philosophies tend to be only roughly sketched out by social scientists and economists who use them as a foundation for their specific interests. Philosophy itself has had a dearth of substantial rationalist thought for well over a century. In fact, as the Utilitarians were far from profound, I would argue two centuries since we had any really meaningful rationalists. (Rand may be the single exception, but as she sometimes managed to mistake bias for reason, and formed a following too much like a cult, I am not sure she did not do more harm than good.)
In any case, my wife's complaint struck me as a good one, and one I shall look at in detail later. Though, to be fair to psychology, a lot of modern thought in social sciences is the same, based on personal musings without foundation or proof. Psychology is hardly unique. On the other hand, it was one of the first to delve into the area of opinion and introspection as substitutes for facts, so it may deserve a bit more attention.
In any case, such an analysis will be forthcoming, and we can hash out all those questions then.
There is likely one other post forthcoming. As I wrote this post I discovered how chaotic my writing on the topic has been. As the defense of rights is such a significant part of government's proper functions, we really need to understand it better. Perhaps even reject some of my older conclusions. And so, when time is available, I want to go back and write a single post combining all my thoughts on the subject, maybe even drawing some new conclusions. So please watch for that post as well.
Originally posted in Random Notes on 2010/06/13.