Fear and loathing redux
Radley Balko at Reason magazine argues that the close association between democratic politics and crime policy results in a vicious cycle of fear-mongering, excessive incarceration, and intergenerational poverty. He cites a Boston Globe article that reveals a tendency for undue and irrational pessimism and fear among the population. I explored the problem of irrational fear in a previous post, where I noted that there is often a gap between realistic and imagined levels of danger. In the case of crime, it is extreme. Although crime has been declining since the mid-1990s, 74% of Americans insist that crime is getting worse.
Balko’s solution to the vicious cycle is to divorce crime policy from the political process. Today, many judges and prosecutors in America are elected officials and as a result have been hijacked by public demands for tough sentencing. In most other countries, these jobs, which are technical in nature, are held by more-or-less impartial civil servants.
In any fair legal system, judges are supposed to be impartial, and so there is an argument for taking direct democracy out of the legal system. But we should be leery of technocracy more generally. There is a danger to having too many degrees of separation between the public and its agents. While public sentiments can certainly hijack policy for the worse, so can interests that have no accountability whatsoever to the public, with the results being systematic corruption and abuse.
In a complex society, we will always have to tread a fine line between technocracy and democracy.
-Charles
Image by Flickr user bitzcelt used under a Creative Commons Attribution License
Bullied and pranked to death
BBC News reflects on the shock and outrage following the death of a Rutgers student who died after an apparent incident of cyberbullying. The perpetrators face up to five years in prison for invading privacy. They might also face additional hate-crime charges. Depending on one’s perspective, these penalties may be just adequate or nowhere near enough.
What makes the difference between cases of murder from unintentional death and injury via bullying? The law differentiates betweens murder, which is carefully planned and premeditated or done with reasonable probability of deadly consequences, and manslaughter where there is no prior intent to kill. It is easy to make the connection between deaths from bullying and other causes of accidental or semi-accidental death. Indeed, the public outrage over the incident hints very strongly that many people would like to see charges of involuntary manslaughter applied in this case.
But there are good reasons that manslaughter has yet to be applied to cases of bullying (particularly cyberbullying). As John Schwartz writes at the New York Times, the issue of bullying is complicated, especially in an age where certain kinds of privacy are easily compromised by the rapid flow of information. It is often not possible to predict when and how petty malice will have enormously tragic results because of how the victim reacts. Bullying, pranks, and humiliation are common, even by adults. Some instances are benign, others not, but they only rarely result in death or serious harm.
Whether or not you think that suicide resulting from bullying should be treated as manslaughter, it’s hard not to share Governor Christie’s wonderment at how the two perpetrators can sleep at night.
-Charles
Image by Flickr user cx1uk used under a Creative Commons Attribution License
I don’t sanction that
The BBC reports that the United States has imposed sanctions on key Iranian officials for human rights abuses dating from the crackdown on anti-government protesters in the summer of 2009. The sanctions consist of travel bans and asset freezes. As far as diplomatic tools go, sanctions like these –small, targeted ones- are mostly symbolic in nature and morally uncontroversial. They will at least inconvenience the miscreants in question a little, and likely will not hurt any innocents.
But the same cannot be said of sanctions in general as diplomatic tools. Without so much as a shot fired, economic sanctions can be just as destructive as wars and just as capable of harming the innocent. More than that, they rarely accomplish policy goals in their own right, although they might make some goals easier to attain in at least the short run.
When we discuss sanctions of the kind that target whole nations, we are really weighing the morality of collective punishment against the desirability of certain policy goals. Maybe the price will be worth it. Maybe not.
-Charles
Image by Flickr user ajagendorf25 used under a Creative Commons Attribution License
The death penalty may be constitutional, but is it justified?
The United States Supreme Court has refused to overturn the execution of a Virginia woman who conspired with two accomplices to murder her husband and stepson. The legal debate that has emerged around the case concentrates mostly on whether the woman, who is borderline mentally disabled, deserves a harsher sentence than her accomplices, who each received life sentences.
But there is a broader issue at stake here. Recall the justifications for punishment – incapacitation, retribution, rehabilitation, and deterrence. The death penalty does incapacitate criminals – terminally – but so does a secure prison. It is certainly an expression of society’s disgust and vengeance (retribution).
But does it deter? Deterrence depends in part on the probability and severity of punishment. The death penalty is so seldom exercised in the United States that the case for its deterrence effect is a questionable one.
Perhaps the deterrence effect would be more meaningful if people were executed more often. But there is a very dark undertone to this suggestion: the justice system is by no means infallible, and entrusting matters of life or death to it does carry real risks.
And even if we sincerely believe that there are monsters among us that don’t belong among the living, we must seriously consider whether the danger of wrongfully executing the innocent is outweighed by the benefit of ensuring the guilty get their just deserts. The cost of retribution and deterrence may not be worth the benefit.
-Charles
Image by Flickr user johnmuk used under a Creative Commons Attribution License
When punishment isn’t enough
In the latest episode of the War on Drugs, about 10% of the Mexican federal police have been fired for corruption or failure to perform their duties. Many face additional criminal charges. Perhaps some federales will now think harder before dealing with the cartels.
As Jake has described, punishment serves four purposes: retribution, rehabilitation, deterrence, and incapacitation. In the case of the federales, deterrence was probably the prime motivator.
But how effective is deterrence? For a criminal, the severity of punishment is one of three things to consider. The other two are the likelihood of being caught and the reward for carrying out the crime.
In the course of policing, a government can affect two of these factors: likelihood and severity of punishment. But affecting only these two factors may not be enough. Until recently, the Chinese government was routinely executing officials found guilty of malfeasance, yet corruption remains stubbornly entrenched.
This is because the potential rewards for abusing power might be so great as to trump dangers to life and limb. A simple cost-benefit analysis tells us that if the potential reward for a crime is great enough, then many risks may be justified.
In Mexico, the continued existence of a lucrative underground market provides irresistible opportunities to some people; in China, a lack of transparency in the political system does the same thing.
Punishment surely has its place among the means a society uses to control miscreants. But lasting solutions to corruption might require that we think more about eliminating the rewards that make corruption attractive.
-Charles
Image by Flickr user Foto Martien used under a Creative Commons Attribution License
Crimes against humanity: with oppression and injustice for most
For his role in 16,000 deaths during the Khmer Rouge, Kaing Guek Eav, alias “Duch,” was recently sentenced to 35 years in prison. That he may walk free in 19 years at the age of 86 due to time served has baffled and infuriated Cambodians. The worst tyrants of the last century mostly escaped formal justice (Hitler, Stalin, Mao); others did die in ignominious circumstances and were effectively the victims of mob violence (Mussolini, Ceausescu, arguably Saddam). Duch’s case and surprisingly light sentence brings to mind the perennial question of justice for politically-motivated atrocities.
We seem to know what crimes against humanity are when we see them. But the story is often more complicated in places like the most impoverished parts of the Third World, where politics is a life-or-death affair. Interest groups are divided along ethnic, class, or religious fault lines and power is a means to extract resources for the favored group at the expense of all others. An old Kenyan aphorism holds that to seize the machinery of the state means that “it is our turn to eat.” In these cases murder, rape and torture may become routine tools of political intimidation.
How do we evaluate crimes against humanity and the justice that should follow when the only clear distinction between victim and victimizer is that the latter is stronger than the other, and when it seems likely that the other side would behave just as monstrously if the circumstances permitted?
-Charles
Photo by Flickr user Sebr used under a Creative Commons Attribution license
Is it ok to publicly embarrass suspects?
On Tuesday Jamaican drug lord and gang leader Christopher Coke was arrested in Kingston. The next day, his mugshot photos were all over the Jamaican (and international) news. The kicker: Coke was dressed as a woman — wig and all (photo here). It’s increasingly common for criminals on the run to masquerade as women…and for their captors to let the world know they were dressed as such. Given that such pictures causes a huge amount of public embarrassment to the suspect and that they are, remember, just suspects, should governments be allowed to release cross-dressing mug shots? embarrass
-Marc
Do enemy combatants take checks?
How does cost affect where we should house suspected terrorists?
The Washington Post ran a detailed article today on the $500 million that has been invested in renovations at the Guantanamo Bay base that has housed many of the enemy combatants we’ve captured since the 9/11 attacks.
Among the more amusing expenditures:
The cost of the marquee, along with a smaller sign positioned near the airfield: $188,000. Among other odd legacies from war-on-terror spending since 2001 for the troops at Guantanamo Bay: an abandoned volleyball court for $249,000, an unused go-kart track for $296,000 and $3.5 million for 27 playgrounds that are often vacant.
It’s always easy to cherrypick seemingly useless expenses to show waste, although an abandoned go-kart track really does feel egregious. Also, I’m not sure playgrounds are as fun when you are cuffed and hooded. Or maybe slides and tunnels are a new “enhanced interrogation” technique. Ok, ok, enough bad one-liners.
The real concern is the disparity between Guantanamo’s $150 million annual operating cost and what it would likely cost to house these prisoners on U.S. soil. The Post cites a White House estimate that Guantanamo costs “double the amount for a comparable U.S. prison.”
There have been some interesting arguments about whether it would be appropriate to move suspected terrorists to a U.S.-based maximum-security prisons. The main debate was whether such a move would put American lives in danger.
But the spending issue adds a new and important perspective. There’s little question that safety arguments tend generally to trump waste arguments. If moving these prisoners to the continental U.S. really would significantly risk American lives, the best argument would be to show that keeping the prisoners in Guantanamo actually puts more lives at risk (or increased the risk level for the same number of lives).
If the risk is relatively low, the spending level (the Post estimates about $2 billion total) really does trade-off with other morally good things. Today’s Los Angeles Times reported that political pressures heading into the midterm elections have even many Democratic lawmakers leery about education and unemployment expenditures expected to be taken up by Congress.
If I were a father of four, I wouldn’t want Guantanamo-USA near my hometown. But if I’ve been unemployed for a year, I might need my unemployment check.
How should we choose?
-Sam
Life-without-parole for juveniles
Rules, standards, and individualized justice
In Graham v. Florida, the Supreme Court yesterday outlawed life-without-parole for juveniles convicted of nonhomicide crimes, holding that such sentences violated the 8th’s Amendment’s prohibition of “cruel and unusual” punishment. The argument involves two steps, neither of which involves much explicit political philosophy. First, following Roper, the Court looks at State practices to assess the prevalance of the given punishment. While it may seem odd to examine current policies in order to determine timeless constitutional principles, the concept of “cruel” maybe and certainly that of “unusual” are indeed somewhat contextual. Second, the Court examines the 8th Amendment’s text, history, meaning, and purpose, which means applying previous Supreme Court cases. Embedded within this interpretative second step is some genuine political philosophy. In the end, the court held that a juvenile could indeed have the maturity and moral culpability to deserve life-without-parole for a nonhomicide crimes, but that the process of delineating these individuals from the greater number that don’t have the requisite culpability is fraught with error. And to such a degree that the Constitution demands a categorical prohibition for the class of juveniles as a whole.
To be clear: Following the court’s logic, without the categorical prohibition, many juvenile would receive unjust sentences, because they don’t have the requisite moral culpability; but then again, with the prohibition, some will received lighter sentences then they deserve. It’s the old issue that when you draw a line and set a hard rule, it will be in some ways over- and under-inclusive. Whereas before there existed a standard in those states without their own prohibitory rule, now there is a national rule for all States.
From an abstract philosophical perspective, it makes sense to have standards for punishment, so each person can get exactly what they deserve. But in the real world, standards leave open the door for inequality (unequal time for the same crime), corruption, and bias, such that individualized justice is better served by a categorical rule.
-Jake
Miranda rights and wrongs
Attorney General Eric Holder announced this weekend that the Administration will seek to loosen the terrorism exception to Miranda rights law, allowing law enforcement even more flexibility to interrogate terrorism suspects before reading them their Miranda rights. Not surprisingly civil liberties advocates are not happy. So what do you think? Should there be more of an exception for suspected terrorists? Or is the law already flexible enough? How do we balance our desire for security with our belief in civil liberties?
-Marc
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