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05/27/2015

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Katrina--

A great month of posts that give me a lot to think about.

It seems to me that punitive practices cannot be detached from over-arching socio-economic policies that govern (literally) how chronically disadvantaged members of society are dealt with, or are failed to be dealt with. Our present practices seem to troll behind political realities--the retributivist attitudes of the 80s-90s in the US that gave us three-strikes and supermax prisons from which we only now start to wake up to in terms of horrible consequences (though mostly still parsed as economic). Certainly part and parcel of what constitutes proper punishment is connected to what we think are proper policies for offering what we can socio-economically to pre-criminals. If society treats those most vulnerable and susceptible to moral and criminal depravity poorly in the first place, then that just leads to a distortion of what the results of that poor treatment will be in the eyes of the de facto less disadvantaged--they will typically be harsh because they don't see the injustice (and even encouraged by profiteers of that societal structure to do so). So to get punishment right, we need to make sure that society at large agrees what is really the right social policy for the disadvantaged. And at present we're a long way from consensus on that.

Here's where I think Neil's arguments for the pervasiveness of luck could have large-scale political effects if they could be made persuasive for the hoi polloi. And I think they would favor your direction of argument, though I would take a pragmatic direction for the justification of all of it on something like compatibilist FW/MR grounds.

Hi Katrina, you're not allowed to write posts that are impossible to disagree with! Skeptics, libertarians, and compatibilists can agree that we need to fix our broken system of punishment. We should find ways to increase the momentum in that direction. See, e.g.: http://www.macfound.org/press/press-releases/macarthur-announces-20-jurisdictions-receive-funding-reduce-jail-use/?j=208563&e=enahmias@gsu.edu&l=71_HTML&u=13627158&mid=6231922&jb=0

Hi Alan, thanks for your great comment. I agree, in spades.

Punishment policy ought to be constructed in conjunction with our social policies – particularly those that impact the poor and at risk – in mind. And social policies ought to be constructed with a clear understanding of how the lack of social goods impact criminality. If we fail to offer basic healthcare, childcare, education, welfare, and job opportunities to the least advantaged members of society, they (1) are less likely to have legal means to support themselves, so criminal activity is more appealing; (2) are less likely to internalize law such that they see it as a personal reason for action (see my discussion of this with regard to the Baltimore riots here:
http://pleasandexcuses.com/2015/04/28/why-is-baltimore-burning/); and (3) may have less capacity to use diachronic agency to conform themselves to the law even if they are so motivated (due to both psychological and environmental factors).

I believe in a hybrid theory of justification for punishment (something close to limiting retributivism) and I don’t think retributive sentiment in response to a serious felony is likely to be nullified by many of these factors. But we ought to legislate more judicial discretion and mercy, throw out minimum sentences, and embrace community-based sanctions. Especially for property and drug crimes, which are particularly susceptible to 1-3 above.

And of course, we ought to offer basic healthcare, childcare, welfare, and a decent education to all.

Hi Eddy, Ha! Pretty smart move given this is probably my last substantive post. :)

But in all seriousness, yes, philosophers, let's focus on the locus of our agreement for once and try to get involved.

Nicole (Vincent) and I are talking about doing a program at the Cook County jail like the ones discussed here: http://dailynous.com/2014/04/15/teaching-philosophy-in-prisons/. Anyone interested in getting involved, especially those close to Chicago, should contact me.

I also take my philosophy of law classes to the jail and criminal courthouse as a means to raise awareness. Philosophers with JDs can get involved via their Bar Associations. There ought to be a way to get the American Philosophical Association involved, if it isn't already. I'll look into that.

I'd also encourage early career philosophers interested in issues of law, justice, and punishment to do research in applied ethics and write papers/books with pragmatic implications. As a former criminal justice analyst, I can tell you that in-house research is often censored in keeping with governmental goals or limitations. Cutting-edge research calling for big changes has to be issued from a university setting and is often funded with private money (so great MacArthur has money on the table). Bill Hirstein and I will be writing on some of these issues with the money we received from Al Mele/Templeton to study self-control.

This summer I think I'm going to set up a page on my personal blog with information on how philosophers can get involved in efforts to decrease incarceration rates and increase alternative sentencing. I'll let Flickers know when I get something up and running.

This was an awesome post Katrina. I agree completely with your suggested changes. I've very much enjoyed this series on MR. Thanks for that.

Thanks, Izzy, and thank you so much for all of your very insightful and intelligent comments!

Katrina - what everybody said. I like the way the post dovetails with your emphasis on diachronic self-development. There's political leverage to be had here; the slogan practically writes itself: teaching responsibility: we're doing it wrong.

Hi Katrina,

Here's a thought experiment, posed to the group.

Suppose that you end up being investigated and convicted for a Federal crime. Obviously non-violent--maybe something associated with taxes. When all is said and done, you end up sentenced to 2 years at a low-security Federal prison. But then, to your surprise, the judge offers you an alternative. Instead of going to prison, you can undergo a single 2 hour waterboarding session. Your criminal record will then be cleared.

Now, let's assume that the waterboarding is going to be intensively medically supervised, and isn't going to cause you any long-term psychological or physical harm. It's just going to be *extremely* unpleasant, unpleasant in a way that can only be described as "torture"--which is how the various journalists that have tried it have described it.

Which would you choose, the low security prison camp, or the waterboarding?

Obviously, you would choose the waterboarding. The question thus follows: if waterboarding is excessively cruel as a punishment, and if almost anyone would prefer waterboarding over incarceration, then how can incarceration not also be excessively cruel as a punishment?

I know, I know, there's a flaw in this question, specifically in the use of the term "cruel." For if I asked people whether they would submit to 2 hours of waterboarding in exchange for $2 Billion, most would say yes. But that doesn't mean that *not* giving $2 Billion, or taking $2 Billion away from them when they owe it in restitution, is cruel.

But the question does highlight a tension. There is nothing superficially gory or sadistic about incarceration, so maybe we don't call it cruel, but there is certainly grave harm involved--harm that would vastly exceed the harm of a 2 hour waterboarding session.

What kinds of harms are we thinking about with incarceration?

(1) Career -- Done

(2) Family -- Big impacts, people suffering that don't deserve it.

(3) Time Lost -- 2 yrs of your life not spent on things that matter to you.

(4) General Pains of Incarceration -- 2 yrs of terrible food, forced to work for free in some crappy job, having to share limited resources with dysfunctional fellow inmates, dealing with verbal disrespect and abuse from arrogant, desensitized COs, having your body and your daily movements controlled by the state, which angers and humiliates, lack of adequate recreational stimulation, and most importantly, just generally missing normal life, especially family. There will be visits but they will be bittersweet.

For the 2 hour waterboarding session, the only harm is:

(1) Pain--LOTS of it, physical and psychological, packed into a very short period of time.

The choice is a no-brainer. You would clench your fists and find a way to deal with the waterboarding.

The sociologist Peter Moskos of CUNY has written a fantastic book on this topic: "A Defense of Flogging." He also has some talks on youtube that are very interesting, where he engages the non-retributivist crowd. In lieu of waterboarding, he proposes flogging, which is obviously less controversial and terror-inducing.

I think Moskos' proposal would be very interesting to analyze from the perspective of your work on punishment and virtue theory. It seems that a virtue theorist who believes in the idea of retribution for its own sake, but who also believes that we must respect the agency, personhood, end-in-itselfness, and so on of the offender, and who believes that despite the offense, the offender's eventual building good character, flourishing, self-realizing, and so on are desirable things, should want to see the requisite, deserved amount of pain inflicted with the minimum possible collateral harm (at least the kind of harm that would be considered harm in virtue theory). And the indisputable fact is, on that measure, corporal punishment does a vastly better job than incarceration.

So we have the four goals: (1) rehabilition, (2) incapacitation, (3) deterrance, (4) retribution. The problem is that we try to put all of these goals together into one package, and it doesn't work very well. The proposal then is that we separate (3) and (4) from (1) and (2). We try to accomplish (3) and (4) via court mandated restitution (fines, punitive damages paid to victims) and corporal punishment, and we try to accomplish (1) and (2) via mandated education and pro-character service, and, if necessary, committal.

Prisons would then become like hospitals for dangerous people, and we would satisfy our fetish for vengeance the old-fashioned way, with the whip. The corporal punishment would be consensual, with each lash canceling out some amount of prison time. Those who prefer prison to the lash would simply serve their time. The consensuality of the punishment, along with the fact that flogging was the normal mode of punishment for the country when the Constitution was written, would prevent 8th amendment issues. Flogging may be unusual, but it is not cruel AND unusual, especially when consensual.

The cost of corporal punishment is a tiny fraction of the cost of incarceration. So an added benefit would be that state and federal budgets would improve significantly, opening up funding for more productive causes, which would in turn reduce crime.
The biggest benefactor to corporal punishment, of course, would be justice itself. As you've mentioned, an offender's incarceration is a sentence that is inflicted not only on the offender, but on citizens that are completely innocent--in particular, family members who depend emotionally and financially on the offender's presence in their lives, and that suffer at the loss of access to the offender.

Interestingly, people with chronic physical pain conditions often struggle with the fact that no one else appreciates the pain they are in. No one else can see it. The experience then becomes lonely and isolating. But in a punishment context, this is actually a *good* thing. We want the pain to be lonely--an experience that others do not appreciate. Because if they were to appreciate, they would suffer in empathy. The family would not be at the flogging, and so they wouldn't share in its agony. Of course, they would be thinking about what the offender was going through, while it was happening, but if they knew the offender was going to come home safely, as good as new, the pain of knowing that he was *temporarily* suffering would not be as dramatic.

As far as deterrence is concerned, the only empirical evidence we have on the deterrence value of flogging is the testimony of former slaves in the late 19th century. As ugly as this sounds, their testimony suggests that flogging was an *extremely* effective deterrent, especially for those that had already experienced it once. Imagine some horrifying pain--for example, getting your sensitive hands and fingers whipped with a metal wire on a freezing winter day. I would imagine that threat of something like that would be a very effective deterrent to future transgression.

Now, I don't know about you, but when I was a kid, I definitely preferred getting whipped (corporal) over getting grounded (incarceration). I would have gladly taken large amounts of whipping to avoid weeks of not being able to play outside. The concern, then, is that flogging may not be enough of a punishment to satisfy the retributive impulse. The person takes several whips, feels intense pain for a short period, the wounds heal, and the person is able to go back to a normal life. We may not be comfortable with a person getting off that easy, especially when the victim doesn't get to recover in the same way.

But the flogging doesn't have to be a one time thing. It could be scheduled to recur--maybe over an entire lifetime. Consider the example of Ross Ulbricht, serving LWOP for setting up Silk Road. That was an absolutely ridiculous sentence, but if it is the revenge that the court wanted, we could have come up with a better alternative for all parties--especially his grieving mother. The alternative would be, not a single lash session, but a lash session that recurs every 90 days, potentially for the *rest of his life.* He comes in, we whip him, administer medical treatment to ensure that his wounds close and heal, and then he goes back to his life. We use close electronic monitoring to prevent any further wrongdoing. To assuage his indirect victims, which would be the families of people that died from overdosing on drugs purchased on Silk Road, we could send them the private videos of the lashes occurring, every 90 days, for as long as they want to stay involved. If he doesn't comply, he goes back to prison.

In exchange, he would get to continue to be a part of the world, maintain family and communal ties, contribute economically, make restitution with his victims where they desire it, and develop as a person. This, as opposed to being sent off to some dysfunctional penal colony to sit around waiting to die, at taxpayer expense.

Neuroscience could eventually help here. It could eventually allow us to administer unpleasant physical or psychological pain without inflicting any damage whatsoever to the body--just go right to the target, the brain. That would then allow us to use whatever frequency of corporal punishment we wanted, without worrying about whether wounds are sufficiently healed or not. Of course, this is an area in which to tread through very carefully.

I think we need to make a distinction here--and I sense one in your writings--between pain and harm. What does a virtue theorist want out of a purely retributive punishment? Does she want to make the offender feel some amount of pain over some period of time? Or does she want to see the offender suffer harm--as an agent, a person with responsibilities to himself and to the world? The latter--the view that certain people should be harmed purely for the sake of harming them, because the harm is deserved--is hate, and it doesn't fit well with virtue theory.

Hi Jesse, very interesting stuff, and I agree that harm for harm's sake ought not sit well with the virtue theorist. Retributive punishment may communicate societies' values to an offender, make the offender realize or think about the harm they have committed, and even cause him to be sorry he has committed it. None of these has to have a clear forward-looking effect on the offender's future behavior (although we hope they do!), but yet the retributive theorist thinks they are important aims of punishment.

I'm not too keen on the idea of corporal punishment. As a parent, I believe in time-outs over spankings, because I think it allows me to apply some unpleasantness without terror or great fear (and the resultant psychological harms), and it doesn't make me seem hypocritical in my general command of non-violence. I can give a time-out from love, but I cannot cause great physical pain from a place of love, I think. And it may be that a child who might better internalize my rules (in that they take them to be a personal reason to act) in response to a time-out will be less likely to internalize them in response to violence punishment.

I have to think about this more, but I think application of corporal punishment may similarly undermine rule of law/internalization of the law, and promote a culture of fear and violence. I also think offenders, and all persons, have rights of autonomy that should apply even when they are a prisoner, which is why involuntary brain interventions on prisoners aren't okay. Offenders have a right to basic bodily health and autonomy, no matter what offense they have committed. Lashing violates this autonomy (as does rape and inadequate health care in prison).

You are right that we need to think hard about the difference between harm and pain, and the type of pains/harms we apply to offenders as a means of punishment. We don't pay close enough attention to the ancillary harms caused by incarceration now, which is why I am a big fan of community-based sanctions.

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