“Soft,” or just smart?

The latest Economist has a ”Lexington” column on new strategies for crime control, focusing on low-arrest drug market crackdowns, High Point style, and probation enforcement, HOPE-style.   It’s a fairly perceptive piece.

But, oddly, “Lexington” thinks of these rather relentless approaches to enforcement as “soft,” because they treat punishment as a cost rather than a benefit.  To my mind, unwillingness to punish is soft; unwillingness to punish to excess is simply smart.

“Lexington” is also eager to claim me for the anti-retributivist camp.

The debate about crime is often emotional. Voters want vengeance. Politicians oblige. Barack Obama supports the death penalty even though he believes it “does little to deter crime”. It is justified, he says, because it expresses “the full measure of [a community’s] outrage”.   Such reasoning is widespread, but Mark Kleiman, the author of When Brute Force Fails: How to Have Less Crime and Less Punishment, argues that it is unwise. The only good reason to punish, he says, is to prevent crime, either by locking criminals up so they cannot reoffend, or by deterring others.

Not precisely.   The book does indeed argue that the suffering punishment inflicts on offenders and those who care about them is always a cost and not a benefit, and therefore can only be justified by some good result.   But when  punishment expresses outrage in a way that changes attitudes about the wrongfulness of the underlying act – as more severe punishment of drunk driving and domestic violence surely has done – it has a crime-control effect not reducible to incapacitation and deterrence.    (This point is  discussed in Chapter 6.)

Moreover, while the logic of crime control ought to play a larger role than it now does in shaping enforcement and punishment, it is not the case that crime control is the sole legitimate purpose of the criminal justice system.  As Donald Black shows in The Behavior of Law, it is very nearly a cross-cultural constant that the amount of punishment inflicted for a given offense tends to rise or fall with the social status of the victim.   Thus a light punishment reflects, and reinforces, the low value the community assigns to the person on the receiving end of the crime, and by extension to other people of similar background.  (One tragic fact about the American criminal justice system is that it has always under-punished crimes against black people, or committed in black neighborhoods; that, I claim, is one cause of the high crime rates that devastate the African-American community.)

Thus retribution is not some atavistic instinct; it reflects the social logic of status and punishment.  The notion that the community owes it to the victim (and the victim’s family and neighbors) to punish the perpetrator – thus asserting in action that the victim was not one whose rights could be ignored with impunity – shocks the consciences of many law professors and moral philosophers, but it strikes me as almost self-evidently true.

The shift from weregild or private revenge to punishment by the state no doubt represents an important social advance.  But it ought to be thought of as a bargain, with the state standing in for the Lord and saying to the victim and his family, “Vengeance is mine; I will repay.”  That bargain, once made, must be kept.   Otherwise we have the opening scene of  The Godfather, where the undertaker goes to Don Corleone for the vengeance the state has failed to provide.

Comments

  1. JMG says

    "That bargain, once made, must be kept. Otherwise we have the opening scene of The Godfather, where the undertaker goes to Don Corleone for the vengeance the state has failed to provide."

    So unsolved crimes and crimes where there's not sufficient evidence to prosecute means that the state, having failed to honor "that bargain" is responsible for vendetta? And, by extension, whenever I am a crime victim and feel that the state has failed to fulfill the deal, such as with laxity, I can go see a guy about having the criminal taken care of? Good to know!

  2. K says

    Sorry, I know this isn't esp. helpful for well-formed, but I was a bit unsure about the basic normative orientation underlying the book, & I'm still not entirely clear. You evidently don't take a purely consequentialist position, but you do seem most comfortable w/ consequentialist considerations – you say here that costs can only be justified by consequences – & it's not yet clear to me how, for example, desert relates to them. As a practical matter, people will want assures about retribution, even where allegedly victimless crimes are concerned.

  3. says

    "punishment expresses outrage in a way that changes attitudes" I confess I haven't read the book, but is there good evidence that upping the punishment for a crime changes attitudes towards? The reverse causality is fairly obvious — stir up concern about a crime, and harsher punishments will follow. But the other way round? I thought that MADD and groups concerned with domestic violence worked on both fronts — public opinion and legislation. I'd be curious to see how researchers untangled the causality.

    (Also, you have typo — he for the in the next-to-last paragraph.)

  4. Mark Kleiman says

    JMG, I was describing a mechanism, not endorsing it. The more the state fails to provide retribution, the more people will resort to self-help. If you don't want Don Corleone, then don't leave a role for him to fill.

    K, the normative orientation underlying the book is that costs must be justified by benefits (which include avoided costs). But the costs and benefits ought to be evaluated at the level of policies, not at the level of individual acts. This is, after all, a repeated game rather than a one-shot game. That's the answer to all the ethics-class paradoxes about "But what if torturing someone, or executing an innocent person, had benefits exceeding its costs?" It wouldn't, because of the value we place on living under a reasonably just and law-governed regime.

    Reducing crime (and crime avoidance costs) is the primary benefit to be sought from criminal-justice programs, but not the only one; I take satisfying the reasonable demands of the victim and those who care about him for retribution as a benefit, and frustrating those demands as a cost.

    As to desert, it is necessary to justify punishment, and therefore constrains punishment. If there's any originality in the moral stance of the book, it's the combination of (1) acknowledgement of retribution as a legitimate aim of the system and (2) denial that the suffering of the offender is somehow good in itself.

  5. Mark Kleiman says

    Jay Livingston, the mechanism I propose for the effect of punishment on attitudes is cognitive dissonance. Yes, the empirical work is hard to do.

  6. Joe S. says

    Two notes:

    1. I agree that any affect that punishment may have on attitudes is not reducible to incapacitation or deterrence. But it does seem to be a form of rehabilitation, albeit at the social, rather than the individual level. (For those not into criminal law, the logic of criminal punishment is traditionally analyzed as: deterrence, rehabilitation, incapacitation, and vengeance.) Since deterrence has both a social and an individual effect, why not rehabilitation?

    2. "As Donald Black shows in The Behavior of Law, it is very nearly a cross-cultural constant that the amount of punishment inflicted for a given offense tends to rise or fall with the social status of the victim." Makes sense. Financial intermediaries tend to get big penalties for gross violations of securities law, but much smaller penalties for violations of consumer law. Securities law protects investors; consumer law protects consumers.

  7. K says

    My confusion is partly verbal. Are all benefits consequences, or can punishment be intrinsically beneficial, regardless of its consequences? (I understand we're evaluating policies – rules – rather than acts, but is this rule consequentialism?) Is the only benefit of a reasonably just & law-governed regime that the community wants it? Mightn't something like the fanaticism problem in utilitarianism arise (on either side of the argument)?

    If desert constrains punishment, it's simple to say I shouldn't be punished more than I deserve, no matter the benefits. (Cf. Texas v. Willingham.) But if I deserve more punishment than is beneficial – presuming this isn't ruled out by definition –, if the desert constraint isn't binding on benefits, should I get what I deserve?

    To the extent problems in policy reflect unidentified (until now) tradeoffs between harshness & crime control, this isn't a problem. But I'm afraid we can't completely avoid the political force of the desire to punish beyond all measure of benefits.

  8. Mark Kleiman says

    A "benefit" is simply a desired consequence, measured by someone's willingness to pay for that consequence.

    In my view, desert puts an upper bound on punishment, but no lower bound.

    Retribution (which considers what is owed to the victim, not the offender) may establish a lower bound.

    Of course politics sometimes leads to unjust and inefficient results.

  9. David Kaib says

    "But, oddly, “Lexington” thinks of these rather relentless approaches to enforcement as “soft,” because they treat punishment as a cost rather than a benefit. To my mind, unwillingness to punish is soft; unwillingness to punish to excess is simply smart."

    What does "soft" mean here? I generally discount talk about being "soft on crime" as being meaningless political rhetoric. I get that you are criticizing how we punish, not whether, but I'm not sure "soft" has any actual semantic content in this context. Given that it is normally used to promote excessive punishment (often with greater emphasis on status,) it seems worth rejecting this sort of language.

  10. K says

    Thanks for the clarification. So we have a straightforward constrained maximization problem, & should choose the maximum if it lies between the retributive lower bound & the desert-based upper bound. Otherwise a side constraint governs. (If the retributive bound > the desert constraint, there's no eligible solution.) For this to be a complete story about how policy should be decided, there needs to be an account of how the constraints should be fixed. (E.g., independently of the community’s tastes concerning punishment?) It’s a common criticism of consequentialism that certain consequences – in utilitarianism, certain tastes, e.g., for oppression or mayhem – ought not to count, & it's at least true that no simple account in terms of the inherent requirements of efficiency or instrumental rationality forces us to give equal weight to some Joe's fanatical desire to torment minor offenders, or some villain's fanatical desire to be free of punishment.

    I should probably think before I say anything more.

  11. JMG says

    Except that what you describe:

    "The more the state fails to provide retribution, the more people will resort to self-help. If you don’t want Don Corleone, then don’t leave a role for him to fill."

    Could be called a "retribution gap," the difference between the judicially awarded punishment and the punishment deemed sufficiently retributive (punitive) to the observer. Note that there is no absolute referent here — the cruder, more bloodthirsty or "tuff on crime" is the sentiment of the observer, the more retribution is required, in order to preclude Don Corleone.

    Which is what brought us to our collapsed state today with a tsunami of incarceration breaking the bank all over and that idiot sheriff in NM in order to service the media-stoked outrage, which is a fire that never stops being fed.

    I'm sorry if I seem to be dense, but you seem to be saying that if there was widespread popular sentiment for bastinado then, by god, bastinado it is, lest people resort to self-help.

  12. Dennis says

    JMG,

    That idiot sheriff is Joe Arpaio, of Maricopa County, Arizona. We have enough problems here in New Mexico without being saddled with Sheriff Arpaio.

  13. says

    Mark: "The shift from weregild or private revenge to punishment by the state no doubt represents an important social advance." The classic expression of this view (I'm not taking a position on it myself) is the final play of Aeschylus' great Oresteia trilogy, "The Eumenides". The Furies are balked of their retribution on Orestes for his crime of matricide – driven by a ghastly family cycle of private vengeance – by Athena presiding over a court of Athenian citizens. But the bargain is that they are ensconced in a temple in the Acropolis: retribution is a central part of the criminal justice of a democracy. I once tried to interest Kosovars in this play, without success.

    BTW, while we're on weregild, will anybody speak up (against Aeschylus and Mark) for restoration as one of the goals of criminal justice? It's obviously more feasible for crimes against property than against the person, and would offend against the idea of strictly equal treatment for similar offences, but within limits, what's wrong with the idea?

  14. Shirley Blaylock says

    It is a fact that there are idiots and liars.

    Just because someone makes that statement about another individual does not make it a fact, only an opinion.

    Sometimes it is a good idea to let someone know how you see him/her. It is an opportunity for self examination.

    We are all in the habit of paging on by things we are not interested in reading so why censor?

    Of course it is your community so you get to decide who has free speech.

    • Mark Kleiman says

      Shirley, I'm trying to avoid the flamewars that make so many comment sections unreadable and drive away people who don't like mudfights. Most people can't just "page by" insults directed at themselves. So I plan to enforce the rules. Mr. Reinhardt is now banned.

  15. says

    Weird. My own beliefs tend to rest largely in the retributive camp (while hoping for rehabilitation, too), but I didn't find the book to be anywhere near anti-retributive in its orientation. I wonder whether Lexington actually read the book? I don't say that to be snarky, but I do find that often times people will read about a book or a paper and make certain conclusions based on excerpts of even particular words/phrases.

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