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.