A while back I asked a hypothetical question geared towards determining whether punishment in the pursuit of justice is a good even if it does not deter crime (or indeed, makes it more likely). It’s tempting (and perhaps accurate) to argue that tough sentencing and just punishment acts as an effective deterrent, but would we still support if that weren’t the case? If rewarding crime worked, would it be a policy worth pursuing even if it offends our sense of justice? My hypothetical question was in pretty extreme form where the price for just punishment in terms of recidivism rates was exceptionally steep. So steep that nobody thought it was worth it, though Phi said that he was willing to accept some additional crime for the sake of justice being done.

Econoholic, on the other hand, argued that punishment is a necessary evil and should not be applied at all absent some practical motivation. The need for justice – for society to see that evil is punished – is something that ought to be resisted:

[Trumwill] is asking whether the behavior of punishment is a good in itself. It is not. Punishment is an action taken to achieve a good. A safe society has social value. Punishment has no intrinsic value. It is only valuable inasmuch as it helps us achieve a safe society.

As far as punishment for the sake of punishment, I agree. But after spending a few weeks thinking about it I have come to the conclusion that punishment as it relates to justice, on the other hand, is a good in itself. Even if it has no deterrence value. Even if there are no external negatives: no vigilante injustice, no increase in minor misbehavior resulting from disrespect of the law. Nothing negative beyond the emotional frustration of being watching justice fail to be done.

It is Holic’s position (as best I understand it) that the thirst for punishment/justice was imbued in us primarily for utilitarian reasons and that without the utilitarian aspects of it, it is an inclination that ought to be resisted. So then we’re left with a choice. Either everybody is happy or the just are happy at the expense of the unjust. This assumes, however, that (a) the thirst for justice is something that can be successfully held off or (b) that unhappiness derived from this desire being unmet is illegitimate.

I agree with Holic that the thirst for vengeance ought to be resisted to a degree. I oppose the death penalty on this basis (as well as others) and believe that we should not take delight in, for instance, prison rape even when it comes at the expense of someone convicted of something far worse. The Constitutional blockade on cruel and unusual punishment is another marker of good resistence. Our need for justice must be tempered.

But I don’t believe that it can be wholly disregarded. I don’t believe that the choice is between a happy population that resists a thirst for justice with happy criminals that learn from compassion bestowed upon them (or are otherwise receptive to bribery) or a happy population and unhappy criminals. I don’t believe that everybody can be happy.

So the question is whom we choose to make unhappy. Holic seems to be placing that burden on the vengeful just. They are the ones that need to change their attitudes if it’s the case that their attitudes fail to prevent (or perhaps increase the likelihood) of crime. And maybe there is something to the notion that these people are best equipped to resist their negative impulses. It’s hard to expect criminals to since resisting negative impulses is not exactly their specialty.

To me, however, I see no reason (absent negative results) why we should place a burden on the just and not place a burden on the unjust to simply accept their punishment as having been deserved. If we’re going to be placing the burden of changing attitudes, that burden ought to be placed on those that have done bad things. No, I hold no illusions that criminals are going to actually decide that being imprisoned is a-okay because they had it coming.

But I don’t think that it’s much more likely that you will convince people that coddling criminals and forsaking justice is a-okay, either. People who have had wrong done to them want to know that the person caught will pay a price for it. After all, they paid a price for the criminal behavior because now they have to replace their car stereo. Even if you could convince them that institutional compassion (or bribery) lead to the same or better objective results, it’s too much to ask them to feel good about it.
So with everybody being happy not being possible, all other things being equal make the criminals unhappy.

Of course, that assumes that all other things are equal. In the case of my hypothetical where coddlinng and educating and being super-duper nice to the criminals makes it far less likely that they will commit crimes in the future, I am willing to dispense with justice for the sake of preventing crime. That guy whose stereo was lifted will be upset, but those whose stereos were not lifted when that guy got out won’t be as upset and everybody would enjoy safer streets*.

Even so, I do feel strongly enough about the need for justice that I would accept some measurable increase in crime for the sake of the sense among the public that justice is being done. I am not a particularly vengeful person (anymore), but do think that if I had the choice between having my car broken into 4 times and knowing that each and every time the criminal was caught and punished and having my car being broken in thrice but knowing that if caught the bad guy is going to attend some Positive Mental Attitude classes and be on his way. I don’t know how much crime I would be willing to tolerate for justice, though. It’s not much (it’s not 50%, despite my example), but it’s something.

In addition to a few more crimes being committed, I would also be willing to pay more in tax money for the sake of punishment being landed on the unjust. Of all of the arguments against the death penalty, I consider the weakest to be that it costs more. So what if it does? It could be worth it. It obviously isn’t worth it to me or people who oppose the death penalty anyway, but we all know that even if the death penalty were cheaper than housing criminals for the rest of their lives that it wouldn’t change our perspective. I’ve simply never met anyone whose support of or opposition to the death penalty really, actually came down to dollars and cents.

On the other hand, if it cost a million zillion dollars to execute people or to house them without executing them, that might get people’s attention. I’m not sure how much tax money I would be willing to spend just as I am not sure how much more crime I would be willing to tolerate.

These are all very hypothetical questions. All other things are never equal. But I think that these hypothetical questions are important because they prevent people from coming up with alternate ways to justify their personal preference. Non-hypotheticals often get bogged down in details and speculation as to what other things would happen with everybody believing most of the bad things that could happen if their preference denied and disbelieving the bad things that would happen if they were implemented. Then, before you know it, everybody is citing the statistics that prove that their moral and philosophical preferences are also the most practical.

So the good thing about hypothetical questions is that they clear through all that. It helps us know why we really believe what we do believe. It’s useful to know, for instance, that even if I could be assured that an innocent man has been and could not be executed that I would still oppose the death penalty. Similarly, it’s useful to know that even if a utilitarian case can’t be made for punishment that I would still support it at some level.

* – This is assuming that there is no substantial increase in first-time offenses and that the lower recidivism rates do actually result in less crime in the long run. Web maintains that recidivism is a poor measure for such things. Maybe it is. That’s not the point of this discussion, though.


Category: Courthouse

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