human rights promotion

Human Rights Promotion (20): Exposing Criminals

1887, NY, a group of men loiter in an alley known as Bandits Roost off Mulberry Street. Photo by Jacob A. Riis

1887, NY, a group of men loiter in an alley known as Bandits Roost off Mulberry Street. Photo by Jacob A. Riis

There are a number of private initiatives aimed at publishing personal information about convicted criminals. Websites such as CriminalCheck.com, ukpaedos-exposed.com, Lexbase.se and so on publish information about criminals’ place of residence after they’ve left prison, or even their contact information. Newspapers as well seem to make it a point of honor to mention personal details in their crime reporting. Sometimes the “criminals” are people who are merely suspected of a crime.

This kind of thing is said to be justified as a form of privatized human rights enforcement. If people know where criminals live or work, they can steer clear of danger and increase their physical safety or the security of their property. Public knowledge about ex-cons also serves to “shame” them – including some potential criminals – and that again is something which may reduce the risk of future crimes. In any case, the overall justification seems to be enhanced protection of the rights of possible victims through private crime prevention.

Purveyors of personal information about criminals claim that what they do is protected by free speech rights – including the right to access information. Maybe it is, but in that case we seem to have a conflict between rights. Criminals have a right to privacy, and information about their past convictions may well be part of their private lives. Publication of this information could sometimes also endanger some of their other rights, such as their right to work, to choose a residence etc. -given what we know about public harassment and discrimination of people known to have a criminal past.

What to do about this conflict of rights? Perhaps violations of the rights of criminals are an acceptable price to pay for the speech rights of the exposers and the rights of possible victims. Even violations of criminals’ right to physical security – given the possibility of violent retaliation by past victims or vigilante hotheads – may be viewed as an acceptable risk. Some even want to argue that exposing criminals is a matter of justice: too lenient court sentences can be corrected by private retaliation made possible by published information.

I guess most of us would agree that this goes too far. Even if we believe that sentences are too lenient, we shouldn’t view private retaliation as an acceptable justification or byproduct of public exposure of convicted criminals. I don’t think there’s a large constituency against the right to physical security for criminals who have served their time (or for those still serving their time). A reasonably well-functioning criminal justice system should take care of punishment. And when we don’t have a well-functioning criminal justice system, the obvious goal is to improve it, not privatize it.

The best case in favor of private efforts to expose criminals is based not on retaliation but on the rights of the exposers and of possible victims. You can make the case that criminals’ general right to privacy can sometimes be overruled in favor of the right to free speech of the exposers and the right to physical safety and property of potential victims.

On the face of it, that’s not a ridiculous claim. Different rights often contradict each other, and it’s quite common that some rights should give way to some other rights in certain specific cases. Neither is it ridiculous to claim that private initiative has in general a role to play in human rights promotion. However, I don’t think we’re dealing here with a good example of a helpful private initiative. For two reasons.

  1. Balancing acts between rights are treacherous and best left to professional judges. Convicted criminals – or anyone else for that matter – have no right to be free from shame or public humiliation but they do have a right to privacy and to be free from harassment and vigilante justice. We should take these rights seriously, even if – and perhaps because – we are dealing with the rights of criminals. These criminals have already paid the price for their crimes and should be protected against violations of their rights. An attack on their privacy should therefore be avoided if at all possible, especially if such an attack can invite further violations of their rights such as vigilante justice, work problems, family problems etc. It’s unlikely that a balancing act between the speech rights of the exposers and the rights of the criminals would be decided against the latter. A balancing exercise between the exposers’ right to free speech and the criminals’ right to privacy would almost always favor the latter. The harm done to the rights of criminals when favoring free speech rights is more important than the harm done to the rights of the exposers when favoring privacy rights.
  2. If you’re not convinced by this and you still want to make the case that criminals’ right to privacy should be limited for the sake of someone else’s free speech right, then you still face another problem. It doesn’t seem right that criminals’ privacy should give way because there’s a risk of future violations of property or security rights of others. There has to be more than a mere risk, and typically there isn’t in these cases. People engage in the exposure of criminals because of the supposed risk of having criminals close by, not because these criminals are actually engaged in crime.

More about this here, here and here. More posts in this series are here.

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human rights violations, law, most absurd human rights violations

The Most Absurd Human Rights Violations (135): Arrested For Overdue Library Book

enck

A Texas man … was arrested for failing to return an overdue library. … In October [2013], police were called to Enck’s Copperas Cove, Texas, apartment on an unrelated disturbance charge, but arrested Enck after finding a past warrant for an unreturned GED study guide. He was released on a $200 bond, then requested time-served. Enck, who has since returned the book, said he couldn’t bring it back initially because he was in prison. He checked it out before beginning a 3-year sentence for robbery. … 

[M]any communities faced with shrinking budgets and rising costs have ordinances calling for fines or even arrest warrants when library property isn’t returned. In Texas alone, the issue has cost libraries an estimated $18 million. (source)

When exactly did we forget that criminal punishment in general, and incarceration in particular, are about incapacitation and the protection of society? I guess we should all feel safer now, knowing this dangerous criminal is off the streets. And while this may be a rare case, over-incarceration is an endemic problem. Scores of people who are no threat whatsoever to no one are put in jail for petty crimes. Almost one in very 100 Americans is in jail.

I personally blame misguided ideas about deterrence and retribution. A fine, community service or some other “alternative” punishment doesn’t seem appropriate to people who believe punishment should fit the crime and deter future crime. Maybe if we understand that deterrence is a hopeless ideal and retribution is incoherent can we kick our prison addiction. But I won’t hold my breath.

Other posts in this series are here

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causes of human rights violations, human rights violations

The Causes of Human Rights Violations (57): Some Clues From the Broken Windows Theory?

broken window

(source)

The Broken Windows Theory (henceforth BWT) was first described by James Q. Wilson and George L. Kelling in a 1982 article. The idea is that social disorder – exemplified by a neighborhood where many windows are broken – fosters crime. Disorder sets certain destructive norms and signals that those norms are OK. Broken windows, even a few, that are left unfixed will soon come to represent a lack of accountability and judicial redress. Unrepaired broken windows are a signal that no one cares, and so breaking more windows costs nothing. Hence people will not refrain from breaking more and you’ll have a vicious cycle of disorder. This is a kind of lawlessness that will eventually also lead to bigger crimes.

If, on the other hand, a part of town is well-maintained, people will be less likely to engage in acts of vandalism there because they know that they will be held accountable if they do. The same is true for other types of antisocial behavior such as littering. Throw one thing away in a clean environment, and you’ll have the police at your door. Throw something on an existing pile and you’ll feel better.

The BWT can perhaps explain certain human rights violations. I see two ways in which it can: it explains crime, and most crimes are human rights violations; and perhaps the same broken window logic applies to human rights violations themselves: one rights violation that goes unpunished may start a sequence of impunity and repeated violations.

However, this means assuming that the BWT is more than just a theory and can be supported by facts. There’s some controversy as to whether it can be.

NB: Wilson’s Broken Window theory should not be confused with Bastiat’s theory.

More posts in this series are here.

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what are human rights

What Are Human Rights? (49): Universal Rights

utopia

Human rights are universal rights, rights that all human beings have for no other reason than being human. That’s almost a tautological statement, and one which has been repeated millions of times. Universality is implicit in the name. This sets human rights apart from other types of rights, such as legal rights which only matter to those subject to the particular jurisdiction in which these legal rights apply, or contract rights which apply only to the people bound by a particular contract.

Despite this definition of human rights, their universality is often contested. Does a person with Down Syndrome have the right to work? Does a newborn baby have the right to free speech? Does a criminal have a right to freedom of movement? Do all potential immigrants have a right to unemployment benefits? Does a terrorist who can order his colleagues to stop torturing three other people have the right not to be tortured? Questions like these are often rhetorical: the unstated but understood answer is “of course not”. People who ask these questions perhaps do so because they want to deny the universality of human rights, and this denial in turn may come in handy when they try to justify violating the rights of some.

There’s in fact an easy answer to this apparent paradox. The universality of human rights is, like human rights themselves not a fact but an aspiration. We have to work to make it a fact, all the time knowing that we’ll probably never get there. We have to work to improve people’s capacities so that they can more fully enjoy their rights. In the case of the disabled, we should recognize that disability, rather than an inborn or acquired lack of capacity, is in fact – in part at least – a capacity that is reduced as a result of the way in which we have chosen to organize society. In the case of criminals, we tend to assume rather too quickly that criminal punishment necessarily involves restrictions of people freedom of movement. And so on. None of the rhetorical questions cited above strikes a fatal blow to the ideal of universality.

More on universality is here. More posts in this series are here.

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law, vagaries of moral progress

The Vagaries of Moral Progress (16): Teaching Criminals a “Lesson”

wagging-finger

Let’s assume that we punish criminals in order to “teach them a lesson”: by imposing pain, suffering or unpleasantness on the criminal we intend to make it clear that he or she has done wrong and that we “as a society” disapprove. This lesson in turn is supposed to prevent criminals from reoffending, and hence it is intended to enhance respect for society’s rules. Punished criminals may not always internalize society’s rules and change their mentalities or criminal convictions as a result of “the lesson”, but at least the unpleasantness of “the lesson” will deter them from acting on the basis of their mentalities and convictions. In short, criminal punishment is a means to achieve moral progress. Perhaps if we’re lucky we’ll achieve moral progress in the minds of people, but if we don’t we’ll certainly see moral progress in people’s actions. Or so the story goes.

This is perhaps the most widely shared view of criminal punishment, which is weird when you think of it. After all, one can very easily identify numerous problems with this view. First of all, we impose criminal punishment for the violation of a wide range of rules, many of which we would not or should not view as moral rules. Some of those rules are perhaps even immoral: for instance, the rule against the use of soft drugs can be and often is seen as immoral because it restricts personal freedom. The imposition of punishment for the violation of such immoral rules is a clear step backward from the point of view of morality. No progress there. (The same is true for merely a-moral rules).

Furthermore, one can argue that many of the punishments we impose even for moral rules are in fact brutalizing. Prison is a school for criminals and prison crime is rampant. To argue that imprisonment deters crime and makes the world more moral is to deny the facts of prison life. Prisoners often just become better criminals and make others better criminals, both inside prison and upon release.

And finally, there are certain psychological biases present in those who impose criminal punishment, and these biases also undermine the story of “the lesson”. For example:

In graduate school at the University of Wisconsin-Madison, I proctored law school exams to earn extra money.  At the end of one exam, while I was collecting the final papers, I overheard two students discussing their answers on an essay question about sentencing.  One said to the other: “I gave the rich guy a lesser sentence because I figured, since he had such a cushy life, it would take less punishment to get through to him.” … the perception that Black people have already had to cope with a great deal of pain — from racism, poverty, poor health, etc — and, as a result, have a greater pain threshold. In other words, they are less sensitive to pain because they’ve been hardened.

Efforts to parse out whether this effect is due to race specifically or perceptions of whether a person has lived a hard life suggest that it might be primarily the latter. But … we tend to homogenize the Black population and assume that all Black people face adversity. So, whether the phenomenon is caused by race or status gets pretty muddy pretty fast.

In any case, this is perfectly in line with the soon-to-be-lawyer I overheard at Wisconsin. He gave the “hardened criminal” a harsher sentence than the person convicted of a white-collar crime because he believed that a greater degree of suffering was required to make an impact. (source)

The unfair imposition of punishment as illustrated in this case and in many other real cases of punishment makes a joke of the story about moral progress resulting from the “lesson” of punishment. I’m not saying that fair punishment, deterrence or internalization of rules are impossible. What I’m saying is that we are usually too optimistic about these processes and that we shouldn’t view our current system of criminal punishment as a good driver of moral progress.

More about criminal punishment here. More posts in this series here.

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human rights images

Public Humiliation as Punishment, A Collection of Images

All forms of criminal punishment are in some sense public humiliation of the criminal, but some forms are more so. The pillory is the archetypical tool:

Punishment of the Cangue

Punishment of the Cangue. A cangue is a device that was used for public humiliation and corporal punishment in China and some other parts of East Asia and Southeast Asia, until the early years of the twentieth century. It was similar to the pillory used for punishment in the West, except that the board of the cangue was not fixed to a base, and had to be carried around by the prisoner.

Two prisoners in pillory and another tied to whipping post below and man with whip in prison in Delaware, 1907

Two prisoners in pillory and another tied to whipping post below and man with whip in prison in Delaware, 1907

These appear to be "witches"

These appear to be “witches”, but I couldn’t find any other information about this image

A variation of the pillory:

Punishment for Foul-Mouthedness

Punishment for Foul-Mouthedness

Remnants of the practice still exist today. US judges in particular sometimes administer “alternative” punishments:

public humiliation walmart

This is essentially the same as the pillory: you have shaming and immobilization, albeit immobilization without restraints. Given prison conditions in the US, one can almost understand this type of punishment.

There are/were other forms besides the pillory. The “scold’s bridle” was a punishment designed to humiliate as well as to hurt. It took many different appearances but in essence it was always a metal cage clamped around the head with a built-in gag. Sometimes it included a bell which rang when the “scold” was paraded around the town. A scold was defined as a “troublesome and angry woman who by brawling and wrangling amongst her neighbors breaks the public peace, increases discord and becomes a public nuisance to the neighborhood”. It’s unclear why women were singled out, but the practice was most likely part of a pervasive culture of gender discrimination. It looked like this:

scolds bridle

scolds bridle

Speaking of bells, there’s also this image (I don’t know if it is an authentic interpretation of history):

forced labor

forced labor

Public flogging is another type of punishment as humiliation. It’s also still practiced today in some parts of the world. This is a whipping post in Delaware used to discipline African slaves:

African Slaves Whipping Post Delawar

The supposed justification of all forms of punishment by way of public humiliation is the need to “send a message” and express the norms of society. Humiliation is also believed to be a strong deterrent.

I haven’t mentioned public executions which have more or less the same purpose. Read about those elsewhere.

However, let’s finish on a lighter touch. Here the amazing Frank Zappa with “Whippin’ Post”:

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human rights and crime, human rights violations, justice, law, philosophy

Crime and Human Rights (19): Why Do We Impose Criminal Punishment?

Joseph Stalin's Mug Shots

ca. 1913 — The information card on Joseph Stalin, from the files of the Tsarist secret police in St. Petersburg. — Image by © Hulton-Deutsch Collection/CORBIS

(source)

It seems so obvious that we must punish criminals that we hardly think about the reasons why. And then when we do think about some of the possible reasons, we find that they are of dubious quality, and we start to wonder whether criminal punishment can be justified at all.

1. Retribution

The first reason that springs to mind is retribution: we impose punishment – i.e. pain, suffering or unpleasant consequences – because that is what criminals deserve. Punishment is a deserved and proportionate “repayment” for the crime that has been done. And indeed, the fact that wrongdoers deserve some form of proportionate punishment or unpleasantness seems to be a deep-seated intuition. But if we want to use this notion of retribution as a justification of criminal punishment, we need to define what exactly it is that a particular criminal deserves. Because if it turns out that we can’t decide, in a non-arbitrary way, what it is that a criminal deserves, then it’s useless to place desert and proportional repayment at the heart of the justification of criminal punishment.

And we can’t decide. We can’t determine which punishment fits which crime. Retribution naturally tends towards lex talionis (an eye for an eye). For two reasons: first because that is the easy answer to the question of deserved punishment, and second because of the origins of the word “retribution” (retribuere in Latin means to restore, to give back). However, the brutality of lex talionis is no longer acceptable these days, which is why retribution theorists have tried to find another, less brutal way of determining the deserved punishment. Proportionality is then considered to be a just retributive principle: the punishment must not be equal to the crime, but the gravity of the punishment must be proportional to the severity of the crime; more serious crimes should entail more severe punishments.

Proportionality, like the element of desert in the basic structure of retribution, is hard to argue with, but it’s also useless. It can justify any type of punishment because it doesn’t provide a non-arbitrary starting point or end point of severity. Hence, it fails to answer the basic question raised by retribution: which punishment fits which crime? If this question can’t be answered, then retribution can’t be a justification of criminal punishment.

True, retribution can still be used negatively: some punishments clearly don’t fit the crime, and are not deserved. A $10 dollar fine for a murder, or execution for shoplifting are examples. But a theory of punishment that can only say which punishment are not justifiable is clearly not a complete justification of criminal punishment. After all, such a theory doesn’t exclude the possibility that all punishments are not justifiable.

Stop Sign

(source)

2. Deterrence

With retribution out of the way, we can now consider an alternative justification of criminal punishment. We may decide to punish criminals because in doing so we instill fear in other – potential – criminals and therefore deter future crime. Punishment is then a means to protect society against crime. It’s a stop sign. And, like retribution, this seems to be, at first sight at least, a convincing justification. Like it is intuitively correct that a criminal deserves some kind of punishment, it is also intuitively convincing that people, when faced with the risk of punishment, will have a strong incentive to abstain from crime.

However, we again see that the initial appeal of this justification doesn’t survive closer scrutiny. First, there’s a lack of conclusive empirical evidence for the existence of a deterrent effect. Even the strongest possible punishment – death – doesn’t seem to deter. Part of the reason for this is the fact that crime often isn’t a rational calculation of risks, costs and benefits. And when it is, low conviction rates may have more weight in the criminals’ calculations than the severity or unpleasantness of unlikely punishments.

Another reason why deterrence cannot justify criminal punishment is its inherent immorality: to deter is to use people as means to reduce crime, and that kind of instrumentalization is morally unacceptable.

buster keaton in jail

Buster Keaton in jail

3. Incapacitation

If we can’t deter, maybe we can incapacitate, and justify criminal punishment on that basis. Incapacitating a criminal allows us to protect society without instrumentalizing the criminal (we don’t use the criminal and his punishment as a fear-instilling mechanism; we simply keep the criminal away from his or her future victims).

Again, being able to stop criminals from reoffending is intuitively appealing, but it isn’t enough to justify a system of criminal punishment. If we should decide that incapacitation justifies criminal punishment, we’re still left with the task of deciding the type of criminal punishment it actually justifies. Which actions are necessary and just forms of incapacitation? Like retribution or proportionality, incapacitation leaves open a very wide array of possible punishments: cutting off the hands of thieves, house arrest, ostracism, banishment, imprisonment, chemical castration, etc. A theory that can’t help us to choose among those options can’t possibly be a complete justification of criminal punishment. Ideally, we don’t want a justification of punishment that allows all or most types of punishment. And again, the fact that some forms of incapacitation are clearly not acceptable isn’t ground enough for a justification based on incapacitation, like the fact that some punishments are clearly not deserved isn’t ground enough for a justification based on retribution.

4. Symbolic confirmation of social rules

Perhaps a more promising justification of criminal punishment is based on the social role of punishment. When we punish criminals for their crimes, we may not intend to give them what they deserve, incapacitate them or deter others; we may instead engage in a bit of theater. Which, by the way, is also one of the reasons for having public trials. The public condemnation of wrong actions is a symbolic confirmation of social rules, and this confirmation has an educational function. It teaches people the values and norms of society, in the hope that they internalize these values and norms through repeated public and symbolic confirmation. Furthermore, the punishment of crimes affirms not just certain values and norms (e.g. don’t steal or murder) but the necessity of peaceful social cooperation and therefore the necessity of society itself.

Like desert, protection, deterrence and incapacitation, these are all fine objectives. However, a justification of criminal punishment based on its symbolic role faces the criticism of instrumentalization, as in the case of deterrence. Especially when the stated objectives – affirmation of norms and society – can be reached through other means.

5. Signaling

And the same is true for the justification of punishment based on the need for signaling. Society, and especially the representatives of society, need to show that they care about victims of crime. However, they don’t have to do so at the expense of criminals. Still less acceptable is the use of punishment as a signal of authority. Punishment can’t be justified when it is merely a manifestation of power by those in charge.

revenge-of-the-creature-uk-movie-poster-1955

revenge of the creature, UK movie poster, 1955

6. Healing and pacification

Punishment can be justified as therapy for the victims of crime, their relatives and friends, and even society as a whole. It’s a fact that punishment gives some satisfaction to victims, and responds to their sense of justice. It can also channel anger and revenge away from the more disturbing forms of those emotions, thereby preventing street justice and vigilantism. However, there’s a disturbing circularity to this justification: because people expect punishment, we should administer it, but because we administer it people continue to expect it. Also, when trying to channel emotions such as anger and revenge into socially acceptable forms we unconsciously promote them, whereas maybe we should try to limit those emotions as much as we can.

7. Rehabilitation

The rehabilitation of the criminal in the sense of his or her moral regeneration is no longer a fashionable justification of punishment. For several reasons: it’s expensive, and it upsets our sense of equal justice (successful rehabilitation can imply a radically shorter sentence). Also, some psychiatric excesses have been successfully ridiculed in movies such as A Clockwork Orange and One Flew Over the Cuckoo’s Nest.

In any case, the point is moot whether or not rehabilitation can be a successful justification of criminal punishment, since society has practically given up on it.

a_clockwork_orange_movie_image

Conclusion

It’s extremely difficult to find an acceptable justification of criminal punishment. Hence, I strongly suspect that this is one of those social practices that seems perfectly normal and acceptable to contemporaries but also one for which we will be universally condemned by future generations.

Unsurprisingly, given the lack of solid justifications, people start to look for other reasons explaining the persistence of the practice. There’s talk of the new Jim Crow and criminal punishment being used to maintain oppressive social structures. Maybe it’s time to reread Foucault.

Still, it’s uncontested that society can’t function and people can’t thrive without respect for certain norms, especially the norms included in human rights. Those norms are regularly violated, and a society has the right and the duty to enforce compliance. A rejection of this right and duty means tolerating victimization and rights violations. But if punishment isn’t the right way to enforce compliance, which is? We can’t just accept punishment and to hell with justifications, because punishments do impose costs, both on the criminals being punished and on society as a whole. Imposing costs without justifications isn’t the right thing to do. Also, an unjustified system of punishment will lack legitimacy and will therefore be ineffective, something which will further undermine its legitimacy.

Hence, we’re left with the following choice: look harder for a justification, or find an alternative, non-punitive system of norm enforcement (maybe a system that is able to prevent violations of norms). Only half-jokingly: why not give law-abiding citizens prize money?

More here.

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citizenship, international relations, law

Migration and Human Rights (46): The “Criminal Immigrant” Stereotype, Ctd.

fox news peddling the criminal immigrant lie

Fox News stirring up some anti-immigrant sentiment

As is often the case, there’s public opinion, there’s empirical reality, and there’s a lot of space between the two. One particularly harmful public myth is the one about the “criminal immigrant”. It’s harmful in several ways: it whips up support for immigration restrictions, which help to keep many foreigners poor, and it contributes to feelings of insecurity, which in turn lead to tough-on-crime policies and high rates of incarceration.

I’ve already argued several times before against this stereotype, but for some inexplicable reason my writing doesn’t seem to sway public opinion. Hence, here I go once again.

First, here’s U.S. public opinion on the matter (via the General Social Survey):

US public opinion on immigration and crime

Other countries have similar numbers:

Kitty Calavita’s recent study in southern Europe, for example, reports that in Spain in 2002 a national poll found that 60 percent believed that immigrants were causing increases in the crime rate, while a survey conducted in Italy found that 57 percent of Italians agreed that “the presence of immigrants increases crime and delinquency.” (source)

Now, the facts:

Both contemporary and historical studies, including official crime statistics and victimization surveys since the early 1990s, data from the last three decennial censuses, national and regional surveys in areas of immigrant concentration, and investigations carried out by major government commissions over the past century, have shown instead that immigration is associated with lower crime rates and lower incarceration rates. (source)

Some data are here and here. In the U.S., crime rates have gone down when at the same time immigration rates have gone up.

More posts in this series are here.

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most absurd human rights violations

The Most Absurd Human Rights Violations (117): Segregation of HIV-Positive Prisoners

prison rape

(source)

South-Carolina is now the only US State where HIV-positive prisoners are segregated in separate housing units with unequal program opportunities, inferior mental health care and fewer work options.

There’s absolutely no reason to do that, unless you want to maintain the reign of sexual terror that is still widespread in US prisons. AIDS is almost exclusively transmitted by way of sexual intercourse and needles. Segregating HIV-positive prisoners makes it easier for prison rapists to pursue their hobby. If you don’t know who’s positive and who’s not, you’ll think twice about raping someone. In the “HIV wards”, since they contain only HIV-positive prisoners, there’s also no more reason to refrain from rape.

Things like this make it hard to believe that legislators and prison authorities are not intent on making prison as horrible as possible.

More absurd human rights violations.

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causes of human rights violations, human rights violations, law

The Causes of Human Rights Violations (42): First is Best

prison photo

Psychological tests have shown that the first experience in a series of two or more is cognitively privileged. The order in which people experience things affects how they evaluate them: they tend to think the first option is the best.

Here’s an experiment showing how people decide that a criminal presented first is more worthy of parole:

Two criminals’ photographs, from the Florida Department of Corrections website … were used. Photos depicted 29 year-old males known to have committed the same violent crimes. Criminals were wearing identical correctional facility outfits; photos were pre-tested to be equally attractive and both expressing neutral facial expressions. …

Thirty-one participants … were asked to evaluate [the] two criminals and to determine who should “stay in jail” versus “be released on parole.” … [P]articipants automatically associated the first criminal with being more worthy of parole (rather than prison) compared to the second criminal. Regardless of which photo was presented first, it was the one presented first who was judged to be more worthy of parole. (source)

This is a form of order effect: people’s choices are often sensitive to differences in the order in which the options appear. (“First is best” is only one form of order effect; in some other cases, order effects show that the last options are privileged). As is clear from the example above, order effects can have consequences for human rights: if people are given parole on the basis of the psychological biases of those who decide rather than on the merits of the case, then equality before the law is done with.

It wouldn’t be very difficult to imagine and test other cases.

More posts in this series are here.

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human rights and crime, justice, law

Crime and Human Rights (18): The Cruelty of Life Imprisonment Without Parole

prison

(source)

My dismissal of capital punishment on moral grounds shouldn’t be understood as implying that this type of punishment is the worst possible one or that I’m ready to accept any other sentence in order to avoid executions. Life imprisonment without parole (LIWOP), for example, is often advanced as a good alternative to capital punishment and a means to convince people to drop their demand for that sentence. That makes LIWOP seem almost benign, which it isn’t. It’s particularly cruel, for reasons I discuss below.

That is why I tend not to argue as follows: capital punishment is bad because there is a less cruel punishment available – LIWOP – that does much of the things capital punishment is supposed to be doing (incapacitation, deterrence etc.). I argue instead that there are other reasons, beside overreach, not to use capital punishment. However, this post is not about those reasons, but rather about the reasons why we should also not use LIWOP.

Of course, “death is different” and capital punishment is particularly cruel. But LIWOP is also cruel, albeit mostly for other reasons. In one respect, it’s cruelty is similar to that of capital punishment. It’s irrevocable. The absence of parole means that “life” really is “life”. Of course, there’s often the possibility of clemency or appeal. But given the general “tough on crime” mentality among politicians and prosecutors, clemency for LIWOP cases is very unlikely, as are possible extensions of the right to appeal.

We also see, in the U.S. for instance, that clemency is more likely to be granted in capital cases than in cases of LIWOP since LIWOP is supposed to be “so much less cruel” (although also in capital cases the frequency of clemency is going down, most likely for the same “tough on crime” reason). Also, appeal procedures are much more developed in capital cases than in LIWOP cases. And when there is a successful appeal in a LIWOP case – for example because of new evidence of errors in the handling of the case - then these new elements are much less likely to be considered important enough to review the sentence, again because LIWOP is so much less “cruel”. Some people even argue that it is better to get a death sentence in the U.S. than LIWOP, because the appeals possibilities and clemency success rates are much higher. Especially innocent defendants have a much higher chance of getting their names cleared and escaping their sentence when they are convicted to die. Talking about irony.

Why does irrevocability make LIWOP particularly cruel? Some people say that LIWOP is a death sentence without an execution date. That in itself, however, may not make LIWOP cruel – you could say that all human beings are under a death sentence without an execution date, by the simple fact of human mortality. Still, LIWOP is a sentence to die in prison. It removes any prospect of change, rehabilitation or redemption. Whatever the prisoner does during his sentence, nothing is going to make any difference. Society tells these people that whatever they do, however much they try to redeem themselves, society’s not going to care. It’s not a sentence without an execution date, it’s an execution without a date: we basically tell these people that their lives are over. And we show this by withholding recreational and educational opportunities. Those resources, we say, are limited and better spent on prisoners who will get out some day. So that makes redemption not only useless but also impossible. It’s a self-fulfilling prophecy: we believe that they are irredeemable, and hence we treat them in such a way that they become irredeemable. If you don’t think that’s cruel, check your moral compass.

Opponents of capital punishment such as myself have to issue a mea culpa here. Our opposition has undoubtedly forced many more people into LIWOP. The number of LIWOP cases in the U.S. has risen dramatically, while the number of executions has fallen. One in every 35 prisoners in the U.S. is currently serving LIWOP (that’s about 41,000 people). This is the perverse and counterproductive result of well-intentioned activism. (See here for more counterproductive human rights policies). And it’s likely to become even more perverse: LIWOP cases, which tend to become more numerous as an alternative to capital punishment, don’t offer the same resources in terms of legal representation as capital cases, because people think there is less at stake, even when that’s clearly not true. Hence, a higher risk of miscarriages of justice, which are then harder to put right because of the lower probability of clemency and the less developed appeals procedures that also result from the idea that less is at stake.

So, what’s the solution? Well, obviously life with the possibility of parole. An argument in favor of LIWOP when compared to LIWP is that LIWOP is necessary for reasons of incapacitation. That is indeed a worthy goal of criminal punishment – if not the only goal -and some people do indeed deserve to be incapacitated for a very long time, perhaps even permanently. However, LIWP can also produce permanent incapacitation – by withholding parole when necessary – and can do it better because it can limit it to those prisoners for whom it can be shown, on an ongoing basis, that they are still dangerous. LIWOP means taking a decision about dangerousness once and for all, and then forgetting about the prisoner. The problem is that you can’t, at the moment of sentencing, make the decision that someone is going to be dangerous for the rest of his or her life. We simply don’t have the knowledge for such decisions. Psychology and psychiatry are not advanced enough yet, and will probably never be. Dangerousness has to be monitored continuously. People do change, except of course when the prison regime is such that they don’t get the opportunity or when the sentence is such that they don’t get the incentive.

And existing problems with parole (incompetent or lenient parole boards) are not a sufficient reason to favor LIWOP over LIWP. They are a reason to do something about those problems.

A country overview of the use of LIWOP is here and here. More incarceration statistics. More about human rights and prisons.

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capital punishment, law

Capital Punishment (46): “Looking Deathworthy”

stereotypicality of Black faces

That’s the provocative title of a new paper showing a correlation between the likelihood of receiving a death sentence and the perception of having a stereotypically Black appearance:

Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.

We already knew that both the race of the victim and the race of the defendant influence capital sentencing. Black defendants are executed more often than they should be in a system that pretends to treat all equally before the law and that ostensibly denies that racism should be allowed to determine judicial outcomes.

Now it seems that there’s a subgroup of African Americans who are treated even worse, namely those people who are perceived to have a stereotypically Black appearance (e.g., broad nose, thick lips, dark skin). People apparently associate those stereotypical physical traits with criminality. No surprise that this bias isn’t limited to capital cases:

Even with differences in defendants’ criminal histories statistically controlled, those defendants who possessed the most stereotypically Black facial features served up to 8 months longer in prison for felonies than defendants who possessed the least stereotypically Black features. (source)

Some more evidence is here. This form of bias has been called colorism, and it has effects way beyond the criminal justice system.

More posts in this series here.

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equality, human rights and crime, justice, law, philosophy

Crime and Human Rights (17): A Criminal’s Human Rights, Some Q & A

crime

(source)

1. Does the necessity of enforcing the law and ensuring compliance with the law justify extreme forms of punishment?

No. It’s not because you have committed a crime that you lose all your rights. The severity of criminal punishment should remain within certain bounds, and the need to be tough on crime doesn’t give you permission to do whatever it takes to be tough on crime. Most laws will never be respected in all cases anyway. A fetishistic attitude towards law enforcement isn’t helpful or necessary. Reasonably good enforcement is good enough. Convicting or deterring the marginal criminal is not a benefit that outweighs the harm done to the rights of criminals by the systematic imposition of extreme punishment (and extreme punishment has to be systematic if it is to have the required deterrent effect; punishing only one criminal in an extreme way won’t do any good, and some say that even systematic punishment has no deterrent effect).

strong arm of the law2. If extreme punishment is not allowed, is it allowed to punish like with like?

Again, no, and for the same reasons as those given above. Lex talionis is unacceptable. Human rights are not conditional upon respect for the law, and the fact that punishment inevitably leads to some rights restrictions doesn’t imply that criminals lose all their rights.

3. But if criminals, by being criminals, don’t forfeit their human rights, how can one justify punishments such a incarceration or monetary fines which incontestably violate criminals’ human rights?

Those punishments can be justified, not as violations of rights but as limitations of rights. We need to limit the rights of criminals in order to stop them or deter them from violating the rights of others. In this respect, criminals are not treated differently from someone who yells “FIRE” in a crowd.

4. Is it justified to impose more severe punishments for the same type of crime on people who are more difficult to deter?

No again. Like the need to deter or stop crime doesn’t trump the human rights of criminals, it also doesn’t trump the rule regarding equality before the law.

There’s a related post here about the human rights of Adolf Hitler. More posts in this series are here.

(image source)
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capital punishment, justice, law

Capital Punishment (44): The Retribution Argument Against Capital Punishment

Saint Nicholas of Myra saves three innocents from death

Saint Nicholas of Myra saves three innocents from death

Retribution is the last refuge of those seeking to justify capital punishment, given the failure of other arguments (deterrence, incapacitation etc.). Retribution is a punishment that fits the crime: the severity of the punishment should be proportionate to the severity of the crime. Intuitively, therefore, retribution should justify capital punishment for murder. Only death is a punishment that is as severe as murder. The Latin origin of the word “retribution” indicates that something should be given back or returned: someone “gives” death and hence death should be returned.

However, in theory, retribution does not necessarily mean that the punishment has to be strictly equivalent to the harm caused by the crime: some claim that retribution simply means that we must punish severe crimes more harshly than less severe crimes. Yet we see in practice that capital punishment as punishment for murder is defended on retributivist grounds.

Retributivists, ancient and modern, have always been lured by one or another form of lex talionis. (source)

There’s often an element of desert introduced in retributivist arguments. A murderer should be put to death because this punishment fits the crime, and because this punishment fits the crime, the murderer deserves to die.

So, given this “natural” tendency of retributivists to favor capital punishment for murder, how can it be possible to construct an argument based on retribution against capital punishment, as the title of this post suggest? Thom Brooks has made a highly interesting attempt here. It’s based on a decision by Judge Jed Rakoff ( in US v Quinones):

DNA testingWhat DNA testing has proved, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases. In each of the 12 cases of DNA-exoneration of death row inmates referenced in Quinones, the defendant had been guilty by a unanimous jury that concluded there was proof of his guilt beyond a reasonable doubt; and in each of the 12 cases the conviction had been affirmed on appeal, and collateral challenges rejected, by numerous courts that had carefully scrutinized the evidence and manner of conviction. Yet, for all this alleged “due process”, the result in each and every one of these cases, was the conviction of an innocent person who, because of the death penalty, would shortly have been executed (-some came within days of being so-) were it not for the fortuitous development of a new scientific technique that happened to be applicable to their particular cases. (source)

This should even convince retributivists that capital punishment has to be rejected. Even if you adopt the moral rule that murderers deserve to die you, shouldn’t apply the death penalty in practice because you can’t be certain that a particular defendant is really guilty of the crime and hence deserves to die. And there’s no point arguing that the systematic use of DNA testing gives you this certainty: first, it’s not always possible to use DNA tests, because the crime has to be of such a type that DNA traces are potentially available, and even if they are potentially available they may not be actually available; and second, we don’t know if DNA testing is accurate enough and won’t be discredited in the future.

You could also argue that the same lack of certainty is the case for all types of crime, and that rejecting capital punishment because of a lack of certainty implies rejecting criminal punishment tout court. Not quite: all other types of punishment allow for the possibility to correct mistakes resulting from uncertainty. Capital punishment rules this out.

And there’s another kind of uncertainty that militates against capital punishment and that should convince retributivists to reject it. The desert of a criminal is usually based on more than mere physical evidence of his actions. Intent also plays a part. Take the case of someone who caused the death of someone else by his actions – and let’s assume that we are certain about this, e.g. we have DNA evidence and we know that no future scientific developments will cast doubt on this evidence – but did not intend to kill. Many would argue that he doesn’t deserve to die. However, intent is impossible to prove because it requires reading someone’s mind, and hence we can never be certain that someone intended to kill. A desert based argument for capital punishment is void if desert includes intent.

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human rights ads

Human Rights Ads (79): Non-Public Execution

public execution

(source unknown)

It’s a bit of a strange one, this. I understand what they are trying to say: governments perform executions only because people acquiesce in them (don’t oppose them) or because they actively approve of them (this approval can be intellectual or moral, or it can manifest itself through active participation as viewers in the process of a public execution). If the public were to turn their backs on the whole affair – not because of apathy or acquiescence but because of opposition - then capital punishment would probably disappear, even in non-democratic states.

However, the image used here conveyes the opposite: people turn their backs, and governments are left in peace to carry on. In light of the massive presence of people at the scene, they could easily stop the execution if they had not decided to turn away.

But perhaps I’m reading this the wrong way. Other interpretations are welcome.

This, by the way, is the original image that inspired the ad. More on capital punishment and on public executions. And more ads.

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human rights violations, most absurd human rights violations

The Most Absurd Human Rights Violations (101): The Horrible Crime of Alcoholism

execution in Iran

execution in Iran

(source)

Amnesty International is urging Iran – a country known for its unemcumbered use of the death penalty- to halt the execution of two men (not in the image above) convicted for the third time of consuming alcohol. The men already have received 80 lashes for two previous convictions.

Article 179 of Iran’s “exotic” Penal Code provides for a mandatory death sentence following a third conviction for drinking alcohol.

What’s next? Life imprisonment for picking your nose in public? Forced labor for speeding? Decapitation for sorcery? Oh, I see …

More absurd human rights violations here.

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human rights violations, law, most absurd human rights violations

The Most Absurd Human Rights Violations (99): Private Prisons in the U.S.

buster keaton in jail

Buster Keaton in jail

As if the incarceration rate in the U.S. isn’t high enough already, the partial privatization of U.S. prisons creates some perverse incentives: the prison industry’s goal is to extract as much public money as possible by locking up the maximum number of people; this in turn fuels “tough on crime” policies and the insane war on drugs. Some examples:

The private prison industry was secretly involved in drafting Arizona’s harsh anti-immigrant law to boost demand for its immigrant detention centers. The Corrections Corporation of America has offered to help relieve the fiscal crises of 48 states by buying their prisons—provided the states sign a contract to keep them 90 percent full for the next twenty years, regardless of the crime rate. (source)

Not long after 11 September 2001, Steven Logan, the CEO of Cornell Companies (now part of the for-profit prison corporation GEO Group Inc) had good news for its shareholders. In a quarterly earnings call, Logan enthusiastically talked about tighter border control and a heightened focus on (immigrant) detention in the wake of the attacks. As he put it, “more people are gonna get caught. So I would say that’s a positive.” (source)

Note that more than 120,000 of America’s record 2 million prisoners are in private jails, plus a large number of illegal immigrants.

More on the problems created by excessive reliance on financial incentives here. More absurd human rights violations here.

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human rights and crime, human rights promotion, law, philosophy

Human Rights Promotion (7): The Human Rights of Adolf Hitler

Hitler on trial

(source)

Suppose Hitler didn’t kill himself and was captured alive by the Russians in Berlin, or by Israeli commandos in South America. What would we be morally allowed to do to him if we had managed to capture him? Does a person like him have human rights that we have to respect? Of course. Whatever dehumanizing name you wish to call him, he was a human being like the rest of us, and we have to deal with that fact. Every human being has rights and those rights are not conditional upon good behavior. No one has less or more rights than the next person. It’s not because someone has committed horrible crimes that we are allowed to take away his or her rights.

Hitler’s rights include a right to life. This right is quasi-absolute and can only be limited if that’s the only way to save other lives. So for instance, we are allowed to shoot him on the spot if he resists arrest and threatens to kill us or others (such as hostages). But suppose Hitler is captured alive and is no longer a threat to the lives of others. Shooting him is then not allowed because that would be an extrajudicial execution.

Hitler's corpse

Hitler’s corpse

Are we allowed to execute him after a proper trial? Maybe a living Hitler who’s kept in prison would still be able to encourage his followers to continue their murderous rampage and maybe that’s a sound argument for executing rather than imprisoning him. But I think that’s a far-fetched scenario. Only in the unlikely case that there is a real risk of an imprisoned Hitler ordering murder and that executing him is the only means to remove a threat to the lives of others, would his execution be allowed. This is equivalent to the case in which Hitler is holding hostages. However, even in this case, going after Hitler’s followers would be more effective.

So capital punishment is not an option. Remember also that other justifications of capital punishment aren’t available: we are not allowed to deter future criminals by killing present criminals, not even if it works, since that would be an instrumentalization of a human being. Going down that road ultimately leads to the devaluation of all human life. Life imprisonment without parole then? Not an option either because even Hitler can be rehabilitated. The problem with rehabilitation is that you never know who can do it until they do it. You can’t say in advance that some people are beyond rehabilitation.

Some form of criminal punishment is obviously warranted since Hitler acted with intent, knew the consequences of his actions, caused the consequences of his actions, wasn’t forced to act, was aware of alternative courses of action, violated existing law and was found guilty of such violations after a fair trial (ex hypothesi). Given the unavailability of capital punishment and life without parole, some fixed term prison sentence seems to be the only remaining option. And I know that’s a huge anticlimax for most of us.

But what do we want to achieve with that sentence? Retribution? Even if retribution is a justified end of punishment – which it isn’t since we should in general try to be better than criminals - a fixed term sentence is hardly retribution for Hitler: on any account, this is less than what he deserves. And more than this is ruled out (see above). Not only aren’t we morally allowed to execute him, but even executing him doesn’t seem enough. If anything, he deserves to be executed millions of times over, which we obviously can’t do even if we were morally allowed to do it.

Perhaps we want to achieve incapacitation. That’s reasonable enough in this case. You can hardly allow Hitler to walk the streets. But again, this is truly anti-climactic. It leaves us with our anger and sadness. But I guess there’s no way to leave our anger and sadness behind in this case. The morale of this story is that the same is true in many other, less extreme cases as well. We tend to be too ambitious when punishing criminals.

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capital punishment, law

Capital Punishment (41): The “Healing” Argument and the “Danger” Argument

Jesus in the electric chair

Jesus in the electric chair, sculpture by London artist Paul Fryer, titled "Pieta"

(source)

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but there are some other, less common arguments as well. There’s for example the argument that capital punishment is necessary for “closure” and “healing” of the victim’s surviving family and friends. Capital punishment is therefore viewed as a therapy. Apart from the doubts that capital punishment can serve this purpose – what does closure and healing mean and do they necessarily require an execution? – there’s a strong case that it shouldn’t be used for this purpose even if it can be: it would amount to crude instrumentalization of the criminal, even more than in the case of deterrence. Moreover, there’s a problem with cause and effect: if people are told that they need an execution in order to accomplish closure, then perhaps they’ll start to believe there’s no other way.

Another argument in favor of capital punishment is based on guesses about the harm that would result from failing to use this type of punishment. If we don’t satisfy the public’s blood lust - or call it “punitive emotions” if you want – the public will seek to satisfy it in ways that we wouldn’t like (e.g. lynching). However, there’s again a problem with cause and effect in this argument: the justice system does not merely reflect opinion about appropriate punishment, but also shapes it. Far from reducing blood lust, capital punishment may instead promote it. This is the so-called brutalization effect.

The basis of blood lust is moral outrage, and such outrage – contrary to blood lust - is often completely justified. And it should be recognized, but it can be in ways that don’t involve executions.

More on capital punishment is here.

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measuring human rights, statistics

Measuring Human Rights (27): Measuring Crime

violence

(source)

A number of crimes are also human rights violations, so crime rates can tell us something about the degree of respect for human rights. Unfortunately, as in most cases of rights measurement, crime measurement is difficult. I won’t discuss the usual difficulties here – underreporting by victims or relatives, lack of evidence, corrupt or inefficient police departments etc. Instead, I want to mention one particularly interesting problem that is seldom mentioned but possibly fatal for crime rate statistics: most reductions in crime rates are not really reductions, especially not those reductions that come about as a result of tougher law enforcement and higher incarceration rates. When we imprison criminals, rather than bringing crimes rates down, we just move the crime from society towards the prisons:

the figures that suggest that violence has been disappearing in the United States contain a blind spot so large that to cite them uncritically, as the major papers do, is to collude in an epic con. Uncounted in the official tallies are the hundreds of thousands of crimes that take place in the country’s prison system, a vast and growing residential network whose forsaken tenants increasingly bear the brunt of America’s propensity for anger and violence.

Crime has not fallen in the United States—it’s been shifted. Just as Wall Street connived with regulators to transfer financial risk from spendthrift banks to careless home buyers, so have federal, state, and local legislatures succeeded in rerouting criminal risk away from urban centers and concentrating it in a proliferating web of hyperhells. (source, source)

And there’s no way to correct for this and adjust overall crime rate statistics because quality statistics on crime rates inside prison are even harder to get than statistics on “normal” crime rates – given the quasi lawlessness of prison life.

More on prison violence here and here.

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measuring human rights, statistics

Measuring Human Rights (26): Measuring Murder

criminal

(source)

Murder should be easy to measure. Unlike many other crimes or rights violations, the evidence is clear and painstakingly recorded: there is a body, at least in most cases; police seldom fail to notice a murder; and relatives or friends of the victim rarely fail to report the crime. So even if we are not always able to find and punish murderers, we should at least know how many murders there are.

And yet, even this most obvious of crimes can be hard to measure. In poorer countries, police departments may not have the means necessary to record homicides correctly and completely. Families may be weary of reporting homicides for fear of corrupt police officers entering their homes and using the occasion to extort bribes. Civil wars make it difficult to collect any data, including crime data. During wartime, homicides may not be distinguishable from casualties of the war.

And there’s more. Police departments in violent places may be under pressure to bring down crime stats and may manipulate the data as a result: moving some dubious murder cases to categories such as “accidents”, “manslaughter”, “suicide” etc.

Homicides usually take place in cities, hence the temptation to rank cities according to homicide rates. But cities differ in the way they determine their borders: suburbs may be included or not, or partially, and this affects homicide rates since suburbs tend to be less violent. Some cities have more visitors than other cities (more commuters, tourists, business trips) and visitors are usually not counted as “population” while they may also be at risk of murder.

In addition, some ideologies may cause distortions in the data. Does abortion count as murder? Honor killings? Euthanasia and  assisted suicide? Laws and opinions about all this vary between jurisdictions and introduce biases in country comparisons.

And, finally, countries with lower murder rates may not be less violent; they may just have better emergency healthcare systems allowing them to save potential murder victims.

So, if even the most obvious of human rights violations is difficult to measure, you can guess the quality of other indicators.

More posts in this series are here.

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annals of heartlessness, law

Annals of Heartlessness (13): Deportation as Reward for Helping the Police

The Father's Curse or The Ungrateful Son, 1777 (oil on canvas) by Greuze, Jean Baptiste (1725-1805)

The Father's Curse or The Ungrateful Son, 1777 (oil on canvas) by Jean Baptiste Greuze (1725-1805). A son deserts his family, including an aged father, to join the army. The cursing father on the left reaches with outstretched hands to his departing son, while the female members of the family plead desperately. Even the baby clings anxiously to his brother’s coattails. The son stretches out his arm as he advances toward the door, where his bemused companion observes the scene.

“After everything I’ve done for you…”, a study in ungratefulness:

An undocumented immigrant who came forward to help police solve a high-profile murder is being rewarded for his bravery by being deported. … Currently being held at the Essex County Jail, Chehoud says federal immigration authorities ignored recommendations by New Jersey police and prosecutors that he be allowed to stay in the United States. … According to a recent article in the NY Daily News, the murder of Michael Augulis in 1999 would have gone unsolved if it weren’t for Chehoud’s aid to law enforcement officials. Originally called an accidental drowning in Sandy Hook Bay, Chehoud told police that two men in a fishing boat had thrown Augulis overboard, knowing he couldn’t swim. New Jersey State Police later arrested the two men, who pleaded guilty to manslaughter.

New Jersey police and prosecutors have pleaded Chehoud’s case, telling federal immigration officials that he was so critical to solving the case that he should be allowed to stay, not punished for coming forward.

Undocumented immigrants often avoid reporting crimes against themselves or others precisely because they fear exposing themselves to law enforcement officials. Chehoud’s treatment is likely to solidify that impression and discourage the undocumented from seeking out help when they need it. (source)

More on illegal immigration. More in the annals of heartlessness.

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freedom, horror, law, limiting free speech

Limiting Free Speech (47): Incitement to Commit Suicide

heartbreak

heartbreak

(source)

An interesting story in the press some time ago:

A former nurse from Faribault, Minn., was convicted of two felonies Tuesday when a judge ruled he had used “repeated and relentless” tactics during Internet chats that coaxed two people to kill themselves.

Rice County District Judge Thomas Neuville found that William Melchert-Dinkel, 48, “imminently incited” the suicides of Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Ontario. Drybrough, 32, hanged himself in 2005, and Kajouji, 18, jumped into a frozen river in 2008.

In a 42-page ruling that found Melchert-Dinkel guilty of two counts of felony advising and encouraging suicide, Neuville wrote that it was particularly disturbing that Melchert-Dinkel, posing as a young, suicidal, female nurse, tried to persuade the victims to hang themselves while he watched via webcam….

Neuville, in rejecting the free-speech defense, noted that inciting people to commit suicide is considered “Lethal Advocacy,” which isn’t protected by the First Amendment because it goes against the government’s compelling interest in protecting the lives of vulnerable citizens. (source, source)

I guess that’s correct, even though the case doesn’t really fit with any of the commonly accepted exceptions to free speech rights. We’re not dealing here with incitement to murder or a death threat – standard exceptions to free speech, even in the U.S. And neither is it speech that incites illegal activity – another accepted exception. Suicide isn’t murder and isn’t illegal (anymore). Abstract and general advocacy of crime and violence is – or should be – protected speech, but not the advocacy or incitement of specific and imminent crime or violence if this advocacy or incitement helps to produce the crime or violence. If speech intends to produce specific illegal or violent actions, and if, as a result of this speech, these actions are imminent and likely, then we have a good reason to limit freedom of speech. Examples of such speech:

None of these forms of speech should be protected, and laws making them illegal are perfectly OK. On the other hand, claiming that all politicians deserve to die or that people shouldn’t pay their taxes are, in most cases, forms of protected speech because they probably do not incite or help to bring about imminent lawless activity.

The problem is that none of this is applicable here. Suicide isn’t illegal, and neither is it violence as we normally understand the word. So, the commonly accepted exception to free speech rights that I just cited can’t possibly justify the conviction of Melchert-Dinkel. He did of course advocate, incite and cheer on his victims, and his advocacy, incitement and cheering probably helped to produce their suicides. But a suicide is not a crime or an act of violence. At least not as such. One could argue that the encouragement of a suicidal person should be viewed as a form of murder. And if that statement goes too far for you, you may want to consider the fact that causing someone else’s death is in general a crime, whichever way you do it. Moreover, if the victims in this case were suffering from depression or a mental illness, the state has a duty to provide healthcare, and allowing someone else to worsen their depression or illness to the point that they kill themselves is not consistent with this duty.

So, while the encouragement of suicide in general, the teaching the methods of suicide or the claim that non-suicidal people should go and kill themselves (“you don’t deserve to live”, “why don’t you just go and kill yourself”) are all forms of protected speech, the same is not the case for speech that encourages specific suicidal people to kill themselves.

More on the related topic of “assisted” suicide here. More posts about limiting free speech are here.

As a bonus, I can’t not post this image of what some have called the most beautiful suicide (a description that is in no way meant to glorify or encourage suicide):

suicide of Evelyn McHale

suicide of Evelyn McHale, photo by Robert Wiles

(source)

On May 1, 1947, Evelyn McHale jumped to her death from the observation deck of the Empire State Building, landing on a car. Here is a close-up of her face:

Evelyn McHale

Read the whole story here.

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equality, measuring human rights, statistics

Measuring Human Rights (23): When “Worse” Doesn’t Necessarily Mean “Worse”, Ctd.

Benny Hill

Benny Hill

(source)

Just because nobody complains does not mean all parachutes are perfect. Benny Hill

A nice illustration of this piece of wisdom:

Using state-level variation in the timing of political reforms, we find that an increase in female representation in local government induces a large and significant rise in documented crimes against women in India. Our evidence suggests that this increase is good news, driven primarily by greater reporting rather than greater incidence of such crimes. (source)

The cited “increase in female representation in local government” resulted from a constitutional amendment requiring Indian states to have women in one-third of local government council positions.

Since then, documented crimes against women have risen by 44 percent, rapes per capita by 23 percent, and kidnapping of women by 13 percent. (source)

crimes against women in India

This uptick is probably not retaliatory – male “revenge” for female empowerment – but rather the result of the fact that more women in office has led to more crime reporting. Worse is therefore not worse. A timely reminder of the difficulties measuring human rights violations. Measurements often depend on reporting, and reporting can be influenced, for good and for bad. Also, a good lesson about the danger of taking figures at face value.

Similar cases are here and here. More posts in this series are here.

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capital punishment, data, law

Capital Punishment (38): The Truth About the Deterrent Effect

mechanical brain

If I didn’t manage to convince you of the stupidity of deterrent talk in my two previous posts (here and here), then neither will I manage today. Still, I’m a hopeless optimist by nature, so I’ll try anyway. A vital presupposition in the deterrence argument in favor of capital punishment (or any type of punishment by the way) is the minimally rational nature of criminals: if criminals don’t weigh the costs and benefits of actions before they undertake them, an extra cost as heavy as death won’t make any difference to their actions. And they don’t:

The tenet that harsher penalties could substantially reduce crime rates rests on the assumption that currently active criminals weigh the costs and benefits of their contemplated acts. Existing and proposed crime strategies exhibit this belief, as does a large and growing segment of the crime literature. This study examines the premise that criminals make informed and calculated decisions. The findings suggest that 76% of active criminals and 89% of the most violent criminals either perceive no risk of apprehension or are incognizant of the likely punishments for their crimes. (source)

It seems that criminals, like the rest of us, are seldom the cold, mechanical and calculating types. And the best thing about this: even if it was all wrong and capital punishment could deter, it would still be unacceptable for other reasons.

More about deterrence here and here.

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poverty, self-defeating human rights policies

Self-Defeating Human Rights Policies (6): The Social Effects of Incarceration

prison

(source)

[T]he effects of [the] change in the imprisonment rate [in the U.S.] … have been concentrated among those most likely to form fragile families: poor and minority men with little schooling. Imprisonment diminishes the earnings of adult men, compromises their health, reduces familial resources, and contributes to family breakup. It also adds to the deficits of poor children, thus ensuring that the effects of imprisonment on inequality are transferred intergenerationally. … Because having a parent go to prison is now so common for poor, minority children and so negatively affects them, the authors argue that mass imprisonment may increase future racial and class inequality — and may even lead to more crime in the long term, thereby undoing any benefits of the prison boom. U.S. crime policy has thus, in the name of public safety, produced more vulnerable families and reduced the life chances of their children. (source, source)

Graph demonstrating increases in United States...

Timeline of total number of inmates in U.S. prisons and jails (click image to enlarge)

This is an example of a self-defeating human rights policy: in an attempt to improve the protection of security rights and property rights of a population, a policy of increased incarceration rates has an adverse effect on the rights of the incarcerated, their families and children, and possibly even society at large (as increased inequality resulting from high incarceration rates among society’s most vulnerable groups will perhaps lead to more crime – although we can’t assume that increasing poverty and inequality will automatically provoke those who are impoverished because of incarceration to resort to crime).

More on incarceration rates, the war on drugs and hereditary poverty. More human rights quotes.

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data, law, racism

Racism (20): Racial Discrimination in Marijuana Arrests

Marijuana use by black residents of Washington DC is only slightly higher than among white residents. Given that blacks are slightly more numerous in DC than whites, we should – if criminal justice were fair – also see only slightly more blacks arrested for marijuana use. Surprise, surprise: that’s not the case. In 2007, 91 percent of those arrested for marijuana were black. Adjusting for population, African-Americans are eight times more likely to be arrested.

racial discrimination in marijuana arrests

(source, source, the drawing makes it look like blacks are more than 11 times more likely to get arrested – 8*11=91 – but that doesn’t take into account the fact that blacks are slightly more numerous in DC – hence the correct number is 8 times)

A similar pattern for Chicago (where whites are more numerous than blacks):

marijuana arrest rates by race, chicago

marijuana arrest rates by race, Chicago

(source, click image to enlarge)

And this is the case for many if not all types of crimes. The racial distribution of inmates in U.S. prisons is highly negative for black Americans. Whereas they only make up 12% of the total U.S. population, they represent more than 40% of all inmates. It’s obvious from the case of cannabis that this difference isn’t due to a higher level of involvement in crime. I wonder, could racial profiling perhaps explain something? Actually, I don’t wonder…

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activism, freedom, law, most absurd human rights violations, photography and journalism

The Most Absurd Human Rights Violations (85): Three Weeks in Jail for Throwing a Pie

laurel and hardy pie throwing

Laurel and Hardy pie throwing scene

Comedian Jonathan May-Bowles was yesterday sentenced to six weeks in jail for throwing a shaving-foam pie at Rupert Murdoch whilst the media tycoon was giving evidence at the Commons Culture, Media and Sport Committee. Better known as “Jonnie Marbles”, May-Bowles was also ordered to pay £250 costs and a £15 victim fine after pleading guilty to one count of common assault and another count of causing harassment, alarm or distress … Of those six weeks, Jonnie will serve three. …

Jonnie’s sentence was handed down by the same judge who gave policeman Marcus Ballard 150 hours unpaid work for pushing a teenager through a shop window. She also gave James Allen QC a 12-month supervision for beating his wife over an uncooked dinner. She let off TSG Sergeant Delroy Smellie over hitting G20 protester Nicola Fisher across the face and whacking her in the legs with a baton.

As argued by Jonnie’s lawyer in court “slapstick and pie throwing is a recognised form of protest.” No injury was caused — nor was there any intent to cause it — and there was limited damage to the suit. (source)

More absurd human rights violations here. More about pie throwing here and here.

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human rights violations, law, most absurd human rights violations, trade, work

The Most Absurd Human Rights Violations (84): “Small Mistake” Leads to Jail Time, Job Loss and Most Likely Poverty

Ted Bundy

a real criminal

(source)

Ikenna, a 28-year old construction worker, went to deposit a $8,463.21 Chase cashier’s check at his local Chase branch, only for the teller to decide that neither he nor his check looked right and he got tossed in jail for forgery … The next day, a Friday, the bank realized its mistake and left a message with the detective. But it was her day off, so he spent the entire weekend in jail.

By the time he got out, he had been fired from his job for not showing up to work. His car had been towed as well. It ended up getting sold off at auction because he couldn’t afford to get it out of the pound. He had been relying on that cashier’s check for his money but it was taken as evidence and by the time he got it back it was auctioned off.

All this while the cashier’s check had been issued by the very bank he was trying to cash it at. …

[M]iddle-class people enjoy all sorts of protections against misfortune. For poor people, a single thing going wrong can lead to a life-altering spiral — they lack the social and financial resources to overcome one problem, so a flat tire become a late day at work which becomes a lost job, an overcharge fee busts a checking account, which in turn becomes a ruined credit rating. (source, source, source)

Note that Ikenna is black, which was probably not completely irrelevant when his trustworthiness was questioned.

This point is related to the so-called bee-sting theory of poverty. More absurd human rights violations here.

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freedom and equality, governance, human rights and crime, law, philosophy

Crime and Human Rights (14): The Limits of the Law

justice cartoon by Ares

justice cartoon by Ares

(source)

We need rules to live together in a spirit of respect for each other’s rights, freedom and equality. We need to tell people what they can, cannot or should do in order to respect the rights, freedom and equality of others, and we need to coerce people if they don’t respect these rules.

It seems that the best way to do this is to translate these rule into laws and then to use a justice system and a police system to enforce respect for these laws. That’s obviously not the only way to do it – education, tradition, social control, incentives etc. are other ways – but it’s one that has proven to be successful (yet not perfectly successful since legal prohibition of acts and enforcement of this prohibition never completely prevent those acts and may even backfire). If that is correct, then laws and their enforcement institutions are necessary parts of modern life.

So, these are, in broad strokes, the limits of the law: laws should protect people’s rights, freedom and equality, no more, no less, and nothing else. However, once the institutions of the law and of law enforcement have been created, there’s always the possibility and perhaps even the certainty that they will be used not to protect rights, freedom and equality, but for other purposes, or for the enforcement of controversial and exotic interpretations of rights, freedom and equality. That’s one way in which the law can overstep its limits or, if you want, become corrupted. (I focus here on the corruption of the law, not the law enforcement institutions. The latter is for another time).

Quantitative limitations

Detail from Corrupt Legislation. Mural by Elih...

Detail from Corrupt Legislation. Mural by Elihu Vedder. Lobby to Main Reading Room, Library of Congress Thomas Jefferson Building, Washington, D.C. Main figure is seated atop a pedestal saying "CORRUPT LEGISLATION". Artist's signature is dated 1896.

But a system of law can overstep its limits in several other ways as well. The purpose of the law – rights, freedom and equality – is a limitation, but it’s a limitation that requires other limitations, for example a quantitative limitation. There’s always a tendency for the number of laws to become too large. That’s a problem because a violation of this quantitative limitation has qualitative consequences for the ability of the system of law to serve its purpose, namely the protection of rights, freedom and equality:

  • When laws become too numerous, it becomes difficult for people to know what is and is not legal. As a result, people may find that they are ambushed by the law. When people are ambushed in this way, they risk losing their freedom through no fault of their own, and that means that the system of law doesn’t perform its main function, namely protecting rights, freedom and equality. Moreover, after having endured or seen this kind of ambush, people will start doubting the value of the whole system of law. This undermines the credibility of the system, making it again difficult to use it for its intended function.
  • When laws become too numerous, the enforcement institutions will have an increasingly difficult task. Some laws will no longer be enforced, or will be enforced in an unsatisfactory or selective way, something which again destroys the credibility and hence the effectiveness of the system of law and again has consequences for the purpose of the system.
  • When laws become too numerous, it’s likely that the focus of the law will be lost. People have a limited number of rights, and there are a limited number of ways in which people can infringe on each other’s freedom and equality. Hence, the number of laws should also be limited. When there are more laws than necessary, people will be coerced for other reasons than rights, freedom and equality, and they will rightly resent this. This resentment will again be directed at the law in general, including the laws that are necessary for rights, freedom and equality.

Formal limitations

It’s not only the number of laws that can force the system of law beyond its limits. The nature of laws is also important. After all, just as a vast body of law can coerce too much, so can one very sweeping law. Laws should have certain characteristics if they are to stay within their limits:

  • Laws should be precise: they should be targeted at very specific threats to freedom, equality and rights, and not at vague threats or at threats to something else. For instance, a law that makes hate speech illegal, but doesn’t specify hate speech, is too vague. It risks coercing too much and hence destroying rights, freedom and equality rather than protecting those values.
  • Laws should also be effective: they should have a proven track record of countering specific threats to rights, freedom and equality. Otherwise they should be repealed. It often happens that laws are counterproductive: rather than countering a specific threat to rights, freedom and equality, they enhance it. For example, capital punishment for murder may make it more likely that witnesses are murdered.
  • Laws should be proportional. They should not provide a punishment for those threatening rights, freedom and equality that produces a greater threat to the rights, freedom and equality of the punished criminals (and their relatives etc.). And they should not produce other unwanted side-effects that have an impact on rights, freedom and equality. An example of a law – or better a set of laws – that creates more harm than it prevents is the “war on drugs“. Maybe this is a set of laws that effectively suppresses drugs, but in doing so it disproportionately harms rights, freedom and equality in other places (it leads to excessive incarceration of ethnic minorities).
  • Laws should not be secret, retroactive (a retroactive law is one that punishes acts that have occurred before the law came into force) or unstable (they should not change all of the time).  Otherwise, it becomes very difficult for people to respect the law, creating again the risk of ambush and the consequent loss of credibility for the whole system of law.
  • Laws should not be bad law. They should not be too complex, incomprehensible or contradictory. Otherwise they will have the same effect as secret, retroactive or unstable laws.
  • And, finally, laws should be necessary. If there’s a non-coercive tool to protect rights, freedom and equality that is equally effective and proportional, then this tool should used. A law, after all, because it is coercive, is a violation of freedom. Laws can therefore only be used if they are the only available means to produce more freedom than they take away, or if they are more effective.

Content limitations

Another limitation of the law is that it can only be designed to serve rights, freedom and equality. If people want to waive or destroy their own rights, freedom and equality, the law should not force them to do otherwise. In other words, the law should not be paternalistic, although there may be room for some form of soft paternalism in the case of people who obviously don’t understand their own interests or who have a hard time acting on their interests. If paternalism can enhance autonomy, why not. I won’t develop that point in this post, however.

Some also argue that religious people, or people holding other, non-religious but substantial moral convictions that are very controversial, should avoid using those religious or moral convictions as a justification for laws. Laws should in other words be neutral in order to avoid coercing people in ways that they can never accept. I rejected this argument here, so in my view that’s not a proper content limitation of the law.

If we want to keep the law within the limits stipulated here, we have to be aware of the possible roads to corruption. First, legislators should think, in every legislative decision, about the ways in which the proposed law is necessary and effective for the protection of freedom, equality and rights. Next, they should respect some formal and content limitations, as well as quantitative ones. And finally, they should have a coherent understanding of the nature of freedom, equality and rights. That, of course, in controversial – different people will always have different views of the proper meaning of these concepts. However, democratic deliberation and public reasoning can at least guarantee majority support for a particular interpretation of this meaning, and make it possible to avoid private and self-interested meanings to sneak into the law.

More on the corruption of the law is here, here and here. Something about the corruption of the enforcement institutions is here and here.

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citizenship, data, globalization, human rights maps, international relations, law, poverty, work

Human Rights Maps (144): The “Criminal Immigrant” Stereotype

I’ve argued many times before that the link between immigration and crime is a particularly nasty piece of political cynicism and populism, completely fact-free but unfortunately not devoid of harmful consequences. Three different groups suffer these consequences:

  • potential migrants who have beneficial opportunities taken away from them
  • existing migrants who are unfairly targeted by law enforcement
  • and the native populations who also can’t benefit from increased immigration.

Here’s one sickening cartoon in map form, claiming that Mexico, following the example of Colombia, is drowning in blood, and that the blood is spilling across the border, when in fact immigration reduces crime rates:

cartoon criminal immigrant stereotype map mexico US

(source)

More maps on migration are here. More human rights maps in general are here.

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data, discrimination and hate, equality

Racism (20): Evidence of Colorism

colorism dark girls poster

(source)

Colorism is prejudice of or discrimination against other people based on skin color. The concept is different from racism because it’s usually used to describe discrimination within a certain race or ethnic group, based on the tone of skin color, rather than discrimination of an entire race or ethnic group. In general, this means that lighter skin tones are preferred and darker skin is considered less desirable. Lighter-skinned members of a certain race or ethnic group can discriminate against members with darker tones within the same group, but colorism more often means a general social preference for lighter skins.

Separation of light and darkness, from the Sistine Chapel ceiling by Michelangelo

Separation of light and darkness, from the Sistine Chapel ceiling by Michelangelo

One cause of colorism may be a traditional and historical preference for light and an abhorrence of darkness, light being good and godly, dark being evil and scary. However, I won’t explore the causes and just limit myself to some examples. There’s the one I mentioned some time ago, and then there’s this one:

Villanova researchers studied more than 12,000 cases of African-American women imprisoned in North Carolina and found that women with lighter skin tones received more-lenient sentences and served less time than women with darker skin tones. The researchers found that light-skinned women were sentenced to approximately 12 percent less time behind bars than their darker-skinned counterparts. Women with light skin also served 11 percent less time than darker women.

The study took into account the type of crimes the women committed and each woman’s criminal history to generate apples-to-apples comparisons. The work builds on previous studies by Stanford University, the University of Colorado at Boulder and other institutions, which have examined how “black-looking” features and skin tone can impact black men in the criminal-justice arena. …

Part of the reason may simply come down to how pretty jurors consider a defendant to be, and that being light-skinned and thin (also a factor studied in the research) are seen as more attractive. (source)

More on discrimination in incarceration is here.

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human rights and crime, justice, law, philosophy

Crime and Human Rights (13): What’s the Use of Criminal Punishment?

Crime and Punishment (1970 film)

Poster for the movie "Crime and Punishment" (Russian: Преступление и наказание), a 1970 Soviet film directed by Lev Kulidzhanov, based on the eponymous novel by Fyodor Dostoevsky

Criminal punishment, even in our non-medieval and so-called Enlightened societies, is the deliberate, intentional and organized imposition of harm on those we believe to be guilty of a crime. That remains the case even if we assume that those who are punished are in general guilty and that all necessary preconditions for criminal punishment are present (for example, that people are punished only after a fair trial, conducted by those authorized to conduct it; or that only those people aware of the moral significance of their actions are punished).

Given this imposition of harm, it’s important to be able to justify our systems of criminal punishment. Usually, but not always, the justifications people offer invoke the need to protect the rights of victims – actual or potential – but it’s far from certain that any justification can withstand even superficial criticism. Let’s look at the different justifications in turn. I think we can distinguish at least 5 common types of justification:

  1. Internalization
  2. Deterrence
  3. Rehabilitation
  4. Incapacitation
  5. Retribution

I’ll first offer a more or less neutral description of these different justifications, before criticizing them.

Justifications of criminal punishment

1. Internalization

The system of criminal punishment is justified because it is an expressive affirmation of shared values within a community (in other words, it’s a form of signaling). This affirmation serves to internalize shared values. When the members of the community have successfully internalized the shared values of the community, it’s assumed that crime will occur less frequently.

2. Deterrence

According to this second type of justification, criminal punishment is justified when it can be shown that the threat and practice of punishment is necessary for the prevention of future crimes, not through internalization of the norms expressed in punishment, but through fear of punishment. Punishment is supposed to reduce the prevalence of crime because it works as a threat. It’s assumed that most rational people who perceive this threat engage in risk analysis, weigh the possible costs and benefits of an intended crime, and conclude that the costs outweigh the benefits (the cost evaluation is a combination of likelihood of the threat – i.e. enforcement – plus severity of the threat). As a result, people reduce their willingness to carry out the crime.

h for hang

(source)

3. Rehabilitation

Unlike internalization (1) and deterrence (2), this third type of justification does not aim at a general prevention or decrease in crime. Criminal punishment is justified because it prevents a particular criminal from engaging in future crimes. Prevention occurs because it’s believed to be possible to change the criminal’s propensity for crime through rehabilitative efforts within the penal system.

4. Incapacitation

This fourth type of justification also doesn’t aim at a general prevention or decrease of crime. Punishment is justified because it prevents a particular criminal from engaging in future crimes, not by way of rehabilitation but by way of incapacitation, which means either incarceration or execution.

5. Retribution

Criminal punishment is justified because criminals deserve to be punished in a certain way.

Consequentialism and deontology

Justifications 1 to 4 are consequentialist in nature: punishment is justified because of the good consequences that result from it, or because of the bad consequence that would result from our failure to punish. They all assume that punishment can prevent crime and hence protect victims – real or possible victims. Justification 5 is of a more deontological nature: punishment is a good in itself in the sense that it is required by justice irrespective of the likely consequences.

Contradictions between justifications

Notice how these different justifications may be incompatible.

Contradiction between (3) and (5)

Rehabilitation (3) means, by definition, flexible sentencing. Penal officials and judges need to have discretion, otherwise they can’t differentiate between successfully rehabilitated prisoners and others. Such discretion typically invokes anger among those who adopt a retributivist justification (5). Retributivism focuses on just desert in sentencing: a criminal should get the sentence he or she deserves, and usually this means a sentence that is in some way proportional to the gravity of the crime and to the harm done to the victim and to society. That is why retributivists demand uniformity in sentencing, and sometimes even mandatory sentencing. The discretion inherent in rehabilitation provokes feelings of unfairness among retributivists.

Contradiction between (4) and (5)

But also incapacitation (4) is often at odds with retributivism (5). For example, incapacitation in the form of incarceration may be less than what the criminal is supposed to deserve. Perhaps the criminal deserves to die according to the retributivist.

Contradiction between (2) and (5)

Retribution (5) can be incompatible with deterrence (2) because effective deterrence may require punishment that is more severe than the punishment that the criminal deserves. For example, there’s no reason why those who believe in deterrence should reject capital punishment for petty theft if it can be shown that such a punishment effectively deters this crime and that the benefits of deterrence outweigh the harm done by the execution. Something more is required to reject such a punishment, and that’s where retribution comes in. Retributivists would claim that petty thieves don’t deserve to die.

Contradiction between (3) and (4)

And a last example of a contradiction between different types of justification of criminal punishment: incapacitation (4) may make rehabilitation (3) more difficult. After all, it’s not obvious that prison is the best locus for rehabilitation. On the contrary, it’s often argued that prison is a school for criminals. Rehabilitation may then require a sentence such as a fine or GPS tracking.

A scale of decreasing ambition

We can view justifications 1 to 5 as being on a scale from most to least ambitious.

justifications of criminal punishment

1. Internalization

Internalization (1) is obviously the most ambitious since it promises moral education of the citizenry and moral compliance with the law. The obvious problem here is that the desired outcome is highly uncertain, perhaps even utopian. It’s not sure that this uncertain objective justifies the very real harm imposed by criminal punishment.

2. Deterrence

Deterrence (2) is somewhat less ambitious since it discards the educational function of punishment as highly unlikely and aims instead at grudging compliance based on fear (as opposed to moral compliance based on conviction). Still, it’s relatively ambitious since it expects a society wide reduction in crime resulting from fear and rational risk analysis on the part of potential criminals. The data have shown that deterrence as well is overambitious.

3. Rehabilitation

Rehabilitation (3) in turn discards some of the unrealistic assumptions of deterrence (2), such as rationality on the part of future criminals and strict enforcement of the law, and tries to avoid some of the counterintuitive consequences of deterrence (2), such as the tendency to increase the severity of punishments resulting from the need to tip the scale in the risk analysis of criminals. It also tries to avoid the immoral instrumentalization inherent in deterrence. Moreover, it’s not clear that deterrence works, empirically.

Screenshot from A Clockwork Orange

Screenshot from A Clockwork Orange

Rehabilitation (3) is less ambitious than internalization or deterrence because it focuses on preventing only certain particular criminals from engaging in further crimes. There’s no society wide ambition anymore. However, the success of rehabilitative efforts during the past decades, as measured by reductions in recidivism, is mixed, to say the least. It’s correct to say that most criminologists have become somewhat disenchanted with rehabilitation. And there’s also some doubt about the morality of some rehabilitation techniques (especially those that have been lampooned in A Clockwork Orange). Which is why many have scaled back their ambitions even more and now focus on incapacitation (4).

4. Incapacitation

Let’s limit our discussion of incapacitation (4) to incarceration, since capital punishment is fraught with many other problems that have been widely discussed before on this blog. The problem with incapacitation is that it doesn’t have a clear boundary. Taken by itself, incapacitation theory could justify life imprisonment for petty crimes. In fact, the whole tough on crime philosophy can be seen as an exaggeration of incapacitation theory following the perceived failure of rehabilitation.

5. Retribution

This lack of a boundary in incapacitation theory (4) has led people to fall back on perhaps the oldest and least ambitious justification of criminal punishment, namely retribution (5). Retribution can be seen as a type of justification of criminal punishment that is entirely without ambition: punishment is inflicted for its own sake, not for the possible benefits it can produce. Criminals should be punished because it’s the right thing to do and because they deserve it, not because some aim or purpose can be served by it. This element of desert allows us to avoid both punishment that is viewed as being too severe – as in incapacitation (4) and deterrence (2) – and punishment that is viewed as being too lenient – as in rehabilitation (3).

Retributivism in fact abandons the pretense that punishment has a purpose, that it can achieve a desired objective and that no other, less severe means are available for this objective. However, retributivism isn’t a solid justification of criminal punishment either. It has proven to be impossible to know what exactly it is that the guilty deserve. Lex talionis is the easy answer, but it’s no longer a convincing one in modern societies. Proportionality is the difficult answer: severity in punishment should be proportional to the gravity of the offense. That’s the difficult answer because it leaves us with a system that is inherently imprecise and arbitrary. An infinite number of punishments are consistent with this justification. Hence it’s not really a justification at all.

No justification?

Michel Foucault

Michel Foucault

So, where does this leave us? It seems like criminal punishment is not justifiable. And indeed, there’s a long tradition in philosophy that views punishment as nothing more than rationalized anger, revenge and domination. Michel Foucault for example has analyzed criminal punishment as a cogwheel in the continuation of social power relations. The fact that there are so many African Americans in U.S. prisons and in execution statistics can be viewed as a symptom of continued racist domination. Nietzsche has described criminal punishment as being motivated solely by a deep natural desire to punish, subordinate and coerce. And indeed, if you want to punish someone for a crime, you first need to establish control over the would-be punishee. All systems of criminal punishment seems to be doomed to failure if there isn’t a prior system of control. This would indicate that there is already a prior system of control operating in society before criminal punishment takes effect, which in turn seems to indicate that systems of criminal punishment are merely the strong arm of deeper systems of control.

On the other hand, it seems difficult for anyone who’s serious about human rights to simply abandon criminal punishment. Without criminal punishment, we in fact expect victims of crime to either fend for themselves or undergo their suffering and rights violations. Neither outcome would be just.

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capital punishment, culture, justice, law, philosophy

Capital Punishment (34): Mere Signaling

signaling

It’s often assumed that capital punishment is about fighting crime, just retribution or desert, or perhaps about anger and revenge, but in reality it’s much more about signaling. And by signaling I don’t mean the signaling of threats to potential murderers so that they are deterred, or the signaling of the “just” nature of a society that takes an eye for an eye. Proponents of capital punishment, by expressing their support for it, signal their own moral rectitude. Their expression of support refers to high profile crime cases that are widely discussed in the media and that are likely to be familiar to friends, family and others to whom people want to signal. Signaling support for the death penalty in reference to such high profile cases makes the signal particularly strong and deep, partly because it’s so full of familiar and shockingly emotional detail.

Politicians who favor capital punishment and who keep the legal regime in place are equally focused on signaling. They signal that they care about the emotions of the victims of crimes and of the relatives of the victims, and at the same time they signal that they emotionally identify with those who care about the victims of crime. In other words, they signal that they feel connected to the large majority of humanity. And that kind of signal is vitally important for democratic politicians.

Opponents of capital punishment simply don’t have the same signaling power. For example, there’s no large constituency for signals about sympathy for criminals or for signals about anti-instrumentalization. Politicians don’t stand a lot to gain from such signals, and neither do citizens concerned about how others think of them. On the contrary, they risk signaling emotional indifference for the plight of victims and hence they risk lowering their moral standing.

This asymmetry in signaling power between proponents and opponents can explain the persistence of rational arguments in favor of capital punishment, even after they have been shown to be wrong or inconsistent with the facts. (That’s the case for the arguments based on the deterrent effect for instance – see here and here – but also for the arguments based on retribution which are hopelessly circular: a certain punishment is appropriate for a crime because that crime requires a certain punishment). Proponents of capital punishment obviously can’t justify it simply on the basis of emotional identification. They need a more rational story as a cover. And as long as this story can be used successfully in the signaling process, that will do, whether or not the story is factually or logically correct. That will do, because opponents who point to factual or logical failings in the story amplify the signaling of the proponents: by pointing to these failures, the opponents signal rationality and detachment rather than emotional connection, and they thereby make the case for the proponents.

This is counterintuitive, given that it’s most often the opponents of capital punishment who are accused of emotionality and a lack of toughness, but I think it’s the right conclusion.

More on human rights and signaling is here. More on the death penalty here.

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freedom, human rights violations, law, most absurd human rights violations

The Most Absurd Human Rights Violations (80): Solitary Confinement for 28 Years

captured butterflies

(source)

Thomas Silverstein, who has been described as America’s “most isolated man,” has been held in an extreme form of solitary confinement under a “no human contact” order for 28 years. Originally imprisoned for armed robbery at the age of 19, Silverstein is serving life without parole for killing two fellow inmates (whom he says were threatening his life) and a prison guard, and has been buried in the depths of the federal prison system since 1983. …

Silverstein [has been held] in a series of what constitute the most secure and isolated housing in the federal prison system: in the notorious Control Unit at Marion, the supermax prototype; at USP Atlanta in a windowless underground “side pocket” cell that measured 6 x 7 feet (“almost exactly the size of a standard king mattress,”); at Leavenworth in an isolated basement cell dubbed the “Silverstein Suite”; on “Range 13″ at ADX Florence, where the only other prisoner was Ramzi Yusef; and finally in ADX’s D-Unit, where he can hear the sounds of other prisoners living in neighboring cells, though he still never sees them.

The following is from Tommy Silverstein’s description of his life at USP Atlanta:

The cell was so small that I could stand in one place and touch both walls simultaneously. The ceiling was so low that I could reach up and touch the hot light fixture.

My bed took up the length of the cell, and there was no other furniture at all … The walls were solid steel and painted all white.

I was permitted to wear underwear, but I was given no other clothing. …

During my first year in the side pocket cell I was completely isolated from the outside world and had no way to occupy my time. I was not allowed to have any social visits, telephone privileges, or reading materials except a bible. I was not allowed to have a television, radio, or tape player. I could speak to no one and their was virtually nothing on which to focus my attention.

I was not only isolated, but also disoriented in the side pocket. This was exacerbated by the fact that I wasn’t allowed to have a wristwatch or clock. In addition, the bright, artificial lights remained on in the cell constantly, increasing my disorientation and making it difficult to sleep. Not only were they constantly illuminated, but those lights buzzed incessantly. The buzzing noise was maddening, as there often were no other sounds at all. This may sound like a small thing, but it was my entire world.

Due to the unchanging bright artificial lights and not having a wristwatch or clock, I couldn’t tell if it was day or night. Frequently, I would fall asleep and when I woke up I would not know if I had slept for five minutes or five hours, and would have no idea of what day or time of day it was.

I tried to measure the passing of days by counting food trays. Without being able to keep track of time, though, sometimes I thought the officers had left me and were never coming back. I thought they were gone for days, and I was going to starve. It’s likely they were only gone for a few hours, but I had no way to know. (source)

More on solitary confinement and prison conditions. More absurd human rights violations.

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discrimination and hate, freedom, law, limiting free speech

Limiting Free Speech (44): Hate Speech as a Speech Act

lesbians doing a mans job

(source)

As in J.L. Austin’s phrase, “how to do things with words”, we actually do things when we speak. When we use language, we don’t just say things, describe things or communicate, but we also act, very much in the same way as when we pick up a stone or push someone around. When we use language in education we educate people and make better persons. When we apologize we heal people. When we command we make people do certain things. Etc. Now, my argument is that hate speech is a kind of speech act understood in this way, and more specifically it is a form of command. Those who engage in hate speech typically use speech that takes the form of a command, explicitly or implicitly. They want to coerce other people to act in certain ways, and they do this in two ways (usually combined in one single speech act):

  • They want to coerce their (potential) followers to act in certain ways towards hated groups. For example, people proclaiming that homosexuals are sinners are not just describing a reality (or what they believe to be reality) or communicating information about homosexuals (or what they believe to be information). On top of that, they also want other people to avoid homosexuals, to ostracize them, to discriminate them, or even to kill them. To the extent that they succeed, they engage in speech acts, and not merely speech.
  • They also want the hated groups to act in a certain way. In most cases, they want them to go away, know their place, keep silent, change their habits etc. The burning of a cross in the front yard of the only African-American family in the neighborhood is a clear sign that these people aren’t welcome. Again, when these speech acts succeed in driving people away they are more than just speech.

A speech act is an act or an action in the dictionary sense of the accomplishment of an objective, the causation of change by the exertion of power etc. Given that it’s not “pure speech” it’s not obvious that it should be a priori and absolutely protected by freedom of speech. (Just like abuse in private is not merely a private act and shouldn’t a priori be protected by the right to privacy). It’s a form of speech that, like other actions, has real consequences for real people. These people may have rights that protect them against these consequences, such as the freedom to choose a residence, the right not to be discriminated against, the right to life etc. When speech acts violate these rights, there’s some balancing to do and it’s not the case that some people’s right to free speech always takes precedence.

More on hate speech, speech acts, and limitations of free speech.

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data, human rights maps, law

Human Rights Maps (116): Life Without Parole For U.S. Teenagers

life-without-parole-for-us-teenagers

(source)

Currently, over 2,500 prisoners sit behind bars in the US without the possibility of parole for crimes committed while they were children.

In May 2010, the Supreme Court ruled that the 8th Amendment‘s ban on cruel and unusual punishment means juvenile offenders who haven’t been convicted of murder shouldn’t be sentenced to life in prison without any chance of parole.

A few years ago, the Court already banned the death penalty for juvenile offenders. See also here.

juvenile life without parole infographic

(source, click image to enlarge)

More on the death penalty, and on juvenile incarceration. More human rights maps.

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citizenship, data, international relations, law, measuring human rights, statistics, work

Measuring Human Rights (14): Numbers of Illegal Immigrants

illegal immigrants caution sign at border crossing

caution sign depicting running illegal immigrants at a border crossing

Calculating a reliable number for a segment of the population that generally wants to hide from officials is very difficult, but it’s politically very important to know more or less how many illegal immigrants there are, and whether their number is increasing or decreasing. There’s a whole lot of populist rhetoric floating around, especially regarding jobs and crime, and passions are often inflamed. Knowing how many illegal immigrants there are – more or less – allows us to quantify the real effects on employment and crime, and to deflate some of the rhetoric.

Immigration is a human rights issue in several respects. Immigration is often a way for people to escape human rights violations (such as poverty or persecution). And upon arrival, immigrants – especially illegal immigrants – often face other human rights violations (invasion of privacy, searches, labor exploitation etc.). The native population may also fear – rightly or wrongly – that the presence of large groups of immigrants will lower their standard of living or threaten their physical security. Illegal immigrants especially are often accused of pulling down wages and labor conditions and of creating native unemployment. If we want to disprove such accusations, we need data on the numbers of immigrants.

illegal immigration in the US after the recession

So how do we count the number of illegal immigrants? Obviously there’s nothing in census data. The Census Bureau doesn’t ask people about their immigration status, in part because such questions may drive down overall response rates. Maybe in some cases the census data of other countries can help. Other countries may ask their residents how many family members have gone abroad to find a job.

anchor babyAnother possible source are the numbers of births included in hospital data. If you assume a certain number of births per resident, and compare that to the total number of births, you may be able to deduce the number of births among illegal immigrants (disparagingly called “anchor babies“), which in turn may give you an idea about the total number of illegal immigrants.

Fluctuations in the amounts of remittances - money sent back home by immigrants – may also indicate trends in illegal immigration, although remittances are of course sent by both legal and illegal immigrants. Furthermore, it’s not because remittances go down that immigrants leave. It might just be a temporary drop following an economic recession, and immigrants decide to sweat it out (possibly supported by reverse remittances for the time of the recession). Conversely, an increase in remittances may simply reflect technological improvements in international payment systems.

Perhaps a better indicator are the numbers of apprehensions by border-patrol units. However, fluctuations in these numbers may not be due to fluctuations in immigration. Better or worse performance by border-patrol officers or tighter border security may be the real reasons.

So, it’s really not easy to count illegal immigrants, and that means that all rhetoric about illegal immigration – both positive and negative – should be taken with a grain of salt.

More posts on this series are here.

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capital punishment, data, discrimination and hate, equality, law

Capital Punishment (33): It’s Not What You Do, But What You Do to Whom

Rainey Bethea execution

the hanging of Rainey Bethea, the last public execution in the U.S.

In the U.S., and probably also in other countries that still use the death penalty, not all murders are alike. Ostensibly, the death penalty is the supreme punishment for the supreme crime, i.e. murder. But some cases of the supreme crime are more likely to result in the supreme punishment than others. For example, it’s well-known that a black person who has committed murder is more likely to be executed than a white person, even if the details of their crimes are very much alike.

It seems that the moralistic justification of capital punishment – that the worst of crimes should be met with the severest of punishments – is just talk, applicable in some cases but not in others. This inconsistency is incompatible with moral talk, since morality is precisely about general and blind rules. The inconsistency becomes even more clear when we consider that it’s not just the race of the perpetrator that makes it more or less likely that horror is answered with horror. People who murder whites are much more likely to be executed than those who murder blacks:

race of homicide victims determines capital punishment

(source)

I don’t want to sound conspiratory, but it does seem like the death penalty is an instrument in the continued subjugation of blacks and the protection of whites.

On top of the race issue, there’s also a class issue:

A defendant is much more likely to be sentenced to death if he or she kills a “high-status” victim, according to new research by Scott Phillips, associate professor of sociology and criminology at the University of Denver (DU).

According to his research published in Law and Society Review, (43-4:807-837), the probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree.

“The concept of arbitrariness suggests that the relevant legal facts of a capital case cannot fully explain the outcome: irrelevant social facts also shape the ultimate state sanction” Phillips says. “In the capital of capital punishment, death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others.”

Phillips research is based on 504 death penalty cases that occurred in Harris County, Texas between 1992 and 1999. (source, source)

More on capital punishment is here.

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causes of human rights violations, democracy, freedom, law

The Causes of Human Rights Violations (24): Political Rhetoric, Violence and Free Speech

editorial cartoon by Clay Bennett, about violence and political rhetoric

editorial cartoon by Clay Bennett, about violence and political rhetoric

(source)

My two cents about the shooting of Gabrielle Giffords:

  • The attack was obviously politically inspired, even though the shooter may have been insane. An insane act isn’t necessarily apolitical. There may or may not be a direct causal link between the attack and the “heated political rhetoric” that has come to characterize American politics and that often borders on incitement. (Compared to other western democracies, the political language is indeed extreme in the US). If there is such a link, it will be very hard to establish, given what we know about the psychology of the attacker.
  • In general, violent rhetoric can contribute to actual violence (see this paper for example). The case of the Rwanda genocide is well-known. And we don’t need to go and look at extremes in order to find cases of hate speech turning into hate crime. There are not a few pedophiles who have had there whereabouts shouted from the rooftops and who suffered the consequences. Given the omnipresence and ease-of-use of the media in developed societies, what is published and broadcast through these media may very well nurture or even provoke extremism and hate in society. It’s futile to deny this possibility.
  • This general conclusion does not warrant the automatic linking of a case of violence to instances of political rhetoric that seem to be a possible inspiration. In other words, it’s not because Sarah Palin was silly enough to publish a map with cross-hairs “targeting” Giffords (among others) in a purely political and non-violent way, that her actions caused the attack. Maybe these actions contributed, maybe not. Most likely we’ll never know. And even if they did contribute in driving a sick person over the edge – which is not impossible – then they are most likely only one element in a large set of causal factors, including the perpetrator’s education, medical care (or lack thereof), the ease with which he could acquire a gun etc. That large set doesn’t drown individual causes but it does diminish the importance of each (possible) cause. Human motivation and the determinants of human action are almost always highly complex. (Something which is too often forgotten in criminal sentencing).
John Stuart Mill

John Stuart Mill

  • Given the general possibility of speech resulting in violence, is that possibility a sufficient reason to limit our freedom of speech, even before the actual violence occurs? Yes, but only in very specific cases, namely those cases in which the link between speech and (possible) violence is clear. John Stuart Mill used the example of an excited mob assembled in front of the house of a corn dealer accused of starving the poor. Hate speech in such a setting is likely to lead to violence, while the exact same words printed in an obscure magazine are not. The words in the magazine should be protected by freedom of speech; the words of the mob leaders probably not.
  • Yet even when words should be left free by the law, morality requires of speakers that they consider the possible consequences of speech.
  • Are the events we witnessed recently of the same nature as the words of the mob leaders? And what about similar recent events? I don’t think so. Which means that the people concerned have not abused their freedom of speech.
  • Does that mean that they used their freedom in a good way? No, it doesn’t. Heated rhetoric is almost never the best way to talk, not even for the purposes of the speaker. It doesn’t tend to accomplish a lot or to further anyone’s interests (apart from the interest in getting attention). So those of us who insist on “turning it down a notch” have good reasons to do so. This insistence obviously doesn’t imply curtailment. It’s just a question, and it deals with form rather than content. People are generally too fast to claim their right to free speech when confronted with criticism of the way in which they use or abuse this right. Criticism of speech doesn’t automatically imply the will to prohibit speech, and freedom of speech doesn’t mean freedom from criticism. Quite the opposite.

More here and here.

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data, discrimination and hate, economics, education, equality, poverty, racism

Racism (16): Race and Crime

Banksy mural depicting a scene from the movie Pulp Fiction, starring Samuel L Jackson and Jonh Travolta

Banksy mural depicting a scene from the movie Pulp Fiction, starring Samuel L Jackson and Jonh Travolta

It’s well-known that African-Americans make up a disproportionate part of the U.S. prison population. Racists of course have an easy explanation for this, but what is the real explanation? Part of it is probably racial profiling and bias among jury members. Another part of the explanation can be poverty, unemployment and lower education, burdens from which African-Americans also suffer disproportionately. And although crime has many possible causes, there’s some evidence that at least some types of property crime go up during recessions. This indicates that there’s a link between crime and poverty, something which in turn can explain different arrest ratios across races given the different poverty rates across races.

Vincent and Jules Winnfield (Samuel L. Jackson...

Screenshot from the film Pulp Fiction (1994), showing Vincent Vega (John Travolta) and Jules Winnfield (Samuel L. Jackson) in their well-known pose

There’s an interesting paper here studying the effects of both labor market conditions and asset poverty on the property crimes involvement of American males. It turns out that poverty and labor market outcomes account for as much as 90% of the arrest rates ratio. More on racism and crime. More Banksy.

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activism, freedom, law, political t-shirts

Political T-Shirt (14): Miranda Rights

miranda t-shirt

(source)

First, a word about Miranda rights, for those of you not from the U.S. Miranda rights are a warning that is required to be given by police in the U.S. to criminal suspects in police custody before they are interrogated. The warning informs them about their constitutional rights. An elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (if he or she is indigent, an attorney will be provided at no cost to represent her or him). The right to remain silent and be represented by an attorney are important elements of the right to a fair trial and of a civilized criminal justice system.

This t-shirt is an ironic reaction to a recent Supreme Court Decision ruling that silence is no longer an adequate indication that you wish to invoke your right to remain silent. Instead, an accused person who wants to invoke his or her right to remain silent must to do so unambiguously. So, in other words, you have to speak in order to claim your right to remain silent… Hence the t-shirt, allowing you to remain silent and “speak” at the same time.

More political t-shirts here.

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justice, law, limiting free speech, photography and journalism, privacy

Limiting Free Speech (42): Reporting the Names of Suspects and Defendants

In many countries it’s quite common, and legal, to include some very specific information about suspects in crime reporting. Newspapers, television shows and websites publish the names, photographs and even addresses of people who are arrested on suspicion of a crime, even if it later turns out that these people were completely innocent. By that time, of course, their reputation, privacy, livelihood, social relationships and perhaps even family life may have been destroyed beyond repair. One can argue that this practice is unjust and an abuse of freedom of speech, even in the case of people who, after the trial is over, are deemed to have been guilty rather than merely a suspect. Criminal punishment should arguably not include such far-reaching consequences. A fortiori, the harm done by such publications to people who were wrongfully suspected is even more unjust because it amounts to punishment before conviction.

That is why some people – including myself – are in favor of limited restrictions on this type of news reporting, even if it means limiting journalists’ freedom of speech. The names, addresses or photographs of suspected criminals should not be made public until after a conviction, and in some cases not even then (there’s the example of the Bulger murder). That is obviously a limitation of the freedom of speech of the journalists engaged in such reporting, but a justified limitation (read the whole series of blog posts for other examples). Before I argue why it is justified, let me reiterate my strong support for free speech in general and open justice in particular. Justice must not only be done but also seen to be done. Open trials have many advantages and can help to avoid miscarriages of justice. They are necessary in order to avoid witness or expert fraud, they make it possible for new evidence to show up and they make it more likely that society accepts the outcome and retains confidence in the justice system as a whole. Evidently, the media play an important role in making trials truly public and open, and hence they should have access and freedom of speech. (Read more about why an open trial means a fair trial here).

Now, why do I think this access and speech shouldn’t necessarily or always include the identity of the suspects? Because there is, in most cases, no real need for that. It’s perfectly possible for the media to play their part in the openness of trials and therefore the fairness of trials without disclosing the identity of the suspects. Some exceptions may be necessary, for instance when a successful prosecution depends on “crowd sourcing” (e.g. to find out the whereabouts of a suspect), but those should remain exceptions. The default should be anonymity. Most of the time, when the media disclose the identity of a suspect, it’s not in order to assist the prosecution, but to pander to the most basic instincts of the public: hate and voyeurism. Unfortunately, newspapers sell and websites are visited when they have stories about gruesome crimes supposedly committed by someone belonging to a minority already covered in prejudice and when these stories contain all the fine detail, including names, places and pictures.

Obviously, amoral commercial exploitation of basic instincts isn’t a sufficient reason to limit freedom of speech (and neither is it a reason to defend it), but we do have other reasons. Why should the rights of one – the media in this case – automatically trump the rights of another – the privacy of suspects, their livelihood etc.? Rights need to be balanced against each other, and when there’s no strong reason to uphold one right – as is the case here (reporting can be done perfectly well without identification) – it should yield in order to protect the other right.

suspect named and shown on newspaper front page

(source)

Some would say that the role of the media in the openness of trials isn’t the only possible argument in favor of disclosing identities. Another argument goes as follows: if the media can’t disclose enough details, their stories will lose human interest and become vague and abstract treatises. No one wants to read that, and consequently the media will stop writing about the Courts altogether, and the social debate about criminal justice will suffer. I think that argument is mistaken. You can write real human interest stories about real people without printing the names, addresses and photographs of possible suspects.

Others would say that I exaggerate: the public is quite capable of distinguishing between suspects and convicted criminals. Maybe, but does anyone honestly think that excessively invasive crime reporting never harms suspects or never imposes disporportionate harm on convicted criminals? I think that would be an extremely naive position to take.

Now, as I said, there have to be exceptions: sometimes a successful prosecution requires the disclosure of a suspect. I can also be argued that people who hold a prominent position in society should also, in certain cases, not benefit from anonymity during prosecution. But that should be the exception and only in cases where there is some public good involved in knowing the suspect. We should not let hatred, voyeurism, Schadenfreude or the commercial interests feeding on these instincts, ruin people’s lives.

More posts in this series are here.

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capital punishment, law

Capital Punishment (31): The Incapacitation Argument For Capital Punishment

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but another common argument is incapacitation: killing criminals guarantees that they cannot commit further crimes. It’s likely that this argument plays an important role in many decisions to impose capital punishment, since members of juries may fear, mistakenly, that life imprisonment without parole actually means something like “on average 10 years in prison” (see here).

The obvious counter-argument is that life imprisonment, when it really means “life”, is equally incapacitating. True, say the proponents of capital punishment, but criminals may kill when in prison. In particular, they may kill fellow inmates. OK, so let’s do a thought experiment. Imagine that we don’t use the death penalty for murder, but incarcerate murderers for life, together with only fellow murderers. The only killing they can do is of their fellow incarcerated murderers.

The former gas chamber in San Quentin State Pr...

The former gas chamber in San Quentin State Prison

Would that kind of killing be objectionable to proponents of capital punishment? I think it shouldn’t be, since the victims of this kind of killing would also have been killed under a regime of capital punishment. Maybe opponents would object that this system doesn’t treat all murderers the same: some get killed, others not. However, I fail to see what difference it makes to a murderer if she is killed by fellow inmates rather than by the state, or if she is killed while others aren’t. She’ll be dead, and in no position to complain about others being still alive. (And don’t tell me murder by the state is preferable because it’s more “humane“). Moreover, our existing regimes of capital punishment don’t manage to kill all murderers either. And finally, non-murderers can also kill while in prison. Should we execute them preemptively?

For opponents of capital punishment, it does make a huge difference whether murderers are killed by the state or by their colleagues: murder by the state means the instrumentalization of human beings, whereas murders between inmates are regrettable and to be avoided, but not more or less than murders in general.

More on capital punishment here.

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data, discrimination and hate, equality, gender discrimination, law

Gender Discrimination (23): Reverse Gender Discrimination in Criminal Justice

Using data obtained from the United States Sentencing Commission’s records, we examine whether there exists any gender-based bias in criminal sentencing decisions. … Our results indicate that women receive more lenient sentences even after controlling for circumstances such as the severity of the offense and past criminal history. …

Studies of federal prison sentences consistently find unexplained racial and gender disparities in the length of sentence and in the probability of receiving jail time and departures from the Sentencing Guidelines. These disparities disfavor blacks, Hispanics, and men. A problem with interpreting these studies is that the source of the disparities remains unidentified. The gravest concern is that sentencing disparities are the result of prejudice, but other explanations have not been ruled out. For example, wealth and quality of legal counsel are poorly controlled for and are undoubtedly correlated with race. …

The findings regarding gender in the case of serious offenses are quite striking: the greater the proportion of female judges in a district, the lower the gender disparity for that district. I interpret this as evidence of a paternalistic bias among male judges that favors women. (source)

More on unconscious discrimination and incarceration rates.

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