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

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

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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.

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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

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

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.

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.

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

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):

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.

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

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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.

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

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.

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

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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.

Related Articles

• Supreme Court Sides With Kids Sentenced to Life in Prison (criminaljustice.change.org)

Capital Punishment (46): “Looking Deathworthy”

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.

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

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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).

2. 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.

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

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):

What 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.

Human Rights Ads (79): Non-Public Execution

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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.

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

execution in Iran

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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.

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

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.

The Human Rights of Adolf Hitler

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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

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.

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

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

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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.

Measuring Human Rights (27): Measuring Crime

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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.

Political Graffiti (179): Crime

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More political graffiti here.

Capital Punishment (40): In 2011

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Unfortunately, Japan was quick to make sure 2012 would be different from 2011. More on capital punishment.

Measuring Human Rights (26): Measuring Murder

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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.

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

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.

Limiting Free Speech (47): Incitement to Commit Suicide

heartbreak

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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:

• solicitation of a murder
• some types of death threat
• cheering on a criminal
• speech that constitutes aiding and abetting of criminal conduct etc.

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, photo by Robert Wiles

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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:

Read the whole story here.

Human Rights Maps (159): Death Row in the U.S.

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More data on death row are here. More maps here.

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

Benny Hill

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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)

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.

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

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.

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

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[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)

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.

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.

(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

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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…

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

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.

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

a real criminal

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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.

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

justice cartoon by Ares

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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 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.

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:

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

Racism (20): Evidence of Colorism

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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

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.

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

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.

(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.

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

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

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.

Capital Punishment (34): Mere 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.

Related Articles

• How the planned execution of Teresa Lewis challenges our views on gender and capital punishment. (slate.com)
• It Beats Death By Electrocution (andrewsullivan.theatlantic.com)
• Jerry Brown Wants Executions To Resume In California (huffingtonpost.com)
• Swiss death penalty advocates drop campaign for referendum to restore capital punishment (foxnews.com)
• Teresa Lewis: God have mercy on us | Lynn Litchfield Divers (guardian.co.uk)

Human Rights Maps (138): Pornography Laws

Pornography is often framed as a free speech issue. This map shows where adult consumption of pornography is legal or not:

(source, click image to enlarge)

More on pornography and free speech here and here, more on obscenity and free speech here. More maps here.

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

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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.

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

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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.

Related Articles

• “A Defense of Free Speech by American and Canadian Muslims” (volokh.com)
• Charming Facebook Fat-Bashers Maybe Practicing Hate Speech [Unfriend] (jezebel.com)
• If you see Juan Williams at the airport, be afraid – be very, very afraid (psychologytoday.com)
• Does Right To Hate Speech Trump Right To Privacy? (plastic.com)
• Free Speech Vs. Freedom to Mourn in Peace: How Will the Supreme Court Rule? (dailyfinance.com)

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

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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.

(source, click image to enlarge)

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

Related Articles

• Judges Weigh Fairnes of Juvenile Life Without Parole (blogs.wsj.com)
• Florida Drags its Heels on Juvenile Lifers (criminaljustice.change.org)

Measuring Human Rights (14): Numbers of Illegal Immigrants

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.

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.

Another 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.

Related Articles

• Study: 340,000 Babies Were Born to Illegal Immigrant Parents in 2008 (washingtonindependent.com)
• Study Looks at Babies Born to Illegal Immigrants (nytimes.com)

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

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:

(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.

Related Articles

• The Incapacitation Argument For Capital Punishment (filipspagnoli.wordpress.com)
• Human Rights Facts (209): Capital Punishment in Japan (filipspagnoli.wordpress.com)
• Illinois House Votes To Abolish Death Penalty (huffingtonpost.com)
• Should States Abolish Death Penalty to Cut Costs? (abcnews.go.com)

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

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

• 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.

Related Articles

• Extremist Rhetoric, Violence and American History (themoderatevoice.com)
• Violence, Language, Politics (secularshawshank.wordpress.com)
• Clinton warns against demonized rhetoric (thehill.com)

Racism (16): Race and Crime

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.

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.

Related Articles

• Human Rights Facts (206): Race and Consumer Behavior (filipspagnoli.wordpress.com)
• Discrimination is the well-documented cause of race disparity in prison (seattletimes.nwsource.com)

Political T-Shirt (14): Miranda Rights

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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.

Related Articles

• Who read Miranda rights to plotter? (politico.com)
• Time to Codify a Miranda Exception for Terrorists? (volokh.com)

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

illustration by Matt Mahurin

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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.

(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.

Related Articles

• Canada’s Supreme Court upholds right of defendants to seek ban on reporting of proceedings (foxnews.com)
• Anonymity plan for rape accused (news.bbc.co.uk)
• Supreme Court upholds blanket publication ban for bail hearings (theglobeandmail.com)

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 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.

Related Articles

• Why I don’t believe in the death penalty (psychologytoday.com)
• Capital Punishment is Unnecessary (socyberty.com)
• The death penalty should be abolished (seattletimes.nwsource.com)
• Stevens’ Powerful Anti-Death-Penalty Views (time.com)
• Op-Ed Columnist: Broken Beyond Repair (nytimes.com)

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.

Related Articles

• Defendant’s gender affects length of sentence (sciencedaily.com)

Crime and Human Rights (11): The Preconditions for Criminal Punishment

I know that the worst thing about crime is what happens to the victims of crimes, not what happens to convicted criminals. Still, I want to focus on the latter for a moment. Criminal punishment is almost always a limitation of the criminal’s human rights, so it is a legitimate area of concern, although perhaps not the most important one. Whether we put criminals in prison, kill them, flog them, cut off their hands or put their names and addresses on the internet, we limit some or even many of their human rights.

So, if we want to maintain a system of criminal punishment, and if we agree that people don’t lose their human rights simply because they commit a crime, then we have to formulate a justification of the limits we impose on the rights of criminals. When are such limits justified, and when are they arbitrary, excessive or dictatorial? I believe criminal punishment is morally justified if, and only if, at least the following 8 conditions are met simultaneously:

1. Criminal punishment is necessary for the protection of the rights of others

A particular punishment, involving very specific limitations of the rights of the convicted criminal, has to be necessary for the protection of the rights of others. No other goal can be served by criminal punishment, and no other means or punishments, less harmful to the rights of the criminal have the same effect on the rights of others.

Criminal punishment not intended to protect the rights of others is therefore unacceptable, as is criminal punishment which imposes harm on the criminal that goes beyond what is necessary for the protection of the rights of others. For example, putting someone in prison because she has a certain opinion, is unacceptable because this punishment doesn’t protect the rights of others. And putting someone in prison because she steals a newspaper is also unacceptable because this punishment goes beyond what is necessary to protect the property rights of others. Rights protection in this case can be achieved by other means which are less harmful to the rights of the criminal (a fine for instance).

So both the type of punishment and its severity have to be taken into account when judging whether the punishment is morally justified. Simple retribution, proportionality or lex talionis can, in some cases, satisfy this first condition of morally justified punishment, but only by accident. In many cases, you will not deliver a morally justified punishment when you think only in terms of retribution, proportionality or lex talionis because you won’t automatically consider the effect of the punishment on the rights of others.

For example, take the case of a jealous artist vandalizing the work of a rival. Lex talionis would recommend that the vandals art be also vandalized. However, this punishment may be proportional and adequate retribution, and the vandal will undoubtedly suffer from it like he made his rival suffer, but no one’s rights are protected in this way. On the contrary, if the vandal is a good artist the punishment may even violate the rights of large numbers of people.

A punishment should be designed in such a way that it protects the rights of the victims and possible victims of the criminal who is about to be punished. This is the case when incarceration of a sexual maniac will protect the rights of his victim (although not retroactively) and of possible future victims, and such a punishment does seem to be what is required while avoiding the imposition of excessive harm on the maniac. In other words, there isn’t a more lenient sentence available which would offer the same protections to the rights of others while imposing less restrictions on the rights of the maniac. And neither is the punishment too severe for the purpose it serves, namely the protection of the rights of others.

But these “others” are not only the victims or possible victims of the criminal. Punishment is also signaling: by showing possible maniacs what happens to actual maniacs, we want to deter crime. Deterrence, like punishment, also protects the rights of others, “others” meaning here not the victims or possible victims of an actual criminal but the possible victims of a possible criminal. There is room for deterrence, but only when the deterrent effect is real, in other words when it really helps to protect the rights of others. We should be careful with deterrence, because deterrence means the instrumentalization of human beings. When there is doubt about a deterrence effect, and when at the same time the proposed punishment is very harsh, we should avoid designing the punishment with deterrence in mind. For example, if a very high fine for shoplifting has been shown empirically to deter a high percentage of possible shoplifters, then it would be morally justified to impose such a high fine on a specific shoplifter, even if a much lower fine would suffice to protect the rights of the actual and possible victims of this specific shoplifter. So this is an exception to the rule stated a moment ago.

On the other hand, if it can be shown empirically that the deterrent effect of capital punishment is doubtful, then we should not impose that punishment on a specific criminal, except when it is necessary to protect the rights of the actual and possible victims of that specific criminal. But when is this necessary? Often if not always we can find a more lenient sentence which will offer the same protections to the rights of actual and possible victims of an actual criminal, while imposing less restrictions on the rights of the criminal (e.g. life without parole).

2. The criminal acted with free will

We should assume that people generally have free will. There doesn’t seem to be room for moral responsibility or criminal culpability without this assumption. There can’t be criminals in a world in which everything is governed by “blind” cause and effect. People have free will when they have the capacity to choose a course of action from among a set of alternatives. If a criminal’s will and choice of action are not decided by himself, we can hardly say that he’s responsible for his actions. Only if he could have acted differently can he be held responsible for his actual actions. Imagine a brainwashed spy being sent abroad by his totalitarian government in order to kill political opponents. This person couldn’t have acted differently and didn’t have the capacity to choose from among different courses of action. Hence he can’t be held responsible for his actions.

We should start from the general assumption that people normally act on the basis of free will, but if we find that this assumption doesn’t hold in a particular case, then either criminal punishment is not justified or the punishment should be less severe. People can be determined to will certain ends without having been brainwashed. A drug addict for example suffers from a compulsive and controlling desire and has lost his free will. Addiction impairs the will. If he acts on the basis of this compulsive desire and commits a crime along the way, it’s common to take the absence of free will into account when determining the severity of the punishment. Both external manipulation of our psychology and internal compulsions can force us to do things we don’t desire or choose to do, and they can even force us to desire or choose things we wouldn’t freely desire or choose. (Hypnosis can also be an example). In either case, we are not culpable, or at least the level of our culpability is reduced.

3. The criminal did not act because of “force majeure”

Force majeure is a term for an action that is caused by events or circumstances beyond the control of the agent. For example, someone kills another person because he was instructed to do so by gunmen holding his children hostage. Sometimes, there are external constraints on the range of options we have, and things beyond our control can force us to act (or not act) in a certain way.

This condition should be distinguished from free will. It’s not because some external causes force you to act in a certain way that you lose your free will. You act in a certain way but at the same time you don’t have to want to act in that way.

4. The criminal was aware of alternative courses of action and of the moral significance of those alternatives

For example, if a criminal was convinced that he had no alternative and had to commit the crime, then he may not be culpable, even if in reality there were alternatives. Imagine the same case of the father being forced to kill by gunmen holding his children hostage. Maybe there was an easy and safe way for the police to free the children. However, if the father was unaware of this and executed the demands of the gunmen without contacting the police, then he shouldn’t be found guilty of a crime.

However, the father may have been culpably unaware: reasonable people can agree that he should and could have been aware of the possibility to involve the police, but he failed to do everything possible to examine the alternatives. In that case, he should be found guilty.

5. The criminal acted with intent

If the consequences of an action were not intended by the agent, then either he is not culpable or his culpability is diminished. This 5th condition should be distinguished from free will: an action can be undertaken with free will but without intending all the consequences that occur. A woman who is not acting compulsively (who is not addicted for example), who is not forced by external powers to desire things she would normally not desire or to do things she doesn’t want to do, and who reasonably reflected on possible alternatives, acts in a chosen way. To her surprise, her actions lead to someone’s death. She didn’t intend this outcome, and hence she’s not culpable, or at least her culpability is reduced.

6. The criminal caused the crime

There should be no doubt about the causal link between the criminal’s actions and the crime. Let’s elaborate the previous example: the woman caused the death by hitting the victim with her car. The victim didn’t violate any traffic rules for pedestrians. The woman wasn’t speeding compulsively. She wasn’t under hypnosis or forced to hit the victim by gunmen threatening her children. And she wasn’t culpably unaware of the risk of driving a car in that particular street. Moreover, there’s some medical doubt as to the actual cause of death. It seems that the pedestrian was suffering from a heart condition and a heart attack caused the pedestrian to stumble on the road. Hence the woman driver isn’t culpable.

7. The criminal is found guilty after a fair trial

Only if the rules on the fairness of criminal trials are respected can we impose criminal punishment. A person accused of a crime should be able to use a defense lawyer to guarantee that the judge takes all the 6 previous preconditions into account when sentencing. The trial should be public so that we can all see that criminal punishment is imposed fairly. Etc.

8. The criminal is found guilty on the basis of proper laws

The laws which the criminal is supposed to have violated should be universal laws. In other words, they shouldn’t be targeted at the criminal specifically. The rule of law imposes this restriction. Laws that are not equally applicable to all, including the legislators, are not proper laws, but simply a disguised form of the rule of man. Other rules of legislation should also be respected (no retroactive laws etc.).

Conclusion

If both judges and legislators keep these 8 points in mind when deciding the type and severity of the punishment that has to be imposed for a particular crime and on a particular criminal, then we will, in all likelihood, be able to avoid some of the worst injustices in our current criminal justice system. We won’t have overpopulated prisons, we won’t incarcerate people for silly offenses or lock them up for years and years for a crime that merely requires a few months, and we won’t use capital punishment as often as we do now.

Related Articles

• Saudi ‘faces spine-op punishment’ (bbc.co.uk)
• Homeless Man Freed Early After 13-Year Prison Stint For Stealing Food (homelessness.change.org)
• Bailiffs should visit offenders’ homes to make them pay for their crimes, Louise Casey says (telegraph.co.uk)
• What is a Civil Penalty? (brainz.org)

Discrimination (7): Statistical Discrimination v. Background Checks?

Employers often use background checks before deciding to hire someone. For example, they may check the criminal record of job candidates, their credit scores, health history etc. It’s somewhat understandable although not always acceptable that they are reluctant to hire someone who has been in jail, has been sick for a long time, or has proven to be undisciplined by not paying her bills.

Let’s focus on ex-convicts for the moment. These people have a hard time as it is, sometimes even for no good reason because they shouldn’t have been incarcerated in the first place (I argued here that many countries, and especially the U.S., put too many people in jail). So, allowing employers to use criminal background checks can force ex-convicts into a vicious circle: unable to find a job, they may be forced to go back to crime.

Furthermore, there’s a racial aspect to all of this: in the U.S., African Americans are more likely to be ex-convicts. According to some, this racial discrepancy is precisely the reason to allow criminal background checks. If employers aren’t allowed to check individual candidates, they will resort to statistical discrimination: they know that blacks are more likely to have a criminal record and so they won’t hire any blacks at all, just to be safe.

However, if you espouse this argument in favor of background checks, you essentially want to make things better for one disadvantaged group – blacks, who are generally disadvantaged in employment, see here – by making things worse for an even more disadvantaged group, namely ex-convicts. And that’s assuming that employers will hire more black people if they can use criminal background checks; but assuming that means assuming there’s no racism. Helping a disadvantaged group by harming an even more disadvantaged group is plainly absurd, and you can only fail to see that it’s absurd if you have an overriding fear of government regulation. Regulation should be kept in check but not at any price. I think in this case regulating businesses and outlawing background checks is the appropriate thing to do.

Let’s turn briefly to another type of background check: credit scores.

[M]illions of Americans, as a direct consequence of looking for work, have lower credit scores. … The use of credit checks in employment decisions should be banned. It is a form of discrimination against the poor — the codification and enforcement of class barriers. It is therefore a form of discrimination against those groups more likely to be poor. (source)

It seems there’s a

growing tendency of HR departments to check the credit scores of potential employees apparently deeming this data to be an important predictor of employee behavior. This creates a Catch-22 scenario for the unemployed where you can’t improve your credit score unless you get a job and you can’t get a job until you improve your credit score. (source)

Apart from the obvious fact that credit scores seem to be a type of knowledge that is much less useful for an employer compared to a criminal record – if your house burned down and your credit score is low as a result, does that make you a bad employee? – there’s a real issue for the poor here. They shouldn’t be discriminated against just for being poor. It’s not just a lack of conscientiousness or discipline that can lower your credit score. Back luck and poverty won’t help either. Some say the free market and competition will take care of this: employers stupid enough not to hire good poor people simply because they have a credit problem will lose out. Their competitors who don’t engage in credit checks will hire them, and those businesses will acquire a commercial advantage. I don’t know. Seems awfully optimistic to me.

By the way, all this is another reason to make unemployment insurance more generous:

I’d rather see our energy focused on longer-term, more generous unemployment benefits that might keep some people from trashing their credit while they look for a job. (source)

Related Articles

• Are Businesses That Use Background Checks in Hiring Guilty of Discrimination? (race.change.org)
• Background Checks in Hiring: Discrimination or Due Diligence? (blogs.wsj.com)
• EEOC: Employers can’t refuse to hire convicts (hotair.com)
• How Job Screening Can Become Discrimination (abcnews.go.com)

Migration and Human Rights (34): The “Criminal Immigrant” Stereotype, Ctd.

I presented some data debunking the criminal immigrant stereotype a few times already. It’s simply not true that immigration leads to an increase in crime rates. True, immigrants are often – but not always – relatively poor, undereducated and – initially at least – not well adjusted to their host community. But none of that seems to be a sufficient reason for higher crime rates among immigrants.

On the contrary, there’s some evidence here of immigration actually reducing crime rates:

During the 1990s, immigration reached record highs and crime rates fell more precipitously than at any time in U.S. history. And cities with the largest increases in immigration between 1990 and 2000 experienced the largest decreases in rates of homicide and robbery. … Wadsworth contends that looking at crime statistics at a single point in time can’t explain the cause of crime rates.

Using such snapshots in time, Wadsworth finds that cities with larger foreign-born and new-immigrant populations do have higher rates of violent crime. But many factors—including economic conditions—influence crime rates.

If higher rates of immigration were boosting crime rates, one would expect long-term studies to show crime rising and falling over time with the influx and exodus of immigrants. Instead, Wadsworth found the opposite. (source)

There’s yet another study here showing that Hispanic Americans are less violent than whites or blacks.

A simple juxtaposition of immigration trends and crime trends can already make clear how silly it is to claim that higher immigration rates produce higher crime rates:

(source)

Property crime rates in the United States (1986-2005) Source: FBI Uniform Crime Reports

What could be the explanation? Why does immigration reduce crime rates? Maybe the culture and religion of the immigrants has something to do with it. Or maybe it’s true that people migrate because they want to have a better life, and that engaging in crime is incompatible with this motivation. Or perhaps the fact that immigrants tend to live in extended families and close-knit communities discourages crime.

I’ve said it before: although correlation doesn’t always equal causation, these numbers are compelling, even if we accept some possible caveats (illegal immigrants, when committing a crime, are perhaps more likely to flee abroad and hence not end up in incarceration statistics, and there may be some underreporting of crime in communities with a lot of illegal immigrants). Politicians should therefore stop exploiting irrational fears about immigrant crime for their own partisan gain. You don’t solve the crime problem by closing the border, and certainly not by ignoring overwhelming scientific evidence.

Related Articles

• Massive Drop in Crime Accompanies Major Wave of Immigration (criminaljustice.change.org)
• Fox: Confusion on illegal immigrants, crime (boston.com)
• New study on challenges ‘immigrant criminality’ theory (thegrio.com)
• more illegal immigrants does NOT = more violent crime (schansblog.blogspot.com)

Human Rights Maps (100): Crime Rates in San Francisco

Usually, maps about violations of people’s security rights or property rights are like this or this: informative but rather boring as well. Here’s a novel approach to statistical maps:

(source)

More on prostitution here and here. More on private property rights and on the war on drugs. More human rights maps.

Ironic Human Rights Violations (6): Self-Fulfilling Gypsy Prophecy

A man was jailed by a Kemerovo region court on Thursday for assaulting a Gypsy fortune teller [not in the picture] who predicted that he would be jailed, the Investigative Committee said.

Gennady Osipovich tried to kill the unidentified female fortune teller, who told him she saw a “state-owned house” — a Russian euphemism for jail — in his future, the committee said in a statement on its web site.

The woman managed to escape, but Osipovich stabbed to death two unidentified witnesses of the assault, which took place in October. He was sentenced to 22 years in a maximum-security prison. (source)

More ironic human rights violations. More about “Gypsys“. More about Russia.

Related Articles

• France Deports “Gypsies”: Courting the Xenophobia Vote? (time.com)

The Most Absurd Human Rights Violations (63): A Spine For a Spine

An interesting case of lex talionis:

A Saudi judge has asked several hospitals if they are willing to damage a man’s spinal cord as punishment for a cleaver attack that left a 22-year-old paralysed.

The victim, Abdul-Aziz al Mutairi, became paralysed and subsequently lost a foot after a fight more than two years ago.

An unnamed man was sentenced to 14 months in prison for the assault, but released after serving only half that time.

The shortened jail time has reportedly enraged Mr Mutairi’s family. His 27-year-old brother Khaled said they want an equivalent punishment for the attacker and have appealed to a judge in northwestern Tabuk province.

“We are asking for our legal right under Islamic law,” the brother said. “There is no better word than God’s word – an eye for an eye.”

The judge has since asked several hospitals if medical paralysis was possible and would they perform the operation. (source)

More on Saudi Arabia, on lex talionis, and on Sharia. More absurd human rights violations.

Related Articles

• Spine for a Spine: Saudi Judge Seeks Doctors To Paralyze Defendant Under Sharia Law (jonathanturley.org)
• Saudi Judge Considers Damaging Man’s Spine (abcnews.go.com)

Discrimination (6): Should People Be Liable For Unconscious Discrimination?

First of all, it’s evident that people often have unconscious motives for their actions. For example, parents “wishing the best” for their children can act out of frustration about their own past failures. So it’s likely that some acts of discrimination are based on similar “deep” motives. Some of us who genuinely believe that we are colorblind may still avoid black neighborhoods at night, cross a lonely street when a tall black male comes our way, or favor a CV sent in by someone with a “‘Caucasian” name. Tests have shown that people are more biased than they admit to themselves. (You can test your own racism here).

So we may be violating anti-discrimination laws without “really” and consciously wanting to. You could say that in such cases we shouldn’t be prosecuted for breaking the law, because there is no intent on our part. Discrimination takes place but no one really wants it to take place. True, normally there’s an intent requirement when deciding liability: if you drive your car and you hit someone who crosses the road where he or she shouldn’t do so, you’re not criminally liable. You killed a person but didn’t intend to. In some cases, the lack of intent diminishes rather than removes liability: if you’re in a fight with someone and the other person dies because of your actions, you won’t be charged with homicide but with the lesser crime of manslaughter if you didn’t intend to murder.

As the example of manslaughter already makes clear, intent isn’t always necessary for liability (another example would be Eichmann). Hence, lack of intent can’t be the reason not to make unconscious discrimination a crime.

Anyway, intent or the absence of it is often very difficult to prove. In the case of homicide/manslaughter, you can use witness accounts or physical evidence, you can reconstruct the crime and try to figure out if the killing was planned or intended, or you can interrogate the perpetrator, and even then it’s rarely easy. Things seem to be much more difficult still in cases of unconscious discrimination. Looking for intent is basically trying to look inside people’s minds, which isn’t obvious, and when people fool their own minds it’s becomes even harder.

If we accept that unconscious discrimination should be a crime in certain cases, and perhaps equivalent to conscious discrimination, then the problem is how to prove that it took place. In the case of conscious discrimination, you can often rely on the utterances of the person(s) who discriminate. That’s evidently impossible in the case of unconscious discrimination. Perhaps you can’t prove it in individual cases – if one black person’s CV is rejected, it’s probably impossible to say it’s because of implicit or unconscious racism. However, if a company rejects a large number of such CVs, and correcting for other factors such as education or skill level doesn’t remove bias in the distribution, then you may perhaps have evidence of discrimination (that’s a technique that’s useful in cases of conscious discrimination as well, by the way). So you would need to rely on statistical analysis, something that usually isn’t done in the determination of criminal liability. It’s not because x % of all killings are manslaughter that everyone charged with a killing has x % change of “getting away” with manslaughter. The decision to sentence someone for the crime of murder or manslaughter is always made on an individual basis and not a statistical one, although past conduct of the suspect can sometimes come into play.

An additional difficulty: if we accept that laws aren’t only meant to punish but also to prevent and deter, it seems that the latter goal is futile in the case of unconscious discrimination. People who are not aware that they engage in discriminatory activities will hardly be persuaded by laws telling them to stop doing so.

I’m personally not yet ready to take a firm position on these issues. For more information on this topic, take a look at this interesting paper.

Related Articles

• Unconscious bias is real challenge (seattletimes.nwsource.com)