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.

What Makes People Care About Human Rights?

Clark Gable in “Gone With the Wind”

Human rights are not like music or love, things people care about for their own sake or for the pleasure or happiness they provide. If people care about human rights they do so because they view those rights as means to achieve some other goals or purpose. I personally see the following reasons why people care about human rights.

Signaling

Human rights function as signaling tools (see also here). People who engage in human rights talk don’t necessarily have as a first priority the goal of improving respect for human rights, but perhaps only want to convey some meaningful information about themselves and use human rights talk to do that. They may of course improve respect for human rights along the way, sometimes unwittingly (for example because their talk contributes to a culture of human rights), but human rights are valuable to them primarily because they allow them to communicate certain things about themselves. For example, it’s possible that some of the people who are very expressive about perceived discrimination of a particular minority group may be primarily motivated by a possible leadership position within that minority group. Their human rights talk signals leadership aspirations. This kind of reason to care about human rights is not by definition useless for the promotion of human rights – it can advance the cause of human rights – but it’s obviously not the best possible reason.

Self-interest

Human rights promote people’s self-interest. That’s obviously true for their own rights, but also for the rights of others. I’ve written here about the ways in which people may view the promotion of the rights of others as a means to protect their own self-interest. This reason to care about human rights is more beneficial to the cause of human rights than the signaling reason, but it’s still not the best possible reason. People’s self-interest does not advance all human rights of all other people.

Values

People may believe that human rights promote some of their cherished values or ideals, such as freedom or equality, for themselves and for humanity in general. Like the previous two reasons for caring about human rights, this reason will only advance the cause of human rights contingently: if freedom is what you care about, you will only promote human rights to the extent that they enhance freedom, and only those rights that enhance freedom.

It’s not true that freedom is served by all human rights all of the time, at least not if you adopt a restrictive definition of freedom. For example, those human rights that guarantee a basic standard of living are not clearly meant to enhance the freedom of poor people – within the bounds of a certain definition of freedom - and they may even limit the freedom of those who have to contribute the means necessary to guarantee a basic standard of living for others. Conversely, if you’re an egalitarian and equality rather than freedom is what you care about, then you may not feel especially attached to the right to property for example.

Humanity

People may cherish rights because they believe human beings are uniquely valuable creatures who should be treated in a certain way. For example, you may believe that people deserve to be treated with dignity and respect. Or that they deserve to have their autonomy protected. Or that people have been created by God in His image and that this requires a certain treatment. Human rights are then viewed as means to achieve this treatment. Compared to the previous reasons to care about human rights, this reason is potentially more inclusive and wide-ranging and less contingent on facts about personal motivation. However, it depends on a substantive and inherently controversial philosophy about human nature, dignity or religion.

Evil

Conversely, people may cherish human rights, not because of their views about the inherent worth of human beings, but because of the evil inherent in humanity. Human rights are necessary not because they protect the good in people but because they protect people from the evil in others.

Related Articles

• Human Rights and Utopia (filipspagnoli.wordpress.com)

Human Rights and International Law (23): The Dilemma of Treaty Ratification Rates

1899, US Senate Ratifies Treaty of Paris

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In the case of human rights treaties, we face a tough choice: should we aim at universal/near-universal acceptance and ratification, or should we instead limit ourselves to the goal of “real” or meaningful acceptance and ratification? The problem with human rights treaties is that ratification is almost costless. A country can ratify them even if it has no intention of respecting their provisions, because it knows that lack of respect will not result in any serious harm. The same is not true for other types of treaties: a country ratifying a military collaboration treaty, a fishery treaty etc. knows that non-respect of the treaty provisions can lead to harmful retaliation by other treaty signatories or fines imposed by some international institution.

The relative costlessness of human rights treaties means that most if not all countries will readily accept them. They can only gain: signaling support for human rights by way of treaty ratification can even reduce outside pressure for better rights protection. After all, a country that signals willingness to respect human rights should have more leeway than a country that openly and willingly violates those rights.

Hence, near-universal ratification rates are a natural outcome in the case of human rights treaties. Some argue that instead of pursuing the commonly accepted goal of near-universal ratification of human rights treaties, we should instead aim for “real” and meaningful acceptance; in other words, acceptance only by states that do intend to implement the treaties’ provisions. States that would sign the treaties simply to signal a positive attitude towards human rights and to relieve outside pressure should therefore be excluded from ratification.

Exclusion means raising the cost of ratification – for example by way of preconditions for acceptance incorporated into the treaties or by way of effective sanctions in case of non-respect. This in turn means that treaty ratification rates will be brought down.

All of this sounds reasonable at first sight, but it does create a dilemma. Treaty ratification, even if it is at first mere signaling by an authoritarian state that doesn’t have any intention of respecting the treaty, can have beneficial effects over time. By making “fake” or “shallow” ratification more difficult we would also destroy those beneficial effects. What kind of effects am I talking about? Well, for instance, a treaty can promote a human rights culture. When a state accepts a treaty, even if only for the purpose of international signaling, it also signals, inadvertently, to its own population: it signals that human rights are becoming universal moral norms. The state therefore can’t help but increasing the legitimacy and salience of human rights, and its oppressed population can use this fact: it can wield the language of human rights in a more effective way than before, both against the state and in order to rally support.

Hence, we may see an effect of treaty ratification going in two opposite directions: shallow ratification my reduce outside pressure against the ratifying state, but may also increase inside pressure.

So it’s not obvious what we should do. Should we aim at near-universal ratification, or at meaningful ratification? Both strategies have pros and cons. Near-universal ratification may reduce the meaning of human rights – if even the worst dictator can ratify a human rights treaty without any significant cost, then human rights will lose their appeal. We may even increase the number and severity of human rights violations because states that signal adherence to human rights will see a reduction of international pressure. On the other hand, making ratification more costly will reduce the number of ratifications, which in turn will reduce the moral stature of human rights and will make it more difficult to argue that human rights are universal.

I’m not ashamed to say that I can’t see an easy way out.

More posts on this series are here. Some data on treaty ratification rates are here. More dilemmas are here.

The Causes of Human Rights Violations (40): Polarization as a Novel Way of Violating the Right to Free Speech

The traditional ways of silencing people are still all too common: libel or blasphemy laws, threats, the physical targeting of journalists, censorship, book burning or indexing, political correctness, exaggerated respect for people’s sensibilities etc. However, the silencers have developed new and increasingly sophisticated means. And I’m not thinking about tactics like internet filtering – this is indeed a new and sophisticated technology, but in essence it’s just a new form of book burning.

I’m thinking more about things like polarization as one of those new ways of silencing. A commonly cited justification of free speech is that it can help people to influence each other and spread their beliefs. We hold strong beliefs, we think we have good reasons supporting those beliefs, and we want to express these beliefs and these reasons in an attempt to convince others. Free speech helps us to do so.

At least, that’s the case in theory. In real life, this “marketplace of ideas” is dysfunctional. Many groups in society are not arguing, convincing or engaging in public thinking. Instead, ideas are expressed as claims rather than argued for. Expression, if you like, is limited to “brute” expression. One of the reasons for this is that expression can be motivated, not by the willingness to persuade, but by the need to show one’s identity or belonging. In other words, expression is signaling rather than arguing. Another reason for the lack of argumentation is the fact that a lot of expression is about being controversial and outrageous, antagonizing other groups on the polarized spectrum, provoking a “media storm” and cashing in on the advertizing generated by the ensuing pageviews, clicks or whatever.

If ideas aren’t debated but expressed in a “brute” way only, for whatever reason, then polarization is inevitable. No one is convinced by the brute expression of an idea or opinion. And if no one is convinced, then people stay in their respective camps. These camps then drift further apart because absent an exchange of reasons for beliefs, people start to see other groups as increasingly strange, alien and incomprehensible.

Calvin and friend having an argument

Now, polarization is of course nothing new, but I can’t help thinking that nowadays some people in positions of power are actively encouraging polarization as a means to silence debate, consciously or not. People in positions of responsibility, people who could use their power in order to organize and protect debate, use it instead to promote brute expression and hence to stifle the exchange of arguments and to polarize society. Think of news network owners, politicians, many journalists etc. These people are interested in polarized expression rather than debate, particularly the type of polarized expression that is mildly upsetting to other groups because that brings in the readers, page views, ratings and the corresponding advertizing dollars. The silencing that occurs here is not the silencing of expression but the silencing of argumentation and debate. Opinions are still expressed but no longer argued because argumentation – compared to a blunt statement of a controversial opinion - doesn’t provoke and hence doesn’t produce income.

Why do people actively promote the brute expression of ideas and the silencing of debate? Because of the dollars, of course, but also because it diminishes some discomfort. When there’s only brute expression, we can avoid having to examine our beliefs, defend them and possibly change them. We all value consistency in our basic beliefs and we don’t always want to take the trouble arguing for them or responding to arguments against them. If we are shielded from arguments in the media, then we don’t have to take these argument into account. And that’s relaxing. However, the result is polarization because the flip-side of the relaxation offered by the absence of arguments is the increasing alienation from people holding other beliefs: we are also shielded from the arguments these people have (or could have) for their own beliefs, and hence these beliefs start to seem strange, bizarre and not something we want to be involved with.

More on polarization here.

Political T-Shirt (18): Human Rights Signaling

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Why do people put human rights slogans/quotes/appeals on their t-shirts? (If you want examples, look at the other posts in this series). I think it’s reasonable to assume that it’s not because people believe t-shirts can change the world. Maybe they think t-shirts will help to convince a few who have other opinions, although I guess convincing takes more effort than wearing a t-shirt. It’s probably all about human rights signaling.

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• Man says Montreal theme park ordered him to cover up Bob Marley T-shirt (thestar.com)

What is Democracy? (57): A System For Signaling Disapproval of the Weather

I already mentioned the fact that a country’s economic performance determines to a large extent the outcome of democratic elections, irrespective of the causal link between this performance and the policies or behavior of elected officials. I also stated my disappointment: ideally, democracy is more than a system for signaling disapproval of the economy; it should be a process of judging the desirability and effectiveness of the policies (and proposed policies) of politicians (and candidates). This process is meant to improve the quality of policies (through trial and error) and to guarantee that policies correspond to the wishes of the people (wishes which have themselves been improved through deliberation). Just voting out the “damned bastards” because the economy is tanking, even if those “bastards” prevented worse, is not an approximation of the ideal.

However, things seem to be even worse than this. Although economic performance should not be the main criteria for judging politicians – the economy is determined by many different things, and policies only play a limited role – it does make sense to make it part of the evaluation: in some cases, there’s no doubt that politicians can harm or benefit the economy, and all politicians have some influence on it. The same isn’t true for the weather, and yet there’s evidence that voters use elections to signal disapproval of that as well:

We find that voters regularly punish governments for acts of God, including droughts, floods, and shark attacks. As long as responsibility for the event itself (or more commonly, for its amelioration) can somehow be attributed to the government in a story persuasive within the folk culture, the electorate will take out its frustrations on the incumbents and vote for out-parties. Thus, voters in pain are not necessarily irrational, but they are ignorant about both science and politics, and that makes them gullible when ambitious demagogues seek to profit from their misery. (source, source, source)

Obviously, politicians shouldn’t be punished for natural events, but they should for mishandling the aftermath (rescue, rebuilding, future prevention etc.). The latter should be part of democracy as a decent ideal. Politicians should be judged on the way they handle the aftermath of weather events, especially given the fact that some such events become a disaster only because of the political or governmental reaction to it (or absence of a reaction).

However, many natural disasters that used to be considered purely natural events are now believed to be at least partially man-made (for example, global warming may provoke hurricanes). Hence it’s not always irrational to blame politicians for the weather itself, rather than for their handling of the aftermath of weather events. What is irrational is the attempt, contrary to the scientific facts about natural and political causation, to blame politicians for natural events or their aftermaths when those events or aftermaths are not clearly manmade.

More posts in this series are here.

A Fatal Paradox for Human Rights Proponents?

Like the opponents of human rights, the proponents also face a paradox. Imagine human rights utopia: the world has managed to get rid of oppression, domination, exploitation, discrimination, injustice and suffering. Or perhaps human rights violations haven’t disappeared completely but people have managed to make them a rare occurrence. People find it easy to be moral and to respect the rights of others, and there’s hardly ever a slip-up.

However, we could argue that this world has lost something important. It’s undoubtedly better in one sense of the word, but at the same time it’s worse: people have lost the opportunity to show solidarity, to be charitable, to help each other and to strive towards moral heroism.

Because of the risk that a successful struggle against human rights violations results in this loss (only a potential risk at this moment in time), we should perhaps value the struggle itself, and not just the successful outcome. But then we value the struggle and at the same time we are upset about it. We are upset because we obviously believe it is a struggle that we should end victoriously as quickly as possible, but at the same time we value it because we believe that it’s generally a good thing for people to be working towards a moral goal and to act benevolently (we may also value the struggle because it allows us to signal our own personal moral worth, but that’s another point).

So, paradoxically, we want to win the struggle for human rights as quickly as possible because rights violations are evil; but at the same time we want to cherish and perhaps even prolong the struggle because of the moral value inherent in it. But that means that the struggle against human rights violations confers a certain value to these violations and makes them a bit less evil, which surely isn’t the purpose. If people are morally enriched and ennobled by the struggle against human rights violations, then it’s also these violations that enrich and ennoble. But of course we cannot acknowledge this because we want to abolish those violations; we can’t desire to abolish them and at the same time claim that they have value. If you start to see good in evil, you endanger your mental health.

More on human rights and utopia here, and on human rights and paradoxes here, here and here.

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The Causes of Human Rights Violations (30): Language

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The effect of language on human rights can be straightforward, as in the case of hate speech. Imagine an individual member of a racial minority living among members of the majority. The latter are constantly hurling insults and hateful bile at this individual, making it almost impossible for her to move about the neighborhood, find employment and do many of the other things she has a right to do. In this case, a particular type of language and a particular use of this language has obvious repercussions on someone’s human rights.

But what I’m interested in here are more subtle effects of language on human rights. Take the example of the gender-exclusive pronoun. In most languages, personal pronouns distinguish male from female, and the male pronoun is the default: when we’re not talking about a specific person, or when we’re talking about a mixed gender group, then we use the male pronoun. (This is similar to the equally common rule that children should get the surname of the father). Attempts to invent and promote gender-neutral or gender-inclusive pronouns haven’t quite succeeded, and the habit of using the female pronoun as the gender-exclusive one is often considered awkward. I also fail to avoid the traditional rule in my writing. In general, this problem is often labeled a fake one, invented by people high on political correctness.

And yet, the problem isn’t fake at all. Compared to other, more extreme uses of language such as hate speech, the harm done by the use of gender-exclusive pronouns may be small, but it’s not negligible. There’s a study here that tries to measure the harm:

Three studies assessed whether a common cultural practice, namely, the use of gender-exclusive language (e.g., using he to indicate he or she), is experienced as ostracism at the group level by women. Women responded to the use of gender-exclusive language (he) during a mock job interview with a lower sense of belonging, less motivation, and less expected identification with the job compared to others exposed to gender-inclusive (he or she) or gender-neutral (one) language (Studies 1 and 2). Moreover, the more emotionally disengaged women became over the course of a job interview upon hearing gender-exclusive language, the less motivation and job identification they subsequently reported (Study 3). Together, these studies show that subtle linguistic cues that may seem trivial at face value can signal group-based ostracism and lead members of the ostracized group to self-select out of important professional environments.

Another study focused on the use of gendered words in job ads, and found that ads signal whether a job is typically held by men or women. As a result of this signaling, women are less likely to apply to certain jobs, and this in turn perpetuates gender inequality in the workplace. Wording differences in ads affect the job’s relative appeal to men and women, independent of the type of job. The use of more masculine wording such as “competitive” makes traditionally female-dominated jobs more appealing to men, and vice versa.

In both these examples – gender-exclusive pronouns and gendered language in job ads – women respond – or are made to respond – in an unconscious way so as to perpetuate gender inequality.

A similar example of language affecting human rights is called stereotype threat: when the belief that people like you (African-Americans, women, etc) are worse at a particular task than the comparison group (whites, men, etc) is made prominent through some kind of preliminary “information” or briefing, then you perform worse at that task. For example, if a group of girls about to take a mathematics test, is “reminded” that boys tend to do better on this type of test, it’s likely that the girls will do more poorly on the test than they would have done had they not been told. It’s not difficult to imagine cases in which this can be used in order to perpetuate inequality, submission and domination. (More on stereotype threat here and here).

I just mentioned signaling, and signaling in the more strict definition of the term – engaging in speech or activity not necessarily for the sake of this speech or activity but in order to convey relevant information about yourself (for example, people acquire an education and talk about it not only because they want to be educated but also because they want to signal ability to potential employers) – is yet another example of the way in which language affects human rights. Take the case of capital punishment: I strongly believe that this is not about fighting crime, just retribution or desert, or even anger and revenge. Proponents of capital punishment, by expressing their support for it, signal their own moral rectitude. This is especially important for politicians, elected judges etc. In other words, for those who could, if they wanted, end the practice. (More on human rights and signaling is here).

Obviously, language doesn’t always have a negative effect on human rights. It’s easy to find examples of a positive effect: storytelling can promote empathy, and language aimed at shaming people can rid the world of rights violations when reasoning is insufficient.

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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.

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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)

What is Democracy? (55): A System For Signaling Disapproval of the Economy

statistics cartoon by R. Crumb

(source)

“It’s the economy, stupid“. The famous phrase suggests that economic basics rather than social or cultural issues, politicians’ personal merit, foreign policy successes etc. determine democratic outcomes. People vote against incumbents when unemployment is high and GDP growth low, whatever the causes of the economic downturn. One can accuse George H.W. Bush of many things but he wasn’t by far the sole or main cause of the recession that propelled Clinton to power.

It seems that people use democratic elections – especially high profile one such as presidential elections – to signal disapproval of the economy, whatever the real responsibility of individual politicians for the state of the economy (it’s silly to assume that individual politicians, even American presidents, have the power to dramatically change the unemployment rate, for better or worse).

This graph shows a clear correlation between incumbent margins of victory in US presidential elections and changes in the unemployment rate:

incumbent margin of victory vs change in unemployment rate

(source, incumbents running for a second full term won when the unemployment rate was falling and they lost when it was going up)

The unemployment rate in 1980 was 7.2%, up considerably from the year before; Jimmy Carter duly lost his bid for reelection. In 1984, the unemployment rate was actually higher at 7.5%, but was on its way down from the previous year; Ronald Reagan was reelected in a landslide. (source)

Granted, the number of observations is low, too low to be certain about the correlation (and others have expressed doubts about the data).

Some more certainty is given by the fact that it’s not just unemployment but also income that is correlated with election results:

(source)

If we assume that the economy does indeed determine democratic outcomes in this way, then we face a problem because some of the traditional justifications of democracy become unavailable. Democracy is supposed to improve the quality of politicians: when a politician has to face popular judgment and has to pass the test of accountability, she will try harder to respect the will of the people, to avoid engaging in corruption and to generally do a good job, because doing so will convince the people that she deserves reelection. Also the freedom of the press is in part justified on this basis. A free press is able to give people the information about politicians necessary to make an informed judgment at the next election. Government transparency combined with accountability as a prerequisite for reelection provides politicians with the necessary incentives to do a good job, or at least a job that is considered good by an informed majority of public opinion.

If, however, democratic election results are determined less by the actual way in which politicians do their job than by the economic basics, then we lose this justification. If a politician won’t be reelected during an economic downturn, even if she does all that’s humanly possible to avoid it or lessen its impact, she has one less reason to do her best. She may still do her best out of a sense of responsibility or public service and remain unconcerned by electoral prospects, but we should not underestimate the motivation provided by the mere fact of having and retaining a position of power.

More posts in this series are here. More on signaling here, and on accountability here.

Human Rights Facts (55): Helping the Poor by Giving Them Money

I posted before about a surprisingly successful method of helping the poor in developing countries: just give them money. Many of the supposed disadvantages of this method – people waste the money, transfers fuel inflation or create dependence, the money goes to the wrong people, is taken away by “patriarchs” or others, erodes the incentives to work etc. – don’t seem to materialize. And it’s fast and cost-effective compared to other types of development aid (no shipping costs for commodities, no risk of diversion of funds by corrupt governments, etc.). It also signals to the poor that they are viewed as responsible agents rather than dependent objects of assistance.

A variation of this system is called Conditional Cash-Transfers (CCTs): poor people get cash (or sometimes food supplies) if they meet certain conditions, e.g. send their children to school or have their babies vaccinated. Millions of people around the world are already benefiting from CCTs. These transfers are successful for many reasons, but an important one is that they allow the smoothing of income: poor people’s income is usually very volatile, with ups and downs, the downs being more frequent of course. CCTs give the poor a measure of income certainty, relieving the stress of not knowing if tomorrow they’ll have enough to survive another day. The added advantage of CCTs, compared to unconditional transfers, is that the children profit twice: their families have more income, and the conditions attached to the transfers usually benefit the children specifically.

Related Articles

• Just Give Money to the Poor? A Surprisingly Effective Solution to Poverty (alternet.org)
• Cash transfers cannot revolutionise aid | Sebastian Taylor (guardian.co.uk)
• Poor people in Leyte town to get cash subsidies from gov’t (newsinfo.inquirer.net)
• Direct transfers could end bureaucratic top-down foreign aid | Michael Edwards (guardian.co.uk)
• $59M loan from World Bank aimed at helping RP’s poor (newsinfo.inquirer.net)

Why Do We Need Human Rights? (15): Is Human Rights Talk Mere Signaling?

There’s certainly a lot of signaling going on in human rights talk. People who engage in human rights talk don’t necessarily have as a first priority the goal of improving respect for human rights, but rather want to convey some meaningful information about themselves and use human rights talk to do that.

For example, it’s possible that some of the people who are very expressive about perceived discrimination of a particular minority group may be primarily motivated by a possible leadership position within that minority group. Their human rights talk signals leadership aspirations. Some allegations by torture victims may not be intended to stop a torture regime, but to signal extremist credentials to like-minded people. Also regarding torture, I’ve written not so long ago about a study suggesting that some governments sign torture conventions, not to rid the world of torture, but to signal ruthlessness: they sign the convention and just continue their torture methods, thereby telling their victims and their population in general that they are so powerful that they can voluntarily submit to laws and then deliberately and openly break them in the face of impotent international opprobrium.

Another example is the ritualistic condemnation of China’s human rights record. Western leaders, when visiting China or playing host to Chinese leaders, are expected to repeat some standard phrases about human rights in China. That’s what their national constituencies expect from them, and they grudgingly comply. It has become part of protocol, like kissing the Pope’s ring. It’s utterly meaningless because real action to pressure China is completely lacking. China knows this, but goes along and issues its equally ritualistic counter-claims of national sovereignty blah blah. The West signals that it cares about human rights; the Chinese leaders that they don’t.

Something similar is happening with universal jurisdiction. Countries engaging in universal jurisdiction often start court cases against foreign dictators, without the slightest hope of actually punishing and imprisoning those dictators, but at least they signal that the “world community” doesn’t silently accept atrocity. And perhaps they also signal their own country’s moral superiority. A lot of human rights talk seems to be about moral superiority.

Karl Marx

Karl Marx already identified signaling as a important function of human rights, although he pushed his point a bit too far. Human rights, according to him, are an ideology. An ideology pretends to be a description of the world but in reality it masks certain key aspects of it in order to maintain the economic status quo. It is an instrument in the continuation of the existing social order. Those who may threaten the status quo in a revolutionary way can be convinced by the ideology of human rights to work within the system and struggle for equal rights. However, these equal rights, according to Marx, can only deliver formal equality, not real equality. Only a revolutionary overthrow of capitalism can achieve the latter. Human rights signal equality but in reality serve to maintain class rule.

Those who benefit from the existing order and who are therefore part of the ruling class, will tend to produce and propagate ideologies. Religion is another example of an ideology, and one that works in much the same way as the ideology of human rights. Desires that can harm the existing order and the status quo - such as desires for equality – must be neutralized. The idea of the Christian paradise expresses certain desires for a better world but makes it impossible to realize them and to threaten the existing order. By convincing people that these desires can only be realized in the afterlife, the idea or better ideology of paradise pacifies relationships in this life. Why revolt if you know that equality and happiness are there for the taking in a future life? Especially when you will only get paradise if you respect morality in this life and when morality is often and conveniently incompatible with the consequences of revolt.

Religious ideology neutralizes desires by situating them in the afterlife. Religion is opium for the people, a drug that makes them forget the pain of this world, or at least convinces them to accept this pain, because pain can lead to revolt and those in power never like revolt. Something similar is inherent in the ideology of human rights. The use of force or coercion by the state in the defense of the right to capitalist property, for example, is not necessary when the poor can be convinced that property is a human right which is in their interest, rather than a right of the wealthy. The economic relationships and structures are maintained with political and legal force but also with legal ideology.

All ideologies are similar. Christianity can convince people to accept their situation by promising salvation in a future life, and the ideology of human rights does the same by convincing people, all people, that they have the same rights and that they are therefore equal. When this universality and equality of rights is accentuated, people do not see that others who have the same equal rights profit more from these rights. Human rights signal freedom and equality, and give the impression of guaranteeing freedom and equality, but in reality give those who are better off tools to improve their situation even more, and at the expense of the poor. Instead of real equality there is only legal and formal equality, and the latter takes us further away from the former because the rich can use their equal rights to promote their interests. Rights, according to Marx, give us the freedom to oppress rather than freedom from oppression.

Human rights, he says, are a set of false ideas that have to cover up class rule and make it acceptable. The continuation of inequality by political and legal means is based on the combination of coercion and false consciousness. Christians are equal in heaven and thereby maintain inequality on earth, and believers in human rights are equal in the heaven of their political ideals and thereby forget the inequality that these ideals help to maintain.

I think that view is far too pessimistic and takes the signaling thing way too serious. It ignores the transformative power of human rights. There is signaling going on in human rights talk, but a lot of other stuff as well. Some talk is really aimed primarily or exclusively at a real transformation of reality toward a higher level of human rights protection. And a lot of that talk really works in the sense that life is changed by speech. Sometimes human rights aren’t about human rights, but often they are.

Human Rights and International Law (20): Ratifying the Convention Against Torture With the Express Purpose of Torturing Anyway

There’s an interesting paper here arguing

that torturing regimes may deliberately sign the Convention Against Torture intending to violate it, in order to signal to domestic opponents that they are so determined to hold on to power they will torture them in spite of the cost they incur for treaty violations. … “Messrs Hollyer and Rosendorff believe the intent [of signing the treaty] is to show how dedicated the regime is to maintaining power, how much it will sacrifice. But there is another possible signal: the regime shows its opponents that it knows international pressure cannot disturb its grip on power in the slightest”. (source)

[A] regime that tortures its opponents and refuses to sign the Convention Against Torture shows that it fears international opprobrium. A regime that tortures its opponents and blithely signs the Convention Against Torture anyway shows that it fears nothing. (source)

This is the proper occasion to link back to an older post of mine on the difference between normative universality and real universality. More on torture. More posts in this series.

Children’s Rights (12): Child Soldiers, Why and How?

Why are children recruited for warfare? Why not just use adults who are likely to be more capable and reliable soldiers? There’s an interesting paper here looking at some of the reasons:

• Children are relatively easy to abduct, subjugate, and manipulate. They are more impressionable and vulnerable to indoctrination, and their moral development is incomplete and malleable.
• They are also seen as more loyal and less threatening to adult leadership.
• Children, despite their a priori disadvantages in terms of fighting skills, may have a particular functional value. They may be suitable for menial logistical support of the armed group, or they may even have certain tactical advantages: they can slip through enemy lines unnoticed, making them effective spies and bomb carriers. Also, the proliferation of inexpensive, lightweight weapons has made it easier to use children as soldiers. These small arms are easy to transport and use with little training.
• Rebel groups also make simple cost-benefit analysis: children require less food and no payment. Punishment of children is also less costly. Child soldiers are financially attractive. Rebel groups may be extremely resource-constrained and forced to recruit children.
• The use of child soldiers can present a moral dilemma to enemies: should they kill children?
• Rebel groups may recruit children in order to signal seriousness, commitment and ruthlessness, and thereby instill fear in the enemy.

How are child soldiers recruited? Patterns of recruitment of children vary according to the context. It’s usually a mix of punishment, promises of rewards and indoctrination.

• The recruitment of children is facilitated when they are forced to participate in an assassination (perhaps of one of their relatives, parents or friends). The objective is to break their will. The forced killing of relatives also destroys a child’s outside options: if the child were to flee, it has no place to go to, or the community may reject the child because of what it did.
• Armed forces will also destroy other outside options for children: schools, villages, farms etc.
• Armed forces abuse children’s feelings of desperation and traumas resulting from previous situations of extreme violence.
• Armed forces also abuse certain motivations of children: children may join armed forces because of the desire to take control of events, or because of the protection offered by being at the shooting end of a gun.

More on child soldiers here and here.