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The Point of Prisons

Officer Derek Chauvin became infamous for the violence he perpetuated against George Floyd. The Black American’s death, while pinned under the knee of a white cop, launched nation-wide protests in 2020 and led to a 21-year sentence for Chauvin. Despite electing to go to federal prison instead of state prison for safety reasons, Derek Chauvin was stabbed on Friday, November 24th. As of November 26th, his survival seems likely, but the incident nonetheless bookends a story of government failure. First, violence was enacted by Chauvin as an agent of the state, and then violence was enacted against Chauvin while in federal custody. It also fits the arc of a national conversation about prison reform, both in terms of the sheer number of people incarcerated (over 2 million) and the conditions inside.

America must wrestle with questions about for-profit prisons, solitary confinement, prison understaffing, three strikes laws, felony murder, and racial bias in sentencing. But it is also worthwhile to take a step back and ask, not just how can we do prisons better, but what are we trying to do with prisons in the first place? For philosophers, this concerns our theory of punishment – the justification for the state inflicting harm, limiting freedoms, and revoking rights in response to acts it deems pernicious.

Imprisonment asserts the government’s right to exercise extreme and harmful power over people as long as certain conditions hold, especially being guilty of a crime. (The coercive power of the state is, in fact, employed well before incarceration, as the entire preceding legal process is also required.) This does not mean the situation cannot be justified. But given the scale of the harm, it behooves the government, and legal theorists, to have a good answer to the question: “Why are you forcibly detaining 2 million of your own people”?

Broadly speaking, there are two major goals we could have for our prison system. The first is the resolution of a societal problem, namely crime. (Although the more cynical among us might also point to poverty, unemployment, and homelessness as social problems that prisons help to “solve”.) The second is Justice – capital letter and all. The idea here is that imprisonment gives the guilty their due, balancing the scales of Lady Justice or signaling moral condemnation in some more metaphysical sense. These two major goals correspond with consequentialist and retributivist theories of punishment respectively (the author has previously discussed these in the context of environmental crimes).

People can of course hold onto each of these goals simultaneously, and our current system is not a pure reflection of either one, but a chimera of both theories, inherited historical practices, and political convenience. The challenge is that consequentialist and retributivist theories of punishment paint a very different picture of what prisons should be.

Perhaps most significantly is that the consequentialist is not necessarily committed to prisons and punishment at all. Classic consequentialist defenses of imprisonment are that it deters crimes, takes dangerous people off the street, and can help to reform criminals. These are all arguments for the way punishment can prevent crime. The consequentialist, however, can also argue that crime prevention is better served by increased non-punitive resources, such as improving education and investing in anti-poverty programs. Put differently, the consequentialist is interested in whether prison represents the best way to address crime in a particular context and, depending on the answer, adjusts social policy accordingly.

Consequentialists also need not be committed to making the prison experience miserable for the incarcerated. If evidence demonstrated that harsher environments or longer sentences served as a better deterrent or improved rehabilitation, this would provide the bones of a potential consequentialist argument – although current evidence does not support this. If instead the aim is simply to remove dangerous people from positions where they can cause harm, then there is no reason prison should involve additional suffering beyond captivity. In fact, consequentialist reasoning seems to dictate that we should minimize inmates’ suffering as much as possible while pursuing our greater societal ends.

For retributivism, by contrast, suffering is the point. Modern society has placed certain constraints on what is an acceptable punishment, but the core idea of retributivism is often still an eye for an eye – albeit understood in terms of years in prison. Retributivist theories also pay attention to individuals in a way that consequentialist approaches, which are focused on larger social goals, do not. In this way, retributivism can also be responsive to the desires of victims or their families in seeing justice done and scratching an emotional itch for resolution.

Not only do retributivism and consequentialist theories of punishment arrive at vastly different answers as to what imprisonment is for, but the core of each approach can represent a deep moral failing from the other perspective. To the retributivist, who wants to give the guilty their due, the social tinkering of the consequentialist neglects considerations of justice and desert altogether. To the consequentialist, the mysterious moral calculus of retributivism smacks of vindictiveness and Old Testament brutality.

As we have seen, retributivist and consequentialist approaches can sometimes be brought into alignment. For example, the consequentialist may like imprisonment because it isolates dangerous criminals, and the retributivist may like imprisonment because it’s miserable for the guilty party. However, this alignment is very dependent on the facts on the ground. As the evidence shifts, and the consequentialist begins to doubt the effectiveness of long sentences as grounds for rehabilitation or deterrence, so too does their image of what prison should be change. It is optimistic to assume that there is an account of what prison is for that conveniently fits the different goals of both consequentialist and retributivist approaches to punishment.

However, not all aspects of the prison system need to be beholden to the overarching theory of punishment. For example, the retributivist may agree that once the state has taken someone into custody via imprisonment, then they have a responsibility to ensure their safety from other prisoners. There are also features of the criminal justice system that attach to neither theory of punishment. For example, restorative justice (see a previous discussion in The Prindle Post) seeks to make whole both the victim and the perpetrator of crimes and can be paired with either consequentialist approaches or retributivist approaches.

Certainly there is a good deal of shared ground for broad aspects of criminal justice reform, including that cops should not kneel on people for 9½ minutes, that prisons should be adequately staffed, and that inmates should not be getting stabbed. And then there are more contentious questions about which crimes deserve prosecution, when minors should be charged as adults, and what kind of evidence warrants the death penalty. Answering the tough questions and deciding hard cases requires genuine, sustained reflection about what precisely we want our criminal justice system to do and what exactly we hope to accomplish. As it stands, current design remains at odds with stated purpose.

Is Murder Really Worse Than Polluting?

photograph of oil mixing with water

In a May 25th decision, Sackett v. Environmental Protections Agency, the U.S. Supreme Court placed further restrictions on the regulatory powers of the federal government. It has been longstanding practice that under the Clean Water Act the Environmental Protection Agency can regulate wetlands connected to navigable waters. But the recent 5-4 decision now requires “continuous surface connections” between regulatable wetlands and navigable waters, disregarding groundwater pathways.

This is obviously a victory for industries most likely to pollute waters – mining, construction, ranching, etc. – but more broadly it highlights the separation between two very different legal regimes. One governs the actions of corporations and white-collar through administrative agencies, regulations, and fines. The other involves the more familiar legal regime of cops, imprisonment, and even executions.

Criminal prosecution for harms such as pollution does occur, but is generally of a lesser order. The most severe penalty under the Clean Water Act is “knowing endangerment” – if, for example, a business owner ordered deadly chemical waste dumped in a river they knew was used as drinking water. The maximum penalty for knowing endangerment is 15 years in prison and a $250,000 fine.

But is polluting a river, with chemicals possessing the power to kill someone, a lesser crime than murder? (Even if one generally rebukes the American criminal justice system, the inconsistency can be an independent concern.) Should we, if we strive to be consistent in matters of justice, allow for harsher penalties?

One way to think about what severity of punishment would be justifiable is via theories of punishment. These attempt to justify the use of punishment in society. The two most common justifications deployed are consequentialist or retributivist.

Consequentialist theories of punishment – namely deterrence, incapacitation, and rehabilitation – justify punishment as a means of achieving specific social aims. Deterrence theories justify punishment on the basis of discouraging further crimes. Incapacitation theories argue punishment is justified to remove harmful elements from society. Rehabilitation theories explain punishment as a process to reform the criminal and reintegrate them in society. As the aim of consequentialist theories is to produce certain outcomes, the form of punishment depends on the most effective means for achieving the social goal.

Take deterrence as an example. It is sometimes assumed a harsher punishment is a stronger deterrent, but evidence indicates the primary deterrent is often the likelihood of being caught. Therefore even for very serious crimes a staunch deterrence theorist may not care how severe the punishment is, as long as it is rigorously enforced (which, incidentally, seems not to be the case with environmental crimes).

Retributivism is the approach to punishment where questions of proportionality between crimes and their punishments is most significant. It is also the dominant theory in the American legal system. The idea behind retributivism is not to achieve a specific social good or prevent harm, but ensure criminals get what they deserve. This has enormous psychological appeal, although philosophers have struggled to establish a clear basis for the intuition that crimes “deserve” punishment. What exactly does it mean for punishment to “fit” the crime?

Retributivism often holds that punishments should be fair or proportionate. Tax fraud, for example, probably shouldn’t merit death. But does this suggest there are retributivist grounds for claiming crimes like assault, mugging, or murder deserve a harsher punishment than knowingly disposing of toxic chemicals in a river used for drinking? It may depend on the exact details of the harm caused. We generally punish murder more severely than assault, and assault more seriously than shoplifting. On this analysis, large-scale crimes such as polluting a river should have extremely severe punishments. For more distant harms, say a cancer diagnosis 10 years after the disposal of chemical waste, it may be challenging to tie the crime to the particular harm. But this is a prosecutorial challenge and does not concern what punishment is in principle deserved.

What about violence? Violent crimes are often distinguished from non-violent crimes, with violent crimes meriting harsher sentencing. Is a crime like dumping toxic waste in a river less severe because it is less violent? One challenge to this is that violence is often simply a proxy for harm caused, where bodily harm is treated as more severe than, say, monetary loss. But environmental crimes can cause bodily harm. Presumably poisoning someone to death is not a lesser crime than stabbing someone to death, even if it is nonviolent.

A further question is whether harms “add up.”  Is stealing 100 dollars from 100,000 people worse than murdering one person? If harms compound in any way, then crimes with very widespread effect, such as environmental crimes, high-level political corruption, and financial crimes, could be among the most severe of all crimes even if their per-person impact is small.

As for arguments in favor of less severe sentencing for crimes such as pollution, perhaps the best defense concerns intent. When someone engages in financial shenanigans or dumps toxic waste in a river, their intent in most cases is not, presumably, to cause harm. By contrast, with a murder or assault the harm is often the central aim. The question that emerges is whether callous indifference to the harm caused is preferable to intentionally seeking to cause harm. Such judgments are hard to make, but even if preferable to an overt intent to harm, indifference to harming others is not a particularly exculpatory state of mind.

There is also a notable inconsistency here. In the United States there exists the practice of felony murder, where if someone dies during the course of a felony (e.g., a robbery), the defendant can also be charged with murder. For example, a lookout in a robbery was charged with murder after cops responding to the robbery accidentally killed someone. This practice is unsurprisingly controversial, but if it exists for crimes like robbery where there was no intent to kill, then it should logically exist for dangerous environmental crimes as well.

Overall, the retributive case for lesser punishment for environmental crimes is not compelling. If anything, on a retributive analysis, the punishments for large-scale crimes should be exceptionally severe. Beyond philosophical analysis, there are two other plausible explanations for asymmetries in crime and punishment.

First, our sense of justice thrives on the visceral. We are shocked at crimes of singular brutality and cruelty with identifiable (and sympathetic) victims. It is well established that we can quickly go numb to widescale harms. And yet, our society is dominated by large institutions.  And it is those ensconced in the upper echelons of these institutions who have the most capacity to cause harm, even if they are very far removed from the consequences. The obfuscation of climate change by fossil fuel companies is the biggest, although far from the only, example. We  psychologically struggle with more abstract crime with more diffuse consequences.

Second, is the unequal distribution of power in society. It is in the interest of the mugger to have minimal sentences for mugging and the coal executive to have minimal sentences for polluting. But there is a vast difference in their ability to shape the law.

Together, these two considerations often confound what should otherwise be a more straightforward question.

Consequence and Intention in Abortion Law

photograph of abortion protest

Unsafe abortions are the leading cause of preventable maternal deaths world-wide. At least some of the laws that restrict access to abortion also, unavoidably probably, make it less safe. If pursuing more restrictive abortion laws makes it less safe, but we believe abortion is immoral, we might wonder how to balance the health and safety of women who pursue abortions against the goal of reducing the number of abortions. Which raises the question, do restrictive abortion laws reduce the number of abortions?

They do not. The restrictiveness of abortion laws and policies has no overall effect on the number of abortions performed. Given this, even if we suppose that abortions are morally problematic, why make them illegal?

Since we know that these laws will result in more harm to women without preventing fetuses from being aborted, why do it?

We might be tempted to think that everything that is immoral should be illegal. But this is not plausible. One deep reason to deny that everything immoral should be illegal is that our society is founded on the idea that we should each be allowed to pursue our own good, as we understand it, in our own way. At most, the law represents a kind of ethical ground floor that must leave room for citizens’ reasonable disagreement over fundamental matters. What form should that take in the specific case of abortion? That’s a contentious matter. Certainly some would argue that the conflict in the abortion case pits the life of the fetus against the liberty of the mother, and so (as they say) we should choose life.

However, another reason not to criminalize all immoral behavior is that it’s just not possible. Could society function and not go broke, if we policed, arrested, tried, and punished everyone for any lie they told or every time they broke a promise? Perhaps, we should make only seriously immoral things illegal – and abortion, some would argue, is seriously immoral in a way most everyday lying is not. But why bother if making something illegal does not prevent people from doing these things – and at roughly the same rate?

Maybe, seriously immoral things should be illegal, even if that doesn’t prevent them. Perhaps we can justly punish people for their bad behavior, even if such punishment does not increase the overall good and instead makes everyone worse-off. It makes the punished worse-off, obviously, but since, again, it also costs time and social resources to police, arrest, try, and punish crimes, it makes the punishers worse off too. Some people, including most famously the philosopher Immanuel Kant, believe in what is called the “retributive theory of punishment.” We should punish people for doing bad things without regard to the consequences. Punishing people appropriately, and proportionally, for the wrongs they have done does, in fact, make them, and us, better off in some metaphysical sense, retributivists say, even if it doesn’t increase our welfare.

The trouble with taking this view in this context is that American anti-abortion activists have long dismissed as insulting the suggestion that they are mainly interested in punishing women. Instead, defenders of restrictive abortion laws often argue the point is not to punish women, but doctors and other abortion providers. Arguably, this is inconsistent. They both participated in the same crime, on this account, and both have to bear serious consequences. Given the impact on maternal health coupled with the ineffectiveness in curbing abortion’s frequency, it’s hard to see the point of criminalizing abortion as anything other than the punishment of women.

Perhaps, some things should be illegal because they are wrong and we need to send a message to society as a whole that we will not endorse such behavior. In other words, maybe making abortion illegal is a kind of virtue signaling or moral grandstanding. Marking something as wrong symbolically, however, can be done symbolically. We could just send a message.

But some might think that more than a message is needed. We might think that, at a minimum, we have a moral duty to avoid providing any sort of aid or assistance to others doing what we regard as wrong. In the United States, the Hyde Amendment has forbidden the government from financially supporting abortion-related care for over twenty years. Given its impact on maternal health, this might not be a good thing. But it does suggest that the debate over who pays for abortion-related healthcare is not the same as the debate concerning whether abortion should be outright illegal.

There are other crimes that are not reduced by prohibition, but were, or still are, illegal. Prohibition, for example, prohibited (or, really, limited) alcohol consumption. But that only lasted thirteen years, mostly because it increased violent crime more than it reduced alcohol consumption. Similarly, the U.S.’s “war on drugs” has been going on for fifty-years and seems to have produced unprecedented levels of mass incarceration, especially of people of color, without limiting drug consumption. In fact, the government is starting to give up on marijuana prohibition. So, rather than thinking that abortion, like alcohol, or other drugs should be illegal, this analogy might actually support less restrictive abortion law. We might think that the lesson of the analogy is not that we should criminalize abortion care, but that is time to call a truce in the war on drugs.

Why is it that restrictive abortion laws do not lower the abortion rate? It’s no doubt partly that, like alcohol and other drugs, the demand is high and doesn’t change. As economists say, the demand is inelastic. However, it’s also because societies with more restrictive abortion laws also typically have more laws restricting access to contraception. In theory, we could reduce the abortion rate by making access to contraception easier. Though anti-abortion activists have increasingly been arguing that many kinds of contraception are actually forms of abortion. Unfortunately, this is a problem we can’t take on here.

But you can read other great Prindle Post articles on the moral and legal issues surrounding abortion, and check out my article “’Persons’ in the Moral Sense.”

Justice and Retributivism in ‘Moon Knight’

photograph of 'Moon Knight' comic cover featuring an illustration of a superhero in a jump pose with a black suit and cape

This article contains spoilers for the Disney+ series Moon Knight.

In Disney’s Moon Knight, two Egyptian Gods advocate for two very different models of justice. Their avatars, of whom the titular character is one, are the humans tasked with doing the Gods’ bidding. Konshu is the beaked God of vengeance who manipulates his avatars to punish wrongdoers. His form of justice depends on the concept of desert — people should be punished for the choices that they make after, and only after, they have made them. Throughout the series, the main antagonist, Harrow (who was, himself, once Konshu’s avatar) attempts to release the banished alligator God Ammit. Ammit has the power to see into the future; she knows the bad actions that people will perform and instructs her avatars to punish these future wrongdoers preemptively, before anyone is harmed by the bad decisions.

As is so often the case with Marvel villains, the mission shared by Harrow and Ammit is complicated.

The struggle involved between the two Gods is not a battle between good and evil (neither of them fit cleanly into either of those categories). Instead, it is a conflict between competing ideologies. Ammit and Harrow want to bring about a better world. The best possible world, they argue, is a world in which the free will of humans is never allowed to actually culminate in the kinds of actions that cause pain and suffering. If people were prevented from committing murders, starting wars, and perpetrating hate, there would be no victims. The reasoning here is grounded in consequences; the kinds of experiences that people have in their lives are ultimately what matters. If we can minimize the kinds of really bad experiences that are caused by other people, we should.

Nevertheless, viewers are encouraged to think of Konshu’s vision of justice as superior; Mark and Steven spend six episodes trying to prevent Harrowing from reviving Ammit. The virtue of Konshu’s conception of justice is that it takes the value of the exercise of free will seriously. The concept of reward is inextricably linked to the concept of praise and the concept of blame is similarly linked to the concept of punishment. People are only deserving of praise and blame when they act freely; free will is a necessary condition for praise or blame to be apt. A person is only praiseworthy for an action if they freely choose to perform it, and the same is true with blame. Ammit’s form of justice doesn’t respect this connection, and the conclusion the viewer is invited to draw is that the God therefore misses something central about what it is that fundamentally justifies punishment.

The suggestion is that retributivism — the view that those who have chosen to do bad things should “get what they deserve” — is the theory of punishment that we should adopt in light of the extent to which it emphasizes the importance of free will.

But it isn’t that simple, in the MCU or in the real world. Later episodes of the series explore the theme of mitigating circumstances, and the viewer is left to wonder: are all circumstances mitigating? In episode 5, Marc and Steven travel to an afterlife and, at the same time, through their own memories. As viewers have likely suspected, Marc has dissociative identity disorder, and Steven is a personality he created to protect him from the abuse that he suffered at the hands of his mother. In childhood, Marc and his little brother Randall went to play in a cave together and rising waters resulted in Randall’s drowning. Marc’s mother never stops blaming him for the death and takes it out on him until the day that she dies. It is clear that Marc has carried a significant sense of guilt along with him all of his life. Steven assures him, “it wasn’t your fault, you were just a child!”

The actions that young Marc took might appear to be chosen freely; he went to the cave with his brother despite the fact that he knew doing so was dangerous. Yet it does seem that Steven is correct to suggest that the inexperience of youth undermines full moral responsibility. The same is true with at least some forms of mental illness. If the trauma of Marc’s past has fractured his psyche, is he really responsible for anything that he does, either as Marc or as Steven?

The kinds of factors that contribute to who a person becomes are largely outside of their control.

No one can choose their genetics, where they are born, who their parents are, the social conditions and norms that govern who it is deemed “acceptable” for them to be, whether they are raised in conditions of economic uncertainty, and so on.

Many factors of who we are end up being largely a matter, not of free will, but of luck. If this is the case, it is far from clear that, as viewers, we should be cheering for Konshu’s model of justice to win in the end. Anger and resentment are common sentiments in response to wrongdoing, but retributive attitudes about justice often create barriers to experiencing emotions that are even more important — forgiveness, compassion and empathy. Existence on the planet is not one giant battle between good and evil; explanations for behavior are considerably messier and more complicated.

Moon Knight’s story has only just begun, and the philosophical themes promise to be rich. With any luck, they’ll motivate us to think more critically about justice in the real world. Even if we could see into the future, there are good arguments against pursuing Ammit’s strategy — it seems unfair to punish someone to prevent them from doing something wrong (the metaphysics of time are kind of sketchy there, too). Konshu’s strategy — a heavily retributivist strategy — closely resembles the one we actually follow in the United States; we incarcerate more people than any country in the world. Our commitment to giving wrongdoers “what they deserve” may stand in the way of more nuanced moral thought.

Acquitted but Not Forgotten: On the Ethics of Acquitted Conduct Sentencing

black and white photograph of shadow on sidewalk

On March 28th, 2022, the House of Congress was addressed by Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The topic of the address was the legality of a practice called Acquitted Conduct Sentencing. Acquitted Conduct Sentencing is the practice of a judge increasing the penalty for a crime based on facts about the defendant’s past — specifically, facts about crimes the defendant was charged with, but later acquitted of. Perhaps surprisingly, such a practice is not only legal, but relatively common. For example, in 2019 Erick Osby of Virginia was charged with seven counts of criminal activity related to the possession of illegal narcotics and firearms. He was acquitted of all but two of the charges, which should have resulted in a prison sentence of between 24-30 months. The district court trying him, however, estimated a range of 87-108 months due to the five other charges of which he was acquitted. Osby ended up receiving an 84-month (7-year) prison sentence.

In his remarks, Congressman Cohen, along with the co-author of his bill, Kelly Armstrong (Congressional Representative for North Dakota at large), presented arguments to Congress for making Acquitted Conduct Sentencing an illegal practice. The reasoning is fairly straight-forward: if someone is charged with a crime but later acquitted, that acquittal seems to say that they cannot legally be punished for that particular charge. But when sentences are expanded — even, in some cases, tripled — fines are raised, or obligatory service is extended, due to the charges the defendant has been acquitted of, it certainly seems as though the acquittal was meaningless. Cohen’s argument, then, is clear: if we acquit someone of a charge, they should be fully acquitted, meaning those charges should not have any bearing on the sentence handed down to the defendant.

Still, the question of acquitted conduct sentencing is not quite as straightforward as that. Juries and judges need to make their decisions on a host of factors, some of which have to do with facts known about the defendant’s character as well as predictions about how likely they may be to reoffend. These are not easy decisions to make, and it is further complicated by the ambiguity of what counts as legally-admissible evidence. Acquitting someone of a charge does not entail that no facts relevant to the original charge can be used in the trial. In many cases, it is difficult to say how such evidence should be treated. For example, a charge that was acquitted because of police mishandling evidence may be discussed during witness testimony. That testimony, and facts about the defendant’s character and behavior, seems (at least in some cases) hard to ignore when considering fair and effective sentencing for other charges. Acquittal, after all, does not mean that the defendant is not guilty of the crime, only that they cannot be legally charged for it. This could be for a variety of reasons.

Of course, we know that there are many instances of people being charged with a crime that they are innocent of. Mistaken charges happen all the time. Judges and juries may be privy to the original charge, and the later acquittal, but may not know the reason for the acquittal. Acquitted conduct sentencing allows defendants in this position to suffer the consequences of someone else’s error. Because the people making these legal decisions often have limited, or at least imperfect, access to all of the relevant information, allowing for acquitted conduct sentencing is guaranteed to allow cases like this to (in some cases, massively) increase the sentences for these defendants.

So, how should we think about the ethics of acquitted conduct sentencing? Purely consequentialist reasoning may lead us to conclude that we should look at the statistics: what percentage of acquittals are due to innocence, and what percentage are due to bureaucratic missteps? Perhaps the answer to this question will tell us whether allowing or prohibiting acquitted conduct sentencing would be expected to generally maximize good outcomes. This of course would be based on the presumption that, if someone is genuinely guilty of the crime for which they are acquitted, then adjusting their sentence in light of any relevant facts of the acquitted charge would be best for preventing future harm. But this assumption may, of course, itself be mistaken.

Instead, maybe a just outcome depends on more factors than simply maximizing happiness or minimizing harm. The idea of fairness as a desirable outcome of justice, for instance, is a popular one. We might think about the issue of acquitted conduct sentencing as a question of where the locus of justice lies: is a procedure of justice fair in virtue of the procedure itself, or is it fair just in case the outcomes of the procedure are generally fair? John Rawls, one of the most influential political philosophers of the modern era, argued that what he called perfect procedural justice has two characteristics: (1) criteria for what constitutes a just outcome of the particular procedure, and (2) the particular procedure guarantees that a perfect outcome will be achieved. Of course, such perfection is often unattainable in real life, and we might think that the best we can aim for is imperfect procedural justice: where criteria (1) is met, but the procedure cannot guarantee a perfect outcome. Can our current sentencing procedure meet Rawls’ first characteristic? Does it give us an idea of what counts as a just outcome of sentencing? The answer is unclear.

Further, we might question whether outcomes are relevant at all for justice. As a pluralistic society, we might expect there to be wildly-differing views about what counts as a fair outcome. But what counts as an impartial (if not fair) procedure is likely less controversial. For example, when healthcare resources are very scarce, some institutions use random-lottery (or weighted-lottery) decision procedures to determine who gets the resources and who does not. Even if the outcome seems “unfair” (because not everybody who needs the resource will receive it) it is hard to contest that everyone had a fair shot at the prize. Not everyone agrees that lotteries are just procedures, but they at least appear to be impartial. Perhaps this is enough to secure procedural justice? The view that the procedure alone, and not the outcome, determines the fairness of a procedural process, is what Rawls calls pure procedural justice.

Is the procedure of acquitted conduct sentencing fair? Perhaps an easier question: is it impartial? Likely not. After all, implicit (or explicit) bias can easily result in someone being charged for a crime they did not commit. Those who are members of marginalized groups, then, have a much higher risk of having their sentences expanded due to crimes they did not commit. The procedure is far from impartial, and so the likelihood that it could be a part of a just procedural process appears to be low. While we certainly want judges to have as much relevant information on a case as possible when handing down a sentence, perhaps we can agree with Congressman Cohen that acquitted conduct sentencing is not the way to accomplish this goal.

Considered Position: Thinking Through Sanctions – Do Sanctions Work?

image of Russian banknotes

This piece begins a Considered Position series investigating the purpose and permissibility of economic sanctions.

In this series of posts, I want to investigate some of the ethical questions surrounding the use of sanctions. Each post will be dedicated to one important ethical question.

Part 1: Do sanctions work to change behavior? 

Part 2: Do sanctions unethically target civilians?

Part 3: What obligations do we as individuals have with regard to sanctions?

In this first post I want to address a particularly fundamental question. Do sanctions even work?

Why It Matters if Sanctions Work

If sanctions are ineffective, then there are very strong reasons to reject their use. That is because sanctions cause massive harm to innocent civilians. We can already see this happening in Russia.

In the Spring 2010, the high school debate community debated whether or not it is permissible to use economic sanctions to achieve foreign policy objectives. I remember that at the time, it was widely accepted that sanctions directed against Iraq had killed over half a million children. And while we now know that the number was almost entirely fabricated by the Iraqi government, the very fact it was widely accepted by the United Nations shows just how plausible it is that sanctions can cause incredible amounts of harm. Even so-called “smart sanctions” — such as the choice to freeze the banking assets of a nation’s leaders — can sometimes be circumvented with harms passed onto civilians.

Because sanctions are accompanied by high costs to civilians, it is therefore important that sanctions work. Otherwise, we cannot possibly justify the harm they cause to innocent people.

How Sanctions Don’t Work

This raises a problem, however. Because at first blush it looks like sanctions are generally ineffective. If you look at the various times in the past that the United States and United Nations have imposed sanctions, they do not seem to really change a nation’s behavior.

Indeed, some studies suggest that sanctions are actually counterproductive — resulting in an increase in repression and human rights abuses.

Why would this be? There seem to be a couple of mechanisms.

First, economic sanctions often lead the populous of a nation to think they are being victimized by the international community. This can often produce a ‘rally around the flag’ effect where the populace comes to support national leaders more strongly in response to an external threat.

Second, sanctions decrease economic and information exchange between a nation and the wider community. This, at least historically, meant that sanctions made it easier for a government to control the information available to a citizenry (though this is changing in the world of modern computers).

Third, sanctions often cause the sanctioned government to crack down and increase control over the populace (as we are currently seeing in Russia), and this can result in the prosecution of opposition parties or free media. Thus solidifying the government’s control.

This forms the foundation for the standard objection to sanctions. Imposing sanctions does not actually work to change behavior. So, given the harms they cause, we should not use them.

However, there are good reasons to doubt this argument. The problem is that these studies find that sanctions are ineffective because they misunderstand how sanctions work in the first place.

I tend to think that sanctions are actually fairly effective. So, it is worth looking at the two mechanisms by which they actually seem to change behavior.

The Primary Mechanism: Threats

Most people critical of sanctions assume that sanctions work by changing behavior once the sanction is imposed. However, it is actually the preliminary threat of sanctions that changes behavior. Elizabeth Rogers makes this point in a discussion paper for the Belfer Center:

The literature focuses on the ability of imposed sanctions to compel the target to change its behavior, but does not systematically study whether the threat of sanctions can deter the target from taking a certain action. Hence the literature asks if sanctions can achieve compliance (which is difficult) without asking if they can achieve deterrence (which is easier). Deterring an untaken action is easier than compelling a policy reversal because leaders do not face the higher political costs that accompany reversing course.

Sanctions can deter in two ways. Target states can be threatened with sanctions directly, or sanctions can deter indirectly, by example. States seeing the economic damage sustained by sanctioned states may decide to avoid actions that will make them the targets of similar sanctions. Press accounts imply that this logic was part of the rationale for sanctioning Haiti in 1991 and Niger in 1996 after military coups in those states.

If sanctions work via a credible threat then you should not expect sanctions to change behavior once they are imposed.  Once you issue a threat of sanctions, then the other nation decides if it is still worth performing the triggering action. Normally, the sanction will tip the balance against the action. But where it doesn’t, the other nation has already factored in the chance of sanctions, and so is unlikely to change just because the sanction is actually imposed.

That does not mean that sanctions don’t work. It just means when you impose sanctions, then they have already failed. As such, if you try to test the efficacy of sanctions by looking at where imposed sanctions change behavior, you are basically trying to assess if sanctions work by only evaluating sanctions that failed.

So is the threat of sanctions effective? It turns out this is a really difficult empirical question to study. Nevertheless, we can get some indirect evidence that these threats are effective. For instance, it does seem as though one reason that Russia was willing to invade Ukraine now is because there was a fairly weak international response to the original invasion of Crimea in 2014. This would suggest that it was partly because Russia thought that serious threats were uncredible that they were willing to begin a larger invasion.

At this point you might wonder. If it is the threat of sanctions that does all the work, why actually ever impose sanctions? After all, imposing them won’t actually do much once the threat has failed.

The problem, however, is that to have a credible threat in the future you need to be willing to follow through with it even when deterrence has failed. For example, if we want China to think that there is a credible threat of sanctions should they invade Taiwan, then we need to sanction Russia even if we don’t expect it to change Russia’s actions (or even if we think it will increase Russian aggression).

The Secondary Mechanism: Norm Internalization

Sanctions also seem to work by reinforcing clearer international norms.

There is a big difference between a real social norm, and merely something that everyone in society pays lip service to. For instance, most highways have a speed limit of 55 miles per hour; but that is not the norm for how fast we drive. Most people drive 5 to 10 miles above the ‘official’ speed limit.

Why? At least in part because no one ever enforces the actual speed limit. The norm tends to get solidified where the punishment kicks in, not where a piece of paper says the norm should be. This also occurs with social norms that are not imposed by the government. Things that our social norms consider rude, are pretty much those things that might get other people to respond to you negatively.

Sanctions, in the broad sense, help to define norms.

Not only that, but when other nations impose sanctions because of the violation of some value, it tends to deepen that value in the sanctioning nations. So, nations that come together to sanction Russia, are likely to have a renewed commitment to certain international norms (if for no other reason than to not look like hypocrites).

So, one way that sanctions seem to work is providing a non-military form of punishment by which international norms are solidified.

This would also explain why sanctions are effective, even if they don’t tend to change behavior after they are imposed. After all, the nations who violate the sanctions tend to also be the ones that don’t care about the norms in the first place. That does not mean the sanctions don’t have an important effect on most other countries, however.

Juvenile Justice: Charging Minors as Adults

close-up photograph of youth in handcuffs

Children should be treated differently from adults by the criminal justice system. They should be treated more leniently, and this includes how they are treated by the police, judged by the courts, and – most obviously – the punishments they are given.

I take it that most people believe this, at least to some extent. Nobody thinks that a five-year-old who steals a Mars bar deserves the same punishment as an adult. But when a child commits a heinous crime, we are often far too quick to abandon our commitment to treating kids fairly.

Just last week, another school shooting saw four children die in Michigan. The shooter, a fifteen-year-old boy, has been charged as an adult. Even though rates of children being charged as adults are falling, estimates say that 50,000 children a year are still charged as adults. Recently, in upstate New York, Eric Smith was released after 27 years in prison. Smith was charged in the juvenile courts, yet while headlines mentioned that he was a child killer, they failed to mention that he, too, was a child. If kids should be treated more leniently, then the reactions in these cases by the prosecutor and press are flawed.

One might think that sometimes crimes are so heinous that kids deserve to be tried as adults. Perhaps some crimes are so egregious that they deserve the strictest possible punishment, and perhaps the state needs to communicate that some crimes are hideous, or perhaps some crimes suggest someone is beyond rehabilitation. But I also suspect that, often, calls to punish kids as adults are based on a mistake: that because the act is heinous, it deserves the severest punishment. And I think we should push back against this. Let me try to explain, by exploring why we should be lenient to kids in the first place.

The obvious starting point is that the criminal justice system is part of the state, and the state treats kids differently from adults all the time. Thirteen-year-olds can’t drive, seventeen-year-olds can’t smoke, twenty-year-olds can’t drink (though, absurdly, they can give their lives for their country). And why are kids treated differently by the state in all these other domains? The obvious answer is: kids are less mature; they can’t be trusted to make informed decisions about the risks involved in smoking, drinking, and driving. They aren’t quite as able to see why what they are doing is wrong and they possess less self-control.

If kids are less mature – as they so often are – then shouldn’t they be treated more leniently for their crimes? If we think that, roughly, how much you should be blamed should match how responsible you were for the bad thing that you did, and if we think that kids are less mature and thus less responsible, the answer seems to be obvious: yes, of course kids should be treated more leniently.

We can nuance this argument further. One point worth discussing is that our brains do not mature until we are 25, so this might even suggest we should be lenient to people who are traditionally classed as adults. But we might want to allow for a cut-off, here: we might think that, although they are not fully mature, 23-year-olds have a suitable enough knowledge to be treated like adults. When is a kid mature enough to be punished as an adult? That’s a point for debate, and it might also be true that some kids should be punished more like adults than like kids. But I take it for granted here that if we have a distinction between punishing as a juvenile and punishing as an adult, we can roughly sort offenders into one of two camps.

It’s also worth noting that this argument does not – as is briefly discussed here – claim that kids do not know right from wrong. That would be absurd: kids clearly do sometimes know they are doing wrong. Yet kids might know something is wrong but not fully appreciate the wrongness, they might not quite grasp why it is wrong. And kids might know something is wrong but be less able to resist it than adults.

But what about if a kid is as mature as an adult? Gideon Yaffe thinks that we should start from the supposition that kids should be treated more leniently, yet the above argument fails since it allows for some kids not to be treated more leniently. For instance, if a kid is morally mature, according to this argument they should be punished just the same. (Yaffe’s answer is interesting: kids can’t vote, and he thinks criminal responsibility tracks how much say we have over the law. But that is too much to go into here.)

I don’t think I buy Yaffe’s argument. It seems plausible to me that if a particular kid is fully mature, then perhaps they should be punished like an adult. Though there is an argument that it might be too hard to discern if a kid is mature enough, and we should just always treat kids as though they are not mature enough for full criminal punishment. (And it is also worth noting that such a consideration does not apply to the cases we are discussing. The Michigan shooter was plausibly suffering from mental disorders, as was Eric Smith – so his lawyer argued. So charging either of those as adults seems flawed, especially when mental disorders also tend to require more lenient punishments.)

Yet even if there is an exception so that mature kids are punished like adults, there is no principled exception to say that kids who do awful things should be punished like adults.

But, the retort goes, what they did was so heinous they must be punished as strongly as possible. This rests on a mistake. Our argument does not turn around what was done but who did it. In one of the greatest pieces of modern moral philosophy, P.F. Strawson made this point. If you tread on my toe, the pain is the same, but the level of blame I give you will differ depending on whether you accidentally trod on me or whether you did it maliciously.

We can grant that a murder is heinous, whilst still holding that children who perpetrate these acts are owed separate consideration. The thing they did was heinous, but their doing it was less heinous than if an adult had done it. To charge kids as adults requires more than just pointing to the fact that what they have done is awful. It requires showing that they deserve to be punished like adults, despite the prevailing assumption that they are less mature, and so a lesser punishment is appropriate.

Re-Examining Scared Straight Programs

photograph of teen boy confined behind chain link fence

In the United States, summer camps for kids across the nation make up a $4 billion dollar industry. However, not all summer camps are designed to be fun. “Scared Straight” programs are designed to deter at-risk youth by forcing them into an exaggeratedly violent and threatening prison setting for 1-3 days. The purpose of these programs is to encourage children to change their actions which could eventually lead to adult conviction. Parents voluntarily pay for their children to be sent to these programs, a decision which some child psychologists have labeled as “child abuse.”

Are prison camps for kids ethical? Is it right to use fear to elicit a change in behavior? Are there certain disciplinary tactics which should be off-limits to parents?

Public awareness of these camps first began with the documentary “Scared Straight!” which aired in 1978, and won an Emmy and Academy Award for its depiction of children sent to prison camps. Awareness increased due to the A&E TV series “Beyond Scared Straight” which documented the experiences of children in prison camp programs for 9 seasons. Most recently, Vice ran a mini-documentary feature in 2018, which contained highly disturbing footage. One of the most documented “scared straight” prison camps for kids in the U.S. is “Project STORM,” a camp based in North Carolina, whose existence is predicated on the belief that “punishment and fear (i.e. getting tough on crime), is one approach to reducing juvenile crime.” Participation in the program costs between $75-100 and lasts 12 hours, including an overnight stay.

While many would agree there is some utility in allowing parents agency over personal parenting decisions, where should the line between children’s rights and parental discipline lie? One place to turn for answers might lie in the Convention on the Rights of the Child, an international agreement with 140 signatory countries, including the U.S. who has signed but failed to ratify. The Convention recognizes 40 rights that children are entitled to, including protection from abuse and violence as well as the prioritization of their best interests by parents and governments. Though the Convention does not define abuse and violence, child abuse is defined by the U.S. Department of Health and Human Services as ”any recent act…on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse, or exploitation.” Studies have shown that certain forms of punishment, such as corporal punishment, negatively impact the emotional and physical well-being of children. With this in mind, it is clear that any program which uses physical and emotional violence, or the threat of violence, against children would be widely recognized as immoral in violating the rights of children. It is also hard to justify “scared straight” programs even from a consequentialist perspective. The American Psychological Association maintains that physical discipline is ineffective as well as harmful. In fact, Scared Straight programs have been found to actually increase the likelihood of criminal conviction for children who partake in them.

However, even if such camps appear to violate the rights of children, do the rights of parents to choose their own disciplinary methods present an irresolvable tension? Legally, parents have the right to exercise “reasonable force or reasonable punishments on their child to control, train, and educate.” This right is often referred to as the “parental discipline privilege.” While many states recognize this right as a defense during allegations of child abuse, the legality of an action does not necessarily make it moral. However, there is some utility in generally allowing parental autonomy in raising children. After all, parents often know their children better than anyone else, and therefore are the most qualified to make disciplinary decisions which will be simultaneously effective and appropriate to the child’s temperament. Additionally, giving parents more autonomy may lead to better outcomes for children, as some advocates claim. Parents who feel criticized or judged may also be more likely to react harshly to their child’s misbehavior due to embarrassment.

It’s also worth examining whether the moral culpability of parents rides partially on their motivation. The decision to send one’s child into a Scared Straight program might be the best decision a parent believes they can make, or they might see it as a last resort to teach their children to stay out of trouble. Parents who turn to these programs may feel they do not have the time, money, or energy to invest in helping their children make better decisions, so they rely on fear as a remedy. While generally ineffective and arguably abusive, parents who believe the promises of Scared Straight programs may ultimately be making a decision which they believe is ultimately positive for the child. For example, a single-parent trying to make ends meet, whose child has been expelled might believe that the program is the most manageable option for helping their child choose a different path. While parents who send their children to such programs for minor problems or who have historically abused their child, might be less excusable in their decision. Whether or not one believes that even well-intentioned parents should know better is likely the determining factor in whether or not one believes parents are fully culpable for the immoral and inhumane treatment of children in these programs.

Turning to Scared Straight programs themselves, is using fear as a method to elicit “positive” behavioral changes okay? If the programs were indeed highly effective, one might argue that the cost of such deterrence is worth the benefits. Incarceration has severely negative impacts on an individual, and some might believe that one traumatic weekend at a scared straight program is well-worth it. On the other hand, perhaps it is never okay to use such methods, as they are irreconcilably wrong in themselves. The use of fear to elicit or deter certain behaviors is highly debated within the psychological and sociological fields. “Fear appeal,” as it is often referred to, is “a persuasive message that attempts to arouse fear in order to divert behavior through the threat of impending danger or harm. Though the concept of fear appeal is commonly used in public health and marketing-based settings, this strategy is also clearly present in Scared Straight programs which use extreme, and arguably exaggerated circumstances of prison, to encourage kids to do everything they can to avoid criminal prosecution. This overload of fear might be the reason for its ineffectiveness as studies have found that extreme fear can effectively shut down the subject and may even lead to risk denial for those especially susceptible to the threat. If one believes that effective use of fear which leads to positive outcomes is justified, then the moral problem with Scared Straight programs is their ineffectiveness. On the other hand, if one believes that no matter the outcomes, the violent and threatening methods employed by these programs are wrong in itself, the most ethical answer is to simply abolish the programs altogether.

Parents are not only the main legal guardians of their children, but also the protector of their rights. Sometimes, parents make decisions which they believe will benefit the child, but lead to more harm than good. It is clear that Scared Straight programs which mentally and physically torment children have severely negative impacts on children and are highly ineffective. Until they are fundamentally reformed or ultimately abolished, they will likely continue to motivate shocking documentaries and critical exposes.

Under Discussion: Free Speech, Cancel Culture, and Compassion

photograph of yellow push pin in the center of blue push pins with their spike turned to the yellow one

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: The Harper’s Letter.

In July, 2020, Harper’s Magazine published a letter signed by 153 prominent authors and thinkers. Signatories included figures such as Noam Chomsky, Gloria Steinem, and J.K. Rowling. Their main contention was that an “illiberal left” has emerged in recent political discourse — a left that allows no room for divergent points of view and that deals with “wrongdoers” swiftly and mercilessly.

Though the letter is about responses to speech, it does not express fear that first amendment violations are occurring; it does not suggest that the government is censoring speech on the basis of content. Instead, the signatories are concerned about the current cultural climate. They are concerned about cancel culture and the chilling effect it can have on the free exchange of ideas. Constitutions provide protections against tyrannical governments, and historically governments have been the primary coercive force looming over the lives of private citizens. In the new age in which we live, the internet — and the anonymous people on it — pose a comparable threat to personal well-being.

The main argument in support of cancel culture, at least when it comes to speech, is that some ideas are so wrong and so harmful that they should not be expressed. If they are expressed, the consequences should be so severe that the community as a whole learns that those views will not be tolerated. Racist, sexist, and homophobic (to name just a few) messages ought never to be advanced on any platform. It isn’t simply that these messages are inherently bad, they also cause real harm. The argument is that our response to speech should match in severity the potential harm caused by that speech.

The idea that the value of free speech can be outweighed by other important values is not new. The approach has been codified into law on multiple occasions. In one such case, the circumstances were morbidly similar in some respects to those in which we now find ourselves — Nero fiddled while Rome burned. In 1918, the Spanish Flu raged. Its existence and severity were undermined and covered up by governments, and the global travel initiated by World War I ensured rapid spread of the virus. Amidst this turmoil, Congress passed The Sedition Act which outlawed “disloyal, profane, scurrilous, or abusive language” against the United States government. Those that violated the act could spend up to twenty years in prison. The rationale for passing the legislation concerned the potential harms and unrest that anti-government sentiment could cause during wartime.

The highest courts in the country repeatedly upheld the act, making use of what is now referred to as the “Bad Tendency Test.” One noteworthy use of the Bad Tendency Test involved a man who wrote a book that contained arguments against war. In the book, the man argued, “that patriotism is identical with murder and the spirit of the devil, that war is a crime, and…that it was yet to be proved whether Germany had any intention or desire of attacking the United States.” At the time, this kind of argument was very unpopular — patriotism and loyalty to one’s country were viewed as important social virtues, and those who did not exhibit said virtues were viewed as pariahs. The courts agreed, and held that the issue at stake was “whether the natural and probable tendency and effect of the words quoted therefrom are such as are calculated to produce the result condemned by the statute.” In other words, the mere potential harms caused by certain kinds of speech were viewed as being so significant that it justified punishment for speech that might have a tendency to bring about those harms. The result was that the man was “cancelled” for being a pacifist. Of course, this example involves state action, whereas cancel culture involves the behavior of private actors. Nevertheless, our history can and should inform our strategies for private punishment of speech. We should never lose sight of the fact that beliefs that we now view as admirable were once viewed with disdain and even hatred by earlier generations. Hubris is dangerous; we are unlikely to have, at this precise moment, arrived at all the right answers regarding both facts and values. Freedom of expression allows us to explore what we have right and what we have wrong.

There are reasons for protecting freedom of expression that go beyond protecting ourselves from tyrannical governments. The ability to express oneself freely is important for living a meaningful, flourishing human life. We are nourished by the words of others and responding to others is part of how we create ourselves. When we nurture our children into the people they’ll become, we provide them with many outlets for expression but also with plenty of room to get things wrong. Building a worldview is a messy process and none of us get through it without making significant mistakes. Respect for the dignity and humanity of another person requires compassion in the face of mistakes that they will inevitably make. One of the most compassionate ways to rectify mistakes is through the patient exchange of ideas, which involves encouraging freedom of expression rather than stifling it. What’s more, antagonistic climates are likely to deter people from developing as thinkers. We want citizens to do more than simply take life as it comes, we want them to take an active interest in developing coherent, consistent worldviews, ideally strongly informed by evidence. The threat of being torn apart if something goes wrong may be enough to make plenty of people give up on the enterprise altogether.

At least some objections to cancel culture have to do with its underlying assumptions. “Canceling” someone for their speech is an act of retribution, which is motivated by the idea that individuals who express problematic views should “get what they deserve.” There are both broad and narrow reasons to be concerned about this. The broad concern is that there are compelling reasons to be skeptical of retributivism as a theory of punishment in the first place. The idea that retribution is the path to justice is a popular one — if you pluck out my eye, I get to pluck out yours. This view portrays justice as something to be exacted rather than as something to be achieved; it maintains that when a person exacts retribution, they somehow get back what the bad actor took. In her book Anger and Forgiveness: Resentment, Generosity Justice, Martha Nussbaum refers to this sentiment as the “payback wish.” People frequently believe that when they are harmed, severe punishment for the wrongdoer will somehow right the wrong. This simply isn’t so. When someone expresses a view with which we disagree, causing that person significant harm in response will not make their speech disappear. If a person feels harmed by another person’s speech, “canceling” the person who spoke will not undo the harm.

The narrow concern has to do with the severity of some of the retributive actions that take place in the climate of cancel culture. Even if one is inclined to believe that proportional retribution is justice, often the consequences for unpopular speech are not proportional. For example, recently, UNC Wilmington professor Mark Adams made national news for making a series of reprehensible comments on social media. He was encouraged to retire from his position, and he was compensated handsomely for doing so. On July 24th, 2020, he was found in his home, dead from a bullet wound. The official cause of his death has not yet been released, but many suspect suicide — it is plausible to speculate that the backlash that resulted from his callous behavior created for him a world in which he no longer could stand to live. It’s one thing to say that there should be consequences for harmful speech — there should. If an author engages in problematic speech, it is reasonable to refrain from buying that author’s books. Making that decision isn’t an instance of “canceling” anyone. The person who did something wrong isn’t off the hook, they should reflect on their actions and take responsibility for them. That said, the set of reasonable consequences for harmful speech doesn’t include bullying someone until they commit suicide.

All of this is not to say that the careful and conscientious exchange of ideas is some kind of magic elixir that can solve all of the world’s problems. Realistically, in most cases, if a person is a racist, misogynist, or conspiracy theorist, trying to talk them out of any of those positions will be a significant waste of time. Belief in the value of free speech shouldn’t itself turn into a form of dogma. We need to look at our social problems straight in the face in order to find solutions. We need to be realistic, also, about when people are engaging in discourse in good faith and when they aren’t. We only make progress when all participants enter the discussion with some epistemic humility. That said, exhibiting epistemic humility need not, and in many cases should not, involve commitment to the idea that all ideas are equally reasonable, evidence-based, or likely to be correct.

What, then, do we do when civil discourse isn’t successful at changing minds and hearts? The cases that we care the most about are cases in which there is a lot on the line; they are cases in which people stand to suffer a great deal as a result of the speech of powerful others. Is cancelling people the only viable alternative? In his “Letter from a Birmingham Jail”, Martin Luther King Jr. explained why the demonstrations for which he was arrested were necessary. He directed his remarks at members of Alabama’s religious community who had advised him to wait or to express his demands in different ways. He pointed out that the political leaders “consistently refused to engage in good faith negotiation.” He concluded that those fighting injustice “had no alternative except that of preparing for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and national community.” King’s critical insight was to turn to other peaceful and meaningful forms of persuasion when patient dialogue led nowhere. One of the most powerful moves in his playbook was to appeal to the common humanity and dignity of others — even racists.

Creative and productive responses to ugly speech are possible. Cancel culture, at least when it comes to speech, is often fueled by rage and mob mentality — hardly the most noble human motivators. What’s more, if the goal is to change the mind of the bad actor, insisting that they should nevermore be listened to or taken seriously as a rational expressive human being is unlikely to get the job done. If one authentically commits oneself to the task of elevating discussion regarding important social issues and of getting rid of antiquated and harmful attitudes, one will employ strategies that actually work. Anything else looks like an attempt to satisfy the payback wish.

To Requite, To Restore, or To Deter: Punishing Amy Cooper

photograph of empty courtroom from Judge's perspective with gavel in foreground

On May 25, Amy Cooper called the cops on Christian Cooper after he asked her to leash her dog in Central Park. Video of their interaction sparked further debate about racial bias and police brutality, and also led to the renewed pressure to pass a NY State bill banning race-based 911 calls. Amy Cooper was fired from her job, had her dog temporarily confiscated, personal history exposed, and became a household name as one of the many faces representing the white “Karen” complex. She released a subsequent apology in The New York Times, but also immediately hired a defense attorney when she was officially charged with filing a false police report. However, on July 14, Christian Cooper announced he would not be cooperating with Manhattan District Attorney’s Office. In an opinion piece in The Washington Post, Cooper concluded that he must “err on the side of compassion and choose not to be involved in this prosecution.” His announcement shocked many and raises further questions about the purpose of punishment and the criminal justice system at large.

Why should we punish “bad actors?” Is the purpose of criminal law to deter crime, to punish perpetrators, or something else? And should prosecutors listen to victims when deciding whether to pursue charges?

Within the theories law and punishment, there are two major answers to the question of the purpose of criminal law: retribution and deterrence. The retributive approach to punishment and criminal justice is the belief that people who do the crime, should serve time. Under retributive theory, perpetrators should be punished regardless of the future consequences. Retributivists believe that the goal of punishment is ultimately to give people what they deserve. Retributivism therefore is inherently backward looking in its justification of punishment. The utilitarian approach to punishment, however, purports that the purpose of punishment is to deter future crime, both by the perpetrator and potential future bad actors. The goal of deterrence-based punishment is positive outcomes for society as a whole, and it is inherently forward-looking in its justification and goals. Both of these approaches to punishment can be used to answer whether or not Amy Cooper should be prosecuted.

In his explanation, Christian Cooper concludes that neither the retributive nor the utilitarian approach to punishment logically justifies Amy Cooper’s prosecution. In terms of retribution, Christian believes that Cooper has already gotten what she deserves. He explains that he believes “in punishments that are commensurate with the wrongdoing.” Cooper sees Amy losing her job and reputation as sufficient punishment for her crime, and even suggests she has little more to lose. He also argues there is little to be gained by punishing Amy Cooper further since the issue of racial bias against black and brown folks is a “long-standing, deep-seated racial bias” which “permeates the United States” and cannot be solved through one symbolic prosecution. He believes that charging Amy Cooper not only does little to solve the racial bias but may in fact cause a different problem because it “lets white people off the hook” from more deeply examining the ways in which they engage with and perpetuate racism. As Cooper explains, “They can push for her prosecution and pat themselves on the back for having done something about racism, when they’ve actually done nothing.” Cooper also points out that the social consequences of her actions might serve as the ultimate deterrence to many. He contends that, “if her current setbacks aren’t deterrent enough to others seeking to weaponize race, it’s unlikely the threat of legal action would change that.” Prosecution is no guarantee of securing positive consequences; it will not deter others who fail to see themselves as holding racial bias. In fact, Cooper argues, there is the potential for her prosecution to backfire and contribute to the continued apathy and unprobed racial bias of white people.

While Christian Cooper believes prosecuting Amy Cooper isn’t justified on retributive or consequentialist grounds, his sister Melody Cooper has a different perspective. In a recent tweet she explains that she believes that the potential for deterrence is simply too beneficial to ignore. Melody agrees with her brother’s argument that policing must change, she also believes that because “People are getting hurt and killed in the meantime” that “if there’s a chance to send a message to other white women they can’t and shouldn’t put black people at risk in this way, it should be done.” To Melody, and those who agree with her, the potential deterrence generated by prosecuting Amy Cooper outweighs all else. She references the very real consequences of interactions between Black people and the police, and the phone calls that precede them. Melody clearly favors the traditional utilitarian approach to punishment in which deterrence and positive outcomes are the highest goal of the criminal justice system.

While Melody and Christian clearly disagree on Amy’s prosecution, another question still remains: should the prosecuting attorney take Christian Cooper’s perspective into account when deciding whether to pursue charges? Neither retributive nor utilitarian approaches to justice necessitate acknowledging the victim’s perspective in determining punishment. However, there is another theory of criminal justice which would center Christian’s perspective and cooperation as the victim of a crime: restorative justice. This approach aims neither to produce the best outcomes nor to give perpetrators what they deserve, but rather intends to repair the harm caused by crime. In a restorative justice system, Christian Cooper’s desire for Amy Cooper not to be sentenced would hold far greater weight than in a retributive or utilitarian system. An article in The Indypendent by Kiara Thomas argues that a restorative justice approach would be the best approach in this situation, since it is not only about harm caused between two people, but represents larger harms such as racism, police violence, and white privilege. This approach might also address the issue of deterrence, since restorative justice has been shown to decrease the likelihood of repeat offense on the part of perpetrators.

Amy Cooper’s first court date is October 14. Despite Christian Cooper’s lack of cooperation, experts predict Amy Cooper will still be successfully prosecuted due to the stark video evidence against her. Whether or not this is immoral depends on what one views the purpose of criminal law to be: to requite, to restore, or to deter.

Complications in Our Picture of Looting

photograph of boarded up business in downtown LA

Not all opinions are socially acceptable. Oftentimes, there is a range of acceptable opinions and opinions outside that range are not given even the slightest consideration. In May of 2020, a Minneapolis police officer, Derek Chauvin murdered an unarmed man named George Floyd through suffocation over the course of eight minutes while several other officers held back the crowds from stopping him. In response, many people have protested, some people have rioted, and a small number of people have looted. Opinions about these actions vary but, in general, we tend to think that nonviolent protests are acceptable while violent riots are not. A few support riots, but almost no one supports looting. However, the morality of looting is not as clear-cut as public opinion might suggest.

“Looting” is distinguished from ordinary theft in a few important ways. First, the word itself has its origin in describing military forces pillaging a conquered area. Thus, looting implies a breakdown of the ordinary social order. Looters, military or otherwise do not much fear prosecution for their actions.

Second, looting is always associated with a context of destruction. Looting involves not only taking property, but also destroying or damaging the business or home where the property is found. As economist Alex Tabarrok argues here, looting may be a worse crime than ordinary theft since “Looters destroy intermediate goods and infrastructure and gain far less than owners lose.”

Third, theft is more or less universally objected to by the members of a community where it takes place while looting can have public support. Thus, looters less frequently hide their identities as compared to thieves. And, looting is often done by groups, pairs, and family units while theft is usually conducted individually. It may be hard to believe that looting would be supported by the community where it takes place, but this instinct toward disbelief can be explained by the flawed assumptions people have about the motivations looters have for their actions.

The conventional view is that looting is universally opportunistic: most people believe that looters see the opportunity presented by the chaos of protests, riots, and the breakdown of law and order and use it to steal things they want for their own gain. A few, more charitable people might say that looters have no ignoble motivation and act according to some instinct that takes over in times of great stress. Almost no one believes that reasonable, well-functioning members of society would engage in violent looting. Nonetheless, these are exactly the sort of people who engage in looting according to the evidence.

L. Quarantelli and Russell R. Dynes were the founders of disaster sociology and wrote on the nature of looting in an article titled “Property Norms and Looting: Their Patterns in Community Crises.” This article was written in 1970 and the authors focused their analysis on the riots and looting that occurred between 1964 and 1968 as part of the Civil Rights Movement. Given the cause of the present riots, this article’s subject, though long past, is analogous enough to the present situation for its findings to stand the test of time.

In contrast to popular belief, they found that those engaged in rioting and looting were not the most disaffected, alienated people. In cases where black people rioted in their communities, up to one fifth of the black population participated, including many employed people with strong social ties. These people did not loot out of economic need and they were not the sort of people one would expect to be overtaken by impulse. In fact, consistent majorities in these communities viewed the riots and looting as a form of protest.

Suffice to say, rioting and looting are not broadly believed to be legitimate forms of protest. People have numerous arguments against these extreme forms of protest. Let’s briefly consider a few of these, one utilitarian, one deontological, one based in virtue ethics, and one based on an appeal to law and order.

People oppose rioting and looting on utilitarian grounds because they believe that these forms of protest cause great harms in the form of destruction of property and loss of life and have no outweighing benefits. This view is especially obvious if you view all rioting and looting as opportunistic, as violence and theft perpetrated by people who want to steal and who enjoy the chaos. However, the foundation of the argument grows shaky if violent protests are capable of affecting large scale social change.

The deontological argument against rioting and looting stems from a belief that in participating in these actions, people fail to uphold their duty to maintain other people’s rights. If people are killed in a riot, those people’s right to life has been violated. Looting violates business owners’ property rights. This argument is only defeated if by rioting and looting people obey some higher duty that they could not obey without violating other people’s rights.

The argument from virtue ethics says that good people don’t riot and loot. People advancing this argument point to preferable protests: the nonviolent protestors today as well as the gold standard, MLK Jr. and those who protested alongside him. These people, like the utilitarians, depend on the idea that looters are inspired to action by selfishness. If rioting and looting serve some higher virtue, then the argument is defeated.

Finally, and perhaps most commonly, people merely appeal to a vague sense that it is wrong to disrupt the social order. These people are opposed to all forms of illegal protest. Even if they claim to agree to the righteousness of the cause of protest, they disagree with the means of protest. The weakness of this appeal is in the righteousness of the social order. It is hard to defend upholding a social order that is deeply unjust; this is, of course, the same argument that MLK Jr. came up against in pursuing his nonviolent, though frequently illegal, protests.

The arguments against rioting and looting might seem overwhelming, but they are not undefeatable. Each depends on some assumptions that are not obviously true. Furthermore, there are some positive arguments that rioting and looting are forgivable, arguments that they are justified, and arguments that they are necessary. By considering these, we may come to a more balanced assessment of the morality of extreme protests.

The easiest argument to make is that looting is, in many cases, forgivable. In making this argument, we don’t have to defend the morality of looting. It is still an important argument to make, though, since many people are advocating extreme violence toward those who are participating in extreme protest. President Trump tweeted that “when the looting starts, the shooting starts,” mirroring former Miami police Chief Walter Headley who used the phrase in 1967. Headley was infamous for what he called a war on “young hoodlums, from 15 to 21, who have taken advantage of the civil rights campaign. … We don’t mind being accused of police brutality.” Obviously, “hoodlum” here is a dog-whistle for young black people. And, it should be obvious that using lethal force against people who are looting, essentially committing property crimes, is disproportional and unconstitutional, equivalent to executing people without trial for crimes that are never punished with execution.

Looting and rioting may be forgivable if they are prompted by incredible rage at a criminal injustice, such as the murder of George Floyd. Though many regard this rage as being misdirected when it is applied to businesses. We tend to think that a person’s judgment being clouded by emotion is enough to diminish their legal culpability. So-called “crimes of passion” are already punished less severely than premeditated crimes. We can extend this reasoning to think rioters deserve a great deal of forgiveness.

MLK Jr. gave a speech called “The Other America” where he said that “a riot is the language of the unheard.” Rather than being an action taken out of selfishness, rioting and looting are actions taken as a cry for help, a call for reform, albeit an extremely disorganized sort of call. He went on to ask this sharp rhetorical question: “what is it that America has failed to hear?” And he answered it thus: “It has failed to hear that the plight of the Negro poor has worsened over the last few years. It has failed to hear that the promises of freedom and justice have not been met.” Given the stunning amount of racist police violence that persists to today, it’s clear his words ring just as true in 2020 as they did in 1967. So, if any crimes at all should be forgiven, looting that causes no physical harm to anyone is one of them. We can still hold that looting is a crime, and that it deserves punishment while still maintaining that it is not unforgivable and deserving of execution by cop or soldier.

Arguing that looting and rioting are justified is quite a bit harder, though still very possible. Prominently, The Daily Show host, Trevor Noah, did this very thing in a video he posted in the midst of the protests. Noah justifies the ongoing extreme protests by appealing to social contract theory and turning the question on its ahead. Instead of asking “why do people loot?” he asks “why don’t people loot?” and attempts to give an answer. Hearkening back to seventeenth century English philosopher Thomas Hobbes, he argues that people are only obliged to follow the laws because they have agreed to do so in order to enjoy the benefits of an ordered, just society that cannot exist without laws. But, as Vanity Fair transcribes him saying,

“As with most contracts, the contract is only as strong as the people who are abiding by it. If you think of being a black person in America who is living in Minneapolis or Minnesota or any place where you’re not having a good time, ask yourself this question when you watch those people: what vested interest do they have in maintaining the contract? Why don’t we all loot?”

The greatest benefit people gain from escaping the Hobbesian “state of nature” is protection of their lives and property. As black people are under constant threat of murder by the government (through the police) they cease to have any reason to obey the social contract. It’s all risk, no reward, essentially. Given that, if they can’t escape the risk, they might as well enjoy the reward of the state of nature, getting to take whatever you can by your own power.

More radically, some argue that looting is justified not because it is itself a right action, but because its rightness or wrongness pales in comparison to the institutionalized looting of the poor by the rich. Former senior adviser of the 2020 Bernie Sanders campaign David Sirota asks why “Working-class people pilfering convenience-store goods is deemed ‘looting,’” while “rich folk and corporations stealing billions of dollars during their class war is considered good and necessary ‘public policy.’” He compares the amount of value transferred unjustly from business owners to working-class people via looting (small) with the amount of value transferred unjustly from working-class people to business owners via the regressive tax cuts of the Trump administration (very large). Perhaps it is wrong to loot, but business owners still end up better off than those who loot their businesses via their “theft” of working-class wealth. Just because that latter wealth transfer occurs through official channels does not make it moral just as the former wealth transfer is not immoral merely because it is illegal.

Some even go so far as to say that rioting and looting are necessary for real social change to occur. Rather than appealing to the moral sensibilities of those in power, these people take a the political realist approach and seek to make the cost of reform less to these people than the cost of continuing the status quo. Self-interestedly, then, the powers that be will influence the political agenda to induce reform. Arguably, rioting and looting works to this end: looking again at the article from E. L. Quarantelli and Russell R. Dynes, we can see extreme protests raged after the assassination of MLK Jr. and less than a week later, major civil rights legislation was passed. Afterward, the frequency of large scale rioting and looting drastically decreased.

On the other hand, rioting and looting can backfire: the powers that be can stop the rioting and looting by enacting reform, but they can also stop it by increasing police repression of protestors and minorities. After the Civil Rights Movement and all the extreme protests that came along with it, there was backlash with the election of Richard Nixon who campaigned on “law and order,” whose administration oversaw the Kent State shooting of thirteen unarmed protestors, killing four, and whose domestic policy chief John Ehrlichman was quoted as saying “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people.” This idea is commonly known as “the activist’s dilemma.” The evidence suggests that extreme protest actions can enact social change and diminish public support for a protest’s cause. It is paradoxical, but makes some sense if one thinks of change as being enacted by those in power, whose interests are not identical to the population at large.

Looting and rioting are extreme responses to extreme injustices. The murder of George Floyd is an unacceptable symptom of a policing system that is based on “domination” rather than the consent of the governed. It is unjust that more black people are killed than white people than would be expected given the share of each in the population. More importantly, though, it is unjust that unarmed people are being killed by police in broad daylight without trial. Something needs to be done to rectify these injustices. Ideally, change could be instituted by peacefully persuading people but given how these injustices have persisted despite decades of peaceful persuasion, there is reason to question whether more extreme protest measures are justified. At the very least, those who choose to engage in extreme protests such as by rioting and looting are forgivable. There is good reason to think that extreme protests are even justified. And, it may even be that looting and rioting are necessary for real social change. The activist’s dilemma, however, gives us reason for pause.

Ultimately, protest is a chaotic activity by nature, prompted by the rage that stems from injustice. Rather than focusing our ire on those who react imperfectly to those injustices, we ought to focus on the circumstances that prompt people to act in ways that may make things worse rather than better. No matter how many TVs are stolen, no matter how many windows are broken, it is hard to compare these property losses to the loss of human life that comes from the unjust and racist oppression of the people by the government in a country that prides itself on originating such ideas as “liberty and justice for all.”

Solitary Confinement and COVID-19

photograph of empty prison cell

On March 28th, 2020, Patrick Jones became the first person incarcerated in federal prison to die of coronavirus. At the time of his death, Jones had served 12 years of his 27-year sentence for a non-violent drug charge. He was working hard on appeals, hoping to get out early to live a different kind of life with his children. The spread of coronavirus in prison made that dream an impossibility. Since Jones’s death, four other inmates died of COVID-19 at the institution in Louisiana at which he was being held.

In response to the deaths and to the continued spread of the virus in the facility, six immunocompromised incarcerated individuals at the prison have sued for early release, claiming that the response to the situation has been too slow and that their lives are in serious danger. They don’t want their sentences to turn out to be death sentences, as Jones’ did. Their suit was filed by the ACLU last week.

Concerns about the spread of coronavirus in detention facilities has motivated both state and federal detention facilities to release some prisoners, as I have written about here. Other approaches to dealing with the outbreak are more disturbing. The Federal Bureau of Prisons announced that, for the next two weeks, inmates will be confined to their cells for 14 days—a move that strongly resembles implementation of solitary confinement for the entire prison population. At the end of the 14-day period, the action will be reassessed and may be extended if necessary.

There is good evidence to support the conclusion that solitary confinement takes a significant mental toll on those who are subjected to it. Former Harvard psychologist Stuart Grassian conducted a study that indicated that roughly a third of people in solitary confinement were “actively psychotic and/or acutely suicidal.” In addition to those conditions, those held in solitary confinement experienced conditions such as “hallucinations; panic attacks; overt paranoia; diminished impulse control; hypersensitivity to external stimuli; and difficulties with thinking, concentration and memory.”

Under ordinary conditions, solitary confinement is used by prison employees for a range of reasons. Inmates are sent to solitary confinement for disciplinary reasons. They also may end up there for their own protection when there is reason to believe that a threat exists to life or well-being. Many argue that there are no legitimate reasons to relegate a person to solitary confinement and that the practice constitutes cruel and unusual punishment. In keeping with this judgment, a handful of states have passed laws limiting or banning the practice.

Lack of access to consistent, quality mental health services exacerbates this problem. There is evidence to suggest that, at least when it comes to federal institutions, mental health issues frequently go unresolved. Given the known link between solitary confinement and mental illness, at a very minimum, funding and staff should be provided to adequately and humanely address the predictable mental illness this policy is likely to cause.

In response to these general concerns about solitary confinement, some argue that desperate times call for desperate measures. This situation lends itself to no ideal solutions. Confining incarcerated people to their cells is the lesser of two evils. It may be the case that solitary confinement leads to mental illness, but mental illness is better than dying of coronavirus. They argue that there is simply nothing else to do.

Others argue that the rapid spread of infectious disease is a predictable part of an incarcerated experience. When the offender chose to commit a crime, they knew that they might be caught and that the prison experience wouldn’t be pleasant. There is a reason why the possibility of prison is supposed to serve as a deterrent to crime. We have to punish people who commit crimes, or the law will become meaningless. Prison officials must do their best under difficult circumstances, and solitary confinement in these cases may be the best they can do given their obligation to keep those who have committed crimes incarcerated.

In response, one might challenge such a strenuous commitment to the idea that it is morally necessary to keep individuals who have committed crimes incarcerated come what may, even when doing so means they will live weeks in solitary confinement. The right approach might be to let many more inmates out of prison than we have so far (but only under the conditions that their situation isn’t more compromised outside of prison than it is inside). There may be no ready humane strategies for dealing with this pandemic, but with any luck this will cause our culture to radically rethink how we understand criminality and the proper role of punishment.

One significant challenge to bringing about real change is that individuals who have committed and/or have been convicted of crimes are politically marginalized. They have limited platforms for speech, and, in many cases, they can’t vote. Many people adopt a retributivist attitude toward criminal punishment, which results in a state of affairs in which no one is paying attention to the way incarcerated people are treated.

If, indeed, inmates must be held in solitary confinement for their own good, steps should be taken to ensure that this is done as humanely as possible. They should be treated with respect and regard, their desires to communicate with friends and family should be honored to the greatest extent possible, and their need for exercise and recreation should be accommodated.

Now that we’ve seen the problems that a pandemic of this magnitude can pose for detention facilities, we are morally obligated to see to it that we don’t return to business as usual after the it is over. What changes can we make to institutions to make it less likely that we’ll have to resort to solitary confinement in the future? What steps can we take to limit the number of incarcerated people in the United States? More theoretically, we should ask if all crimes should be viewed through the lens of retributivism. In some cases, a broad range of rehabilitative efforts might be more appropriate. An even more holistic approach would focus time and resources on the root social causes of crime so that we’re preventing it from occurring in the first place rather than punishing it in inhumane ways after it has taken place.

Felicity Huffman Sentencing: Justice and Fairness in Punishment

photograph of Felicity Huffman and William H Macy

The college admissions scandal has come into prominence once more this week with the conviction and sentencing of “Desperate Housewives” star Felicity Huffman. In attempting to get her daughter into college, she paid $15,000 to a “charity” controlled by William Singer, a now notoriously corrupt admissions consultant, to have him bribe an SAT proctor to correct her daughter’s answers before submitting the test. For committing “honest services fraud,” Huffman was fined $30,000 and sentenced to 2 weeks in prison, 1 year of probation, and 250 community service hours.

The Washington Post quoted Daniel Richman, a professor at Columbia Law School, as saying “Both those who think the conduct here shouldn’t have been prosecuted and those concerned about special treatment for the privileged are bound to be dissatisfied.” And how could they not? On the one hand, the American criminal justice system is already overfull and overworked. The jails and prisons, too, are near their capacity. Essentially, some say, we are wasting resources prosecuting a first time nonviolent offender who has confessed her guilt and shown remorse.

Indeed, this is the attitude people have toward a variety of “white collar” and “victimless” crimes. However, they are only labeled as such due to the invisibility of the consequences, not due to the consequences actually being nonexistent. Every spot taken by a rich person who arrives there unmeritocratically is potentially a spot that could have been given to someone whose life could be changed by the chance. Those people, though, do not even realize a crime has been committed against them, blaming instead their own supposed insufficiency rather than a corrupt system.

Others dismiss these sorts of crimes because they seem inevitable. If they do not illegally bribe their kids into elite colleges, some say, they will do so through legal donations. But, this is a case of whataboutism. “What about kids getting into college because their parents are donors? Isn’t that unmeritocratic too? We’re not prosecuting those people so why are we prosecuting this woman?” However, we need not choose one or the other. They can be separate discussions, considered consecutively, not simultaneously.

Perhaps those parents getting their kids in via legal donations are doing something immoral too (for discussion see A.G. Holdier’s “The Ethics of Legacy Admissions”). The fact that there are multiple problems to consider does not entail that we may only try to solve all of them or none of them. Each can be considered in its own time. Thus, let us consider the fact that, for her crime, Huffman received what amounts to not even a slap on the wrist due to her wealth. Indeed, the punishment Huffman was given by Judge Indira Talwani sheds light on the disparity of punishment between the extremely wealthy and the rest of us.

The median American’s wealth (not average because that value is skewed by billionaires), according to the Federal Reserve’s Survey of Consumer Finances, is $97,300. Even among those above 75, who have accumulated wealth for the longest, that value is only $264,800. In comparison, estimates for the wealth of Huffman and her husband, William H. Macy, each fall in the range of $20-50 million. Even assuming that minimum value, a $30,000 fine only amounts to 0.15% of their wealth. For that median American, the same fine would encompass 30% of all the money they ever made.

Certainly, this is an “equal” punishment, if “equal” is taken to mean the same numerical value, regardless of place or station. However, the impact on Huffman’s life as compared to some ordinary person is drastically different. A fine of 0.15% of that ordinary person’s wealth would amount to only about $150. That is the impact Huffman feels from the fine she was given. The same goes for her prison sentence and community service requirement. Most Americans have to work for a living and need a clean record to get a job. Huffman and her husband have enough money to live the rest of their lives without acting again. A prison sentence like that and so many community service hours are just annoying for the very wealthy, not life-ruining as they can be for many people of ordinary stature.

“So what?” says the cynic, “College admissions are already corrupt and have little to do with real ability. Huffman did not do anything particularly wrong. The only difference between her and the rest of the upper class is that her bribe happened to be illegal. Donors’ kids get into prestigious universities without the requisite ability all the time. There’s no good reason to waste the government’s time prosecuting cases like these.” The cynic may very well be correct, and, in fact, the judge in the case seemed to agree, saying that the college admissions system “has cracks in it with or without what these defendants have done.”

Regardless of how bad the action was, however, a fair justice system demands that justice be proportional to the crime committed. In Huffman’s case there are two possibilities: either her actions were not of any significance, in which case she need not be prosecuted, or her actions were of significance, in which case she need be punished proportionally. What actually occurred was that Huffman was prosecuted, but given what amounts to no punishment for a minor, but significant, crime. At the very least, a fair punishment for a minor, but significant, crime is a minor, but significant, punishment. However, the nature of sentencing guidelines is such that it does not allow for fines to enact any significant punishment and the alternative, time in prison, seems excessive.

Indeed, it seems inappropriate to put a person such as Huffman behind bars for years for trying to help her daughter get into college with bribes, an action for which she has shown remorse. But, there really is no punishment besides time in prison which can create the same impact of punishment regardless of class. In the case of the crime she admitted to, “honest services fraud,” the maximum fine is $250,000, only 1.25% of her wealth. Now, that percentage of the median wealth actually seems substantial, about $1,200. However, this judgment does not account for another difference between the upper class and the rest.

When a person has millions of dollars, her living expenses are a minuscule portion of her wealth. For most others, living expenses (rent, car payment, gas, food, etc.) take up a much larger portion. In essence, most people cannot pay such a fine without sacrificing some of their basic needs. A proportionally-sized fine for the ultra-wealthy, though, has no impact on their lives. Either fines must be able to cause a proportional impact on the very rich, not simply a flat percentage, or something else valuable must be taken away. For this class of people, the only truly valuable thing they cannot get more of is time. A long prison sentence, regardless of class, has a truly significant impact on one’s life.

As Oren Nimni puts it in Current Affairs, this sort of disparity in punishment,

“fundamentally delegitimizes the entire legal system, by severing the relationship between punishments and their purpose. It makes a joke out of the ideas of both the punishment fitting the crime and equality under the law, two bedrock principles necessary for  “law” to command any respect at all.”

There is plenty of room for discussion about what sorts of crimes ought to be prosecuted, about whether crimes deserve more fines or more prison time, and about the purpose punishment is supposed to serve. However, it seems clear that, regardless of what comes of these discussions, it can be agreed that the impact of a just punishment cannot vary based on class.

Determinism and Punishment

photograph of an open cell block

One summer evening, a friend and I tackled the question of free will and all that it entails. Do we have free will? If we do, how do we know do? If we do not, what are the implications for social and legal norms? My friend, who argued against the existence of free will, posited a scenario in which he was “molecule for molecule” a violent criminal, asking me if he could have chosen to act differently than the violent criminal.

The immediate reaction might be, “No.” How could he have? But this rhetorical device, used by Sam Harris to disprove the existence of free will, is not entirely helpful. It does not prove that we cannot freely choose; it merely shows that if you were “molecule for molecule” someone else you would make the same choice that they made, which is self-evident. It reveals nothing about what you could have done, nor anything about the choices available to you and your ability to choose.

But suppose my friend is correct and we do not have free will. This view coincides with the philosophical doctrine of determinism. Writing for the Stanford Encyclopedia of Philosophy, Carl Hoefer defines determinism as the philosophical belief that “given a specified way things are at a time t, the way things go thereafter is fixed as a matter of natural law.” In other words, a violent criminal such as Davis Bradley Waldroup, Jr.  could not have acted differently.

Waldroup engaged in acts of undeniable brutality. An article in The New Statesman describes how he shot his wife’s friend eight times with a rifle before attacking his wife. Waldroup shot her, maimed her, bludgeoned her with a shovel and a machete, and attempted to rape her before she managed to escape. Yet Waldroup was only found guilty of voluntary manslaughter, kidnapping, and attempted murder, partly because his defense team successfully argued that Waldroup possessed a genetic predisposition to violence, preventing him from engaging in the judgment and reflection required for premeditated crimes (for a similar case see Meredith McFadden’s “‘It Wasn’t Me’: Neurological Causation and Punishment“).

Warranted outrage followed from the families of the victims when he was sentenced to a mere 32 years in prison. Waldroup’s wife said the sentence “was not justice.” Many would agree that the punishment was not equivalent to the severity of his wrongdoing; it was not the punishment he deserved. But if Waldroup did indeed possess a violence gene and thus, no free will in this situation, how can we even conceptualize what he deserves? Determinism renders the sentiment “He did not get what he deserved” meaningless and irrelevant. And that is not all. 

The most fundamental structures in our daily lives are based on the belief that we are free to choose how to act. While we seek and discover external factors (be they biological or environmental) that influence a person’s decision or even the external factors that brought the individual to a moment of choosing, these explanations do not contradict our conception responsibility.  Without the foundation of free will, even the relevance of morality becomes suspect. Either morality cannot exist because people cannot choose to do something right or wrong OR it is already determined that one person will act morally good or morally bad. 

Adopting the view that free will does not exist would require a near-revolutionary reform of our justice system. As Luis E. Chiesa of Pace Law School notes, “It is because of this uniquely human capacity to choose to do otherwise that humans can and should be blamed for their crimes.” Our current system, for all of its failings and imperfections in practice, is based on a consort of factors: rehabilitation, deterrence, public protection, retribution, and proportionality of the punishment to the crime. A new justice system capable of accommodating determinism would need to be based not on retribution or what the lawbreakers deserve, but rather solely on concern for public safety, deterrence, and rehabilitation. 

Some may wonder how rehabilitation could be retained under this reformed justice system. Is it possible to rehabilitate someone’s behavior if it is determined? It is a worthy criticism. Yet it is possible that some determinists could argue that just as an animal, whose behavior is determined by their nature, can be trained to act in a certain way, a human can be rehabilitated, or trained to behave in a less dangerous way. 

Forms of incapacitation, such as incarceration, would exist merely as a means of protecting the public from violent criminals. Lawbreakers who are not violent, such as those who evade taxes, for example, would not need to go to prison as they pose no threat to the safety of the public. Instead, they would need to, if possible, rehabilitate their evasive ways so that they refrain from committing the act again. The only purpose of any other form of legal punishment would be to deter individuals from breaking the law. 

Suppose Waldroup’s violent behavior was altered after one day of rehabilitating in prison and he would never again attempt to brutalize another human being. Should he be punished further than the one day in prison for his previous acts of murder and assault? Troubling as it may be, the determinist would say, “No.”

Why should he? His behavior has been changed, he no longer poses a threat. Like a dog who has learned not to pee inside, Waldroup has been trained to no longer behave in that unacceptable and dangerous way. And given that he did not freely choose to kill one woman and severely injure another, the purpose of punishing him is nullified. He deserves nothing because he controls none of his decisions. 

Even the well-known determinist Sam Harris points out, “Without free will, sinners and criminals would be nothing more than poorly calibrated clockwork, and any conception of justice that emphasized punishing them (rather than deterring, rehabilitating, or merely containing them) would appear utterly incongruous.”

If free will is an illusion, although I am inclined to believe it is not, there is demonstrable value to living under that illusion. The idea that you and I have control over our actions affects the way we behave and structures the nature of our interactions and relationships. We expect and hope for certain behaviors to be exhibited by the people in our lives. We express disappointment in others when they have done worse than they should have because we believe they could have done better. Just as we express pride or happiness in others when they have done better than they should have because we believe they could have done worse. But blame and praise is utterly irrelevant if you believe others could not have done anything other than what they did. 

Let me live under the illusion that I freely chose to write this op-ed and I will let you live under the illusion that you freely chose to read it. And we can both go back to agreeing that some people do not receive the punishment they deserve.

“It Wasn’t ‘Me'”: Neurological Causation and Punishment

photograph of dark empty cell with small slit of sunshine

The more we understand about how the world works the more fraught the questions of our place in the causal network of the world may seem. In particular, the progress made in understanding how the mechanisms of our brain influence the outward behavior of our minds consistently raises questions about how we should interpret the control we have over our behavior. If we can understand the neurological processes in a causal network that explain the way we act, in what sense can we preserve an understanding of our behavior as ‘up to us’?

This has been a concern for those of us with mental illness and neurological disorders for some time: having scientific accounts of depression, anxiety, mania, and dementia can help target treatment and provide us with tools to navigate relationships with people that don’t always behave like ‘themselves’. In serious cases, it can inform how we engage with people who have violated the law: there is a rising trend to use “behavioral genetics and other neuroscience research, including the analysis of tumors and chemical imbalances, to explain why criminals break the law.”

In a current case, Anthony Blas Yepez is using his diagnosis with a rare genetic abnormality linked to sudden violent outbursts to explain his beating an elderly man to death in Santa Fe, New Mexico, six years ago in a fit of rage. His condition explains how he wasn’t “fully in control of himself when he committed the crime.”

Putting aside our increasing ability to explain the psychological underpinnings of our behavior more causally or scientifically, our criminal justice system has always acknowledged a distinction between violent crimes committed in states of heightened emotionality and those performed out of more reasoned judgments, finding the latter to be more egregious. If someone assaults another immediately after finding out they cheated with a significant other, the legal system punishes this behavior less stringently than if the assault takes place after a “cooling off period”. This may be reflective of a kind of acknowledgement that our behavior does sometimes “speak” less for us, or is sometimes less in our control. Yepez’s case is one of a more systematic sort where he is subject to more dramatic emotionality than the standard distinction draws.

Psychological appeals for lesser sentences like Yepez’s are successful in about 20% of cases. Our legal system still hasn’t quite worked out how to interpret scientific-causal influences on behaviors, when they are not complete explanations. Having a condition like Yepez’s, or other psychological conditions we are gaining more understandings of every year, still manifest in complex ways in interaction with environmental conditions that make the explanations fall short of having a claim to fully determining behavior.

It does seem that there is something relevantly different in these cases; the causal explanations appear distinct. As courts attempt to determine the implications of that difference, we can consider the effect of determination-factors in how we understand behavior.

John Locke highlights the interplay between what we may identify as the working of our will and more external factors with a now-famous thought experiment. Imagine a person in a locked room. There seems to be an intuitive difference between such a person who wishes to leave the room but cannot – their will is constrained and they cannot act freely in this respect. On the other hand, something seems importantly different if the person were in the locked room and didn’t know the door was locked – say they were in rapt conversation with a fascinating partner and had no desire to leave. The world may be “set up” so that this state of affairs is the only one the person could be in at that moment, but it isn’t clear that their will is not free; the constraints seem less relevant.

We can frame the question of the significance of the determination of our wills in another way. While not all of our actions are a result of conscious deliberation, consider those that are. When you question what to eat for lunch, what route to take to get to your destination, which option to take at the mechanics, etc., what would result from your certainty that your ultimate decision is determined by the causal network of the world? If, from the perspective of making a decision, we consider ourselves not to be a source of our own behavior, we would fail to act. We would be rendered observers to our own behavior, yet in a perspective of wondering what to do.

Note an interesting tension here, however: after we decide what to do (to have a taco, take the scenic route, replace the transmission) and perform the relevant action, we can look back at our deliberative behavior and wonder at the influences that factored into the performance. It often feels like we are in control of our behavior at the time – say, when we consider tacos versus hamburgers and remember how delicious, fresh and cheap the fish tacos are at a stand nearby, it seems that these factors lead to seeking out the tacos in a paradigmatic instance of choice.

But what if you had seen a commercial for tacos that day? Or someone had mentioned a delicious fish meal recently? Or how bad burgers are for your health or the environment? What if you were raised eating fish tacos and they have a strong nostalgic pull? What if you have some sort of chemical in your brain or digestive system that predisposes you to prefer fish tacos? If any of these factors were the case, does this undermine the control you had over your behavior, the relevant freedom of your action? How do such factors relate to the case that Locke presents us with – are they more or less like deciding to stay in a locked room you didn’t know was locked?

These questions could be worrying enough when it comes to everyday actions, but they carry import when the behaviors in question significantly impact others. If there is a causal explanation underpinning even the behaviors we take to be up to our conscious deliberation, would this alter the ways we hold one another responsible? In legal cases, having a causal explanation that doesn’t apply to typical behaviors does lessen the punishment that seems appropriate. Not everyone has a condition that correlates to violent outbursts, which may make this condition a relevant external factor.

Aging and Blaming in the Criminal Justice System

Photograph of a long hall of cells with light and a dome at the end

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A recent study in the medical journal The Lancet suggests that, if trends hold, 50% of babies born today will live to be over 100 years old.  Though long life is typically thought of as a good thing, some of our ordinary practices may need to change to track philosophical and practical challenges posed by longer life spans.  In particular, we need to reflect on whether our attitudes about blame and punishment need to be adjusted. For example, last year, John “Sonny” Franzese was released from an American prison at the age of 100.  Franzese was sentenced to fifty years for a bank robbery. The unique challenges and philosophical questions posed by extreme old age cast the moral permissibility of incarcerating the elderly into question.

Arguably, we need to think critically about duration of punishment. The criminal justice system in The United States relies heavily on retributivism as a justification for sentencing.  The concept of blame is central to a philosophy of retributivist justice. As an act of retribution, criminals are often given multiple life sentences or are sentenced to a number of years in prison that far exceeds the amount of time that criminal could reasonably expect to be alive. There is room for debate concerning the usefulness of blame as a moral concept.  Supposing, however, that blame is an important evaluative attitude in our moral lives, there is good reason for reflection on whether and under what conditions other moral considerations are more important than whether an agent is morally blameworthy. As lifespans increase, a life sentence becomes a still more serious proposition. At what point, if any, does respect for human dignity outweigh our retributivist concerns to ensure that a blameworthy agent is held responsible for their actions?

Intuitively, regardless of the nature of the crime, there are some upper limits to how long it is appropriate to punish someone.  For example, in his paper Divine Evil, David Lewis points out that it could never be just to punish a person infinitely for a finite crime.  Of course, in the context of the paper, Lewis is arguing that an omnibenevolent God couldn’t sentence a person to an eternity of torment in hell for a finite sin, but the main point here holds.  If human beings were immortal, it would be unjust to hold them in prison forever with no chance of release as punishment for a single crime or series of crimes.  That suggests that there is a time at which continuing to punish a blameworthy person is no longer morally justified. Some countries, like Portugal, Norway, and Spain, don’t sentence convicted criminals to life in prison at all.  In many other European nations, a life sentence always includes the possibility of parole. The understanding seems to be that a life sentence without the possibility of parole is a human rights violation. Even if the United States does not come around to thinking about the issue in this way, as human lifespans continue to get longer, it’s important to identify the point at which punishment is no longer morally permissible.

For retributivism to be justified, our assessments of blame must be apt.  For our judgments of blameworthiness to be apt, it must be the case that we are blaming one and the same person who engaged in the wrongdoing for which they are being blamed.  Increased lifespans muddy the waters of identity judgment. An extremely elderly person may have little to no psychological continuity with the being they were when they engaged in wrongdoing.  In his paper The Makropulos Case: Reflections on the Tedium of Immortality, Bernard Williams argues that if a being were immortal, or even if that being were to live an exceptionally long life, that being would either become extremely bored or would change so much that they would no longer be justified in judging future experiences as their own experiences.  Living a flourishing human life is a matter of setting goals and completing projects.  The kinds of goals we set goes a long way to establishing who we are as people. If we continue to set goals of the same type, Williams argues, we will inevitably get bored.  If we set different goals, we will eventually become totally different people, unrecognizable to our former selves.

Aging criminals aren’t immortal, but as human lifespans continue to increase, it may well be the case that they resemble their former selves in very few respects.  If this is the case, it is far from clear that our identity judgments are justified or that our assessments of blameworthiness are apt. This recognition should also cause us to reevaluate our goals when it comes to punishment.  As prisoners age, should our philosophy of punishment still be retributivism?

If blame is a useful moral concept, it is, at least in part, because a moral community that makes use of blame has a mechanism for encouraging bad actors to change their behavior in the future.  To successfully bring about this change in behavior, it is important that the behavior in question is a salient thread in the life narrative of the wrongdoer. Once enough time has past such that this is no longer true, it’s possible that continuing to blame a wrongdoer no longer serves this important social function in our moral community.

Opinion: Kevin Williamson Is Right (About One Thing)

photograph of an anti-abortion protest

Kevin Williamson, a flame-throwing National Review contributor for many years, was recently hired by The Atlantic as part of the magazine’s effort to include conservative voices, and then he was fired. The bridge too far was not the fact that he had once tweeted out a call for women to be hanged for having abortions, but the fact that this wasn’t just an impulsive tweet. In a podcast unearthed by his critics, he can be heard saying that he does indeed think women who have abortions should be treated however we treat murderers. He also expresses doubts about capital punishment, so—rejoice?—the bit about hanging was just a rhetorical flourish.

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In Michigan, A Prisoner Forced to Pay for His Own Incarceration

An image of a prison window

In the state of Michigan, Curtis Dawkins, prisoner and recent book author, could be forced to pay his dues of incarceration from the money received from his literary work.

Dawkins has been incarcerated for almost 12 years for murdering a man and has been writing a collection of short stories to pass the time. Before Dawkins was incarcerated, he was a writer earning his Master of Fine Arts degree. Most of the short stories in Dawkins’ The Graybar Hotel tell the life story of a prisoner, narrated in first person. The Graybar Hotel caught the attention of one of the top literary publishers in the United States, and offered Dawkins $150,000 to publish the collection of short stories.

But the offer has raised some serious questions. Some wonder if it is acceptable to support a person who was once involved in such an evil crime. Should inmates be allowed to receive money from stories about their prison life, which is a place intended for punishment?

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California Debates Parole for a Member of the Manson Family

On the night of August 9, 1969, several young people crept into the Los Angeles home of Leno and Rosemary LaBianca.  At the behest of cult leader Charles Manson, they stabbed the couple to death. Cult member Leslie Van Houten stabbed Rosemary LaBianca fourteen times. The group wrote messages on the wall in the victims’ blood. After she played her part in the murder, Van Houten took a shower, put on one of Rosemary LaBianca’s dresses, and ate some food from the refrigerator.

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Scotland May Ban Spanking. Should the United States?

A stereograph of a woman spanking her child.

An October 19, 2017 article in The Scotsman reported that the Scottish Government plans to implement proposals that would “remove the defence of “justifiable assault” from Scottish law, which can currently be used by parents who use corporal punishment on their children. Late last year, France also instituted a law banning the spanking of children. This made it the 52nd country to do so.

The United States is not on that list of countries. According to an NBC News report from 2014, corporal punishment is legal in all 50 US states. State statutes generally indicate that the physical punishment must be “reasonable” or “not excessive.” In addition, 19 states still allow corporal punishment in schools, as of 2014. Public opinion in the United States also widely supports spanking. The NBC News report cited a 2013 Harris Poll which found that 81 percent of Americans say “parents spanking their children is sometimes appropriate.”

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Does America Believe in Rehabilitation for the Incarcerated?

A low-angle photo of barbed wire at a prison.

Michelle Jones wasn’t the only applicant to be rejected from Harvard University this year. However, hers is in many ways a special case. While she was initially accepted by the history department of Harvard’s Graduate School of Arts and Sciences, her acceptance was ultimately overturned by Harvard’s administration. This move was in connection to the most interesting part of her case: Ms. Jones was only released in August of this year from the Indiana Women’s Prison after serving 20 years of a 50-year sentence for homicide. Although the legal system considered her sentence to be served in full, Harvard University—an elite academic institution—considered her past conviction as grounds for rejection. What does this say about the notion of reform and rehabilitation in the United States?

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Taking Stock of Solitary Confinement’s Mental Toll

In prisons throughout the United States, a total of somewhere around 80,000 prisoners are isolated from human contact for 22 to 24 hours a day. These prisoners are kept in very small cells—spaces of roughly 80 square feet.  In the cell is a bed, a toilet, and very little else.  Prisoners in solitary are fed three meals a day and are often allowed outside every day for an hour, with no contact with other prisoners.  The practice, commonly known as “solitary confinement” has come to be known by a number of euphemisms, including “restrictive housing” and “segregation.”

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