Intuitions about Criminal Justice

After more conversation with Ben, I've become increasingly convinced that "conservative" attitudes about criminal justice are often more well founded than "liberal" ones. In this post, I'm going to try to elucidate some of the natural sympathies and antipathies we have about this in order to argue for a more "conservative" approach to criminal justice.

(N.B.: I am not using "conservative" and "liberal" in any particularly rigorous sense. I do not mean to suggest that these two are exhaustive, mutually exclusive, or even well-defined categories. This is a sketch, as blog posts almost invariably are.)

I think a lot of our attitudes about crime come about because we empathize with some of the individuals involved more easily than others. I notice in myself, as more or less a liberal, the following kinds of attitudes.

1. General antipathy towards authority figures. Face it, we liberals don't particularly care for police officers, judges, and other individuals who exercise power over others in a very direct way. We don't like being told what to do and we feel that many of the laws that people commonly break are unjust (e.g., drug laws) and that many authorities like to abuse their power. At the same time, we don't like to exercise authority over others if it seems arbitrary.

2. Sympathy with the wrongly accused. There is an overabundance of literary and cultural figures who suffer horrible fates through no fault of their own. Kafka's Trial and the fate of Dmitri in The Brothers Karamazov are two examples that spring to my mind immediately.

3. Anti-racism. Part and parcel with the previous two considerations, liberals tend to focus on examples of blatant racism in the system. Many African American men are wrongly accused and unjustly convicted. We worry both about the plight of these individuals and the racist tendencies of police and other officials.

4. Sympathy for criminals who grow up in impoverished or hostile environments. Even in those cases in which a criminal is justly apprehended, we still tend to want to be lenient on individuals who are often just responding to a harsh upbringing. We think to ourselves that we'd do the same things if we grew up in such awful conditions.

I think all of these are legitimate concerns and should have a place in our moral life. But let's consider some contrasting conservative intuitions which counterbalance them.

5. Sympathy with the victims of crimes. Conservatives are wont to point out how awful it is to be victimized and how justice demands an appropriate response, a punishment that fits the crime. Liberals share these sympathies in selective cases, for instance, rape and sexual assault and hate crimes.

6. Antipathy towards criminals. Conservatives are much less likely to empathize with offenders, particularly in cases of violent crime. We liberals have a distaste for some criminals--white collar embezzlers and exploiters, war criminals and profiteers like Bush & Co., those who commit hate crimes, etc.

7. Safety concerns. All of us have these to some extent, but I think the desire to live in a safe community in which one's loved ones are less at risk is especially strong in conservatives. This leads them to worry about, not the wrongly convicted, but the unjustly acquitted. Conservatives don't want known criminals roaming the streets--and this holds also for those who served time in prison but are unreformed.

8. Trust of authority figures. Conservatives are also more likely to have respect for law enforcement officials. They recognize that these individuals perform a valuable service for communities and often risk their lives to protect citizens.

These lists aren't exhaustive, of course, but I think they give us a basis to work from. I think that we would all, regardless of political ideology, do well to consider the different perspectives involved so that uncritical intuitions don't lead us to make hasty conclusions.

My argument so far advocates a more balanced approach to criminal justice in which no individual sympathy or antipathy skews our reasoning. Now, I hope to point out an additional cluster of liberal intuitions, which, if reconsidered, would tend to support more traditionally conservatives attitudes about criminal justice.

Punishment, restrictions of freedom, and even mere unpleasantness are related phenomena to which many liberals harbor a strong aversion. I think this prejudice comes out particularly in liberal attitudes towards education. Children are increasingly coddled and are led to develop bad habits which harm both them and others, but which could be nipped in the bud by an appropriately applied punishment.

For example, behaviors which have traditionally been stigmatized in schools are increasingly being tolerated. One instance which Ben pointed out to me involves pencil tapping. Some children have a nervous tendency to repeatedly tap their pen or pencil on their desk, making it difficult for others to concentrate.

The most effective approach to dealing with this behavior would probably be a (literal) slap on the wrist, but even if we avoid corporal punishment entirely, it still seems the most reasonable response would be to punish the children in some other way (maybe even just telling them to stop, which puts a social pressure on them).

However, what some teachers have begun doing is giving the students drinking straws to tap instead. The problem is taken as some inflexible given, a natural disorder which requires educators to accommodate students rather than vice-versa. But this is bad for everyone involved. The child is reinforced in a bad behavior that, outside of the protective school environment, could lead to other bad consequences. Meanwhile, we have to take extra time and effort to see to the children's "special needs".

Pencil tapping is obviously a trivial example of this, but more generally there is this strong aversion among liberal educators to any kind of traditional discipline. What we lack if we are guided by this prejudice is a more robust sense of individual well-being and freedom.

Freedom is not simply non-interference. This idea, famously articulated in Mill's harm principle, is simply inappropriate for educational settings. There is also a positive sense of freedom in which the free person is she who develops her talents and skills and has mastery over herself. She is less guided by prejudice and blind habit in her actions.

In educational settings, it is wrong not to interfere with the individual being educated. The right kinds of habits must be established for a child to become a fully competent adult. But the same applies to matters of criminal justice. This is also an educational institution, in a broad sense of the term.

Criminals are individuals who have acquired certain bad habits which we would do well to eliminate (the habits, not the criminals). Crimes come with natural benefits (the stolen car stereo, the relief of anger taken out on another, or any sort of free ride). Punishments are necessary to offset these benefits: if a punishment is certain, swift, and sufficiently severe, it can effectively deter bad behavior (leaving open here the precise meaning of "bad behavior").

It doesn't matter if the individual consciously recognizes this or not. In the case of children, the change is often unconscious. But even among adults, we constantly (and unthinkingly) reward behavior in others that we like and punish those we dislike. And we adjust our own behavior in response to the rewards and punishments meted out by others.

If we want to deter crime, then, we can do so effectively by viewing it as an educational problem that requires cultivation of the proper habits, ones which are pro-social and lead to fuller self-development of individual, i.e., more freedom in a positive sense.

A multipronged approach is appropriate here. Early interventions are the most effective (it's easy to extinguish habits if they don't have time to become entrenched), so we ought both to apply punishments appropriately to children (both misbehaving schoolchildren and juvenile offenders outside of school) and to young adults who are first time offenders.

More certain, swifter, more severe punishments may pose a threat to negative rights, but they promise to increase our freedom in other ways (as Cicero points out, "we are servants of the law in order that we might be free"; this is simply the meaning of autonomy, giving oneself a law).

There's a lot more to be said about this, but hopefully you're beginning to see where I'm going with this. Having sympathy with criminals who had difficult lives is not incompatible with punishing them, even harshly. It may be possible to break some of the bad habits they acquired, which is of benefit to everyone.

This still leaves open problems about racism, abuses of power, and other potential systemic problems. But dealing with these problems does not require acting more leniently toward criminals. Consider one situation, which I know will rub your intuitions the wrong way.

Let's say, for instance, that a punishment is devised which involves regularly administering electric shocks to prisoners over the duration of their sentence. Assume that the punishment is extremely painful, but does not pose a significant threat to physical or psychological health (this is a big assumption, I know, but entertain it for the sake of argument). Now, presumably such an aversive punishment would not require the same amount of time to be effective as would doing time in some sort of plush minimum security prison. Thus, even if there are individuals wrongly accused and convicted, they would lose less time from their lives in undergoing this penalty. In cases where convictions were just, it would cost the state less, reduce the burgeoning prison population, and do more good for the individuals involved.

There are some serious problems with this argument, to be sure, but I'm just trying to make the case for the rationality and appropriate sentiment of an entirely different way of thinking about crime. I'm advocating a more balanced approach to handling criminal justice, which requires rethinking a lot of our common assumptions about behavior and punishment. Please, offer feedback as you see fit.


Steven said...

Interesting post. Josh has met many cops, and I think has a diferent view of the cops that he has encountered than the ones I have, so it will be interesting to here him weigh in on that front.

I happen to be intrigued by the non-interference-freedom dynamic. Perhaps not surprisingly, I recommend a look at "What is Freedom?" from Hannah Arendt's "Between Past and Future". One of the things Arendt does, in this may be useful for the judgment of criminal actions, is that she attempts to sever the link between freedom and will and claims that it was a mistake to ever associate the two.

I think that Arendt is going to say (not that she's necessarily who we need to ask) that we punish people for breaking the law because they are the promises that undergird the public, the space that makes living worthwhile lives possible. Perhpas this way we can better se[erate judging the people who have violated the law from the actual actions o violating the law. I think there is a large body of literature that would suggest that the peple at Abu Gharib knew what they were doing was wrong, would have liked to have resisted it, but were simply incapable of acting on their values. I'm not sure that means they shouldn't be punished anyway. but it certainly adds lots of different dimensions to the problem, as I think you rightly point out.

Jeff said...

Dom, you make some good points here about the necessity of interference in education and the limit of Mill's principle of non-interference. Good educators know that development involves a blend of liberty and discipline that is appropriate to the child. I'm not sure there is much disagreement here, however.

The disagreement is over the form of discipline (and liberty) and the degree to which they are blended. The question about the right measure of discipline and liberty is aporetic to speculative reason--it is a question that must be decided in experience by responsible and experienced people--and we must devise educational institutions that provide for the possibility of this decision. So, I would agree that corporal punishment should not necessarily be firmly outlawed, as there may be situations in which it might be appropriate.

However, because of the fact that social conditions change, we should also be open to experimentation in education so that we are able to educate citizens who are prepared to live in a world in which normative standards and the appropriate response to a violation of the norms changes. Along these lines, I would say that autonomy is certainly giving one's self a law, but I would emphasize the activity of giving the law at least as much as living according to the law. This emphasis would allow for the thought that freedom consists just as much in adaptation of law to experience as in the adaptation of experience to law.

Insofar as the conservative approach is looked at as experimental and hypothetical instead of as the truth about the proper way to educate, I'd agree that perhaps we have abandoned too quickly some of our educational practices. There is a moment in nostalgia that contains a critical edge. My fear, however, is that the nostalgia for these lost practices is nostalgia for a past that looks much better in the rear-view mirror than, perhaps, it ever was.

specter_of_spinoza said...

(Steven, your comment got posted twice for some reason; I deleted the second one.)

Jeff, I just have one point to comment on; otherwise I agree with what you say.

It's interesting that you bring up nostalgia, because it's an important sentiment that I did not take care to articulate (largely because I almost never experience it myself).

Nevertheless, I don't see the sorts of experiments in education/punishment that I'm proposing as being motivated by a desire to return to past practices (although I do make reference to them above).

Rather, it is something much more experimental: we can draw on the past as a resource for hypotheses, but ultimately it's a question of finding methods that work without significant undesirable side effects. Unintended consequences to avoid would include here damage to physical or emotional health, as well as negative effects on those who inflict the punishment.

For instance, what was done at Abu Ghraib is not bad simply because individuals were tortured (although this is itself despicable, especially since so many were unjustly detained), but also because it fostered sadistic impulses in the prison's military guards.

Side effects aside, let me return to what I intend in referring to methods that "work." By working, I mean more than just efficacy at changing behavior--although this is central.

As you rightly point out, there are other dynamic and developing factors in our culture that must be taken into account. Not all methods of discipline will be appropriate within a specific setting.

So, overall, I think we largely agree on this; here, I'm just trying to make my position a little more clear.

anotherpanacea said...

As I make clear over at my blog, I'm worried about infantalizing criminals. If they truly were children, it's not a matter of scaling the 'slap on the wrist' so as to be effective on larger mammals. But adult criminals have already cemented their habits and constituted their characters: rehabilitation isn't really a viable goal. We can only hope to contain and control.

anotherpanacea said...

err.. it -would- be a matter of really hard 'slaps' if adults hoodlums were just big kids. but they're not. sorry for the misprint.

Chris Parsons said...

I think that you're mischaracterizing liberal thinkers. The issue isn't that they are naturally opposed to authority figures (unless we're talking about libertarians or other extreme groups). Rather, liberals are concerned about the democratic divide that often opens between authoritarian figures and the people that they stand above. Instead of characterizing liberals as anti-establishment, they should be characterized as desiring a system of governance that is responsive and accountable to all citizens, rather than particular minorities that happen to agree with the political system that are in power. Politics should not be hijacked by any particularly extreme political branch. Both Conservative and Liberal thinkers offer interesting and insightful dialogue, but rather than feel as though one is right and the other is wrong it is important to teach citizens, from a young age, to critically analyze any political position they are presented with so that they can individually recognize aspects of the extreme position that they favour and others that they do not. Essentially, education should teach students to be critical thinkers, and then students should be allowed to apply their criticism to either Liberal or Conservative thoughts (though hopefully they will be critical of both groups and synthesize original thoughts and positions).

Rather than establishing a false dichotomy between liberals and conservatives, where everyone is either liberal or conservative, what is important to do is identify the silent middle and find a way to get them involved in politics. Once the moderate citizens are genuinely involved in politics I think that the American political landscape will change dramatically.

specter_of_spinoza said...

Chris, I agree with you. The point of this post is not to suggest that there are only 2 groups of people, liberals and conservatives, that are characterized in such and such ways. This is why I put in the parenthetical paragraph with the "N.B."

The point of this post was not to say anything about particular thinkers, who of course take more nuanced views on these matters, but rather to sketch what I take to be some of the sentiments that undergird the "standard" liberal and conservative attitudes to issues in criminal justice.

The reason I do this is to try to bring to the fore why certain things seem "obvious" to some people but not to others. Many of us are guided in our opinions by certain intuitions, tendencies to sympathize with some people rather than others, and I think that the reasons that support our positions often come after the fact. For instance, if I have trouble relating to the plight of poor African Americans, would you expect me to be all that concerned about the racism in the criminal justice system?

I was half-heartedly following the recent Italian elections and I was struck by the fact that they had 84% turnout. Could you imagine such a thing here? We're lucky if we reach half that.

But honestly, I haven't any idea about how to get more people interested in politics. Maybe if we had more than 2 viable parties, or public financing for campaigns, or some sort of national crisis which actually directly affected individuals.

As it stands, the people who do participate often vote for the wrong reasons. They do it out of self-interest, or who their preacher tells them to vote for, or who looks more presidential, or who they'd rather have a beer with, or who comes from the party they've always voted for, etc., etc. What's the point of more people voting if they don't do it with enough information or sufficient reflection?

Chris Parsons said...

But even in adding the "N.B" you break down your analysis through the two classical modes of thought - you "generalize" to maintain the current stereotype. Don't get me wrong, I did appreciate the aim of your post, but what I'm trying to point to is that the two "sides" and their commonly purported arguments fail to account for the larger body of thought on the matter. I would wager that many Americans hold aspects of either the "Liberal" or "Conservative" stances of justice in their own individual accounts of justice and the justice system. The issue, as you rightly point out, is that people often fail to realize the logical implications of their views, or why they hold them in the first place. Most citizens hold surprising contradictory accounts of justice, and steadfastly hold to them without any modes of validating them save by appealing to the dominant extreme discourses on justice. This personal ignorance is something that is constantly supported by the major American news networks, where there is typically a slant towards either a Conservative or less Conservative point of view, and these media outlooks are often used as appeals to authority to back up citizens' particular stances towards justice.

You've drawn on Mill some, and it's important if you're going to talk about Mills and education to recall that he was against a widespread state-governed education system because it could be used to impose particular conceptions of the Good Life on students. While this is one of many aspects of Mills' thought that I find questionable, what is important is that he saw the need to train students in critical thought so that they could develop their own stances towards politics, theology, economic, et cetera. I genuinely believe that some kind of education reform, in combination with a series of political reforms, could leave the U.S. as a more free, openminded, peaceful nation that was less willing to engage in chronic terrorist actions against the people of the world. Of course, being a non-American citizen, I have a lot to gain from the US learning how to "play nice" with other countries in the world :P

specter_of_spinoza said...


I see your point. I recently came across an interesting blog post that was arguing for a different understanding of the US two party system that doesn't make it seem so bad.

I think I may like to post on this more extensively later, but the gist of the piece is that each party is really a coalition of many parties that vary from region to region. This is why a Texas Democrat is very different from a Massachussetts Democrat, or a California Republican from a South Dakota Republican.

I have to say, I was quite intrigued by the piece because it seems right in many ways. But, above all, it was a way of thinking about the two party system that made it seem much less pernicious. Contrast this with, for instance, the Italian elections in which you have countless numbers of parties, but in the end they form two coalitions anyway. Is the difference really so great between Italy and us?

However, there's something about the utter divisiveness of US politics today that I don't think this model accounts for. It seems, at least for Republicans, party has been given more loyalty than country, and it has resulted in many a clusterfuck. It seems like the pressure to tow the party line is so great, that there's no room at all for accountability. (It's a shame that the Democrats can't muster such solidarity at a time like now when it's really necessary.)

So, in any case, I stand by my assertion that the generalizations are useful, especially since we do have only 2 viable political parties that may overlap but which do have some significant differences. At the same time, there's a lot of diversity and many people who fall into neither category easily.

Believe me, this is clear to me, as I count myself among this number. My views are often to the left, but the left itself is replete with clashes among liberalism, socialism, feminism, pluralism, postmodernism, multiculturalism, and much that cannot be neatly grouped under an ism. At the same time, I do tend rightward on some issues (education, especially, maybe criminal justice) and then there are a number of views I don't know how to classify (e.g., my interest in transhumanism and genetic enhancement as social policy).

One last point on education. I think you're right that we should teach students to think critically and to be respectful toward views they disagree with. Nevertheless, this in itself embodies certain substantive values of liberal democracy. In matters of education, I start to lean toward civic republicanism, and think that the formation of democratic character is a vital function of public education.

Unfortunately, the tendency has been to diminish this aspect of education, and to try to attain a false standard of neutrality which, in effect, just reinforces the values of consumer and popular culture and mass media. And, to be frank, these values suck. So, yes, public education could use a serious overhaul, but I still am not very optimistic on this front (it requires the kinds of large scale cultural changes that are nearly impossible to create willfully).