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.