So last week (actually, it’s getting closer to two weeks ago now) I wrote the first half of a book review of the book In Defense of Flogging by Peter Moskos. I concluded by asking whether punishing criminals for the sake of punishment was the best that we could do as a society. I’ll look into answering this question now.
As a society, we don’t really spend a lot of time actually thinking about free will. Do we have free will? Are we completely responsible for our choices, or are our decisions caused by other factors, or is it a combination of the two? The concept of free will has never been scientifically explained. If you accept that scientific assumption that everything is caused, it would follow that your thoughts are caused by something, possibly something external, possibly other thoughts, possibly the way your brain is put together, possibly some combination of all those. If you were able to follow all of the causal chains back far enough, you would end up with a set of causes all of which are external to you. Therefore, your thoughts are caused by external factors and there is no such thing as free will. (I have seen arguments that suggest that suggest that quantum effects in the brain produce stuff like consciousness and free will. I feel that these are based on a poor understanding of quantum mechanics. Quantum fluctuations produce random behaviour, not rational, conscious behaviour). So, if rational thought would suggest that we don’t have free will, why do we continue to implicitly assume that we do?
In the essay “Free Will, Determinism, and Self-Control” in The Philosophical Legacy of Behaviorism, Bruce Waller suggests that one reason is so that we can hold others morally responsible for their actions; they deserve the punishment that they get. I’ll look at a non-criminal example from the essay, that of a woman who doesn’t leave her abusive husband. A psychologist might see her refusal to leave as being a learned behaviour (“learned helplessness”), which she learned in childhood as a result of inescapable suffering. We can’t blame someone for having a traumatic childhood, so how can we blame them in this scenario? Yet we often do blame the victim, seeing the woman as being “weak” and so deserving to continue living a miserable existence. This also serves as an handy excuse to avoid trying to understand the victim and the causes of her behaviour better, which in turn makes it easier to avoid helping her and to ignore any role we, either individually or as a member of society, might have in her predicament.
One can look at criminal behaviour in the same way. The antisocial tendencies that cause criminal behaviour can often be traced to a defective upbringing (in some cases, defective genes may also play a role), which is something that the criminal couldn’t control. So why do we insist that we should lock the criminal up and throw away the key?
This belief probably comes from our caveman heritage. We are hard-wired to be outraged when someone does something wrong and satisfied when that wrong is punished. Back when humans were “cavemen”, this was probably a trait that helped us to survive. A readable summary of this can be found in the book Risk: The Science and Politics of Fear by Dan Gardner.
In the days of hunting and gathering, when someone did something that hurt the tribe or its members, there wasn’t any good way of trying to rehabilitate him, nor was there any good way of segregating him from the rest of the tribe if he didn’t want to be segregated. The only way of hoping to achieve these aims was to punish the person. Perhaps for serious infractions the perpetrator would be killed, thus ensuring that he wouldn’t commit any more crimes. Other punishments for less serious infractions might in some cases discourage future antisocial behaviour (they might not in other cases, but there isn’t any better alternative). One could also hope that the punishment would serve as a deterrent for the other members of the tribe. Nowadays, one would hope that we could put systems in place that would allow us to do better than cavemen.
Furthermore, claiming that people are “responsible” for their criminal behaviour allows us to ignore any role that we might have in creating this behaviour, so that we don’t have to think about how we, either individually or collectively, might be responsible for creating criminals, perhaps through our toleration of poverty and other social ills, unwillingness to help those in need, lack of moral standards, lack of support for incompetent parents, indifference or even cruelty toward those that we meet each day, lack of respect for the law in our own day-to-day behaviour, etc.
I think that, if we want to advance as a species, we need to leave these caveman notions behind. Hard as it will be, we need to suppress our instinct calling for wrongdoers to be punished. Instead of dragging criminals down, we need to make people’s lives better. This can be done by working to prevent crime in the first place, to rehabilitate the criminal, and to replace punishment by restitution—having the criminal try to fix what he broke as far as possible. “Don’t get mad, get even”.
So, I feel that Moskos’ premise in In Defence of Flogging, while not without merit, is flawed. Instead of finding different ways to punish criminals, we should look at removing punishment from the criminal justice system, without neglecting deterrence, incapacitation, rehabilitation, and restitution. Corporal punishment doesn’t accomplish any of the last four aims, so it doesn’t have a part in my view of the corrections system of the future.
In order to serve the purposes of incapacitation and/or deterrence, prison sentences may still be required in some cases. However, there still is the problem of 2.3 million people currently in prison in the United States. Reducing sentences only to what is required to deter or incapacitate, while substituting activities aimed at rehabilitation and restitution for the rest of the sentence may help. Perhaps a technological solution could help as well. We already have various monitoring devices often worn by those under house arrest and/or probation. We might want to look into smarter devices that play a more active role in restricting the actions of the wearer. Perhaps a device could be created that causes physical pain when the wearer is doing something they shouldn’t. Perhaps a device could be created that physically restricts the wearer in various ways in various situations in order to force compliance with terms of sentencing. Perhaps even some sort of chip could be implanted in someone’s brain (kind of like Spike in Buffy the Vampire Slayer) that would prevent them from doing various off-limits activities. The big question is: Will people think of these devices as immoral, either because they torture wearers or invade their brains, or would it be seen as a humane alternative to prison sentences? I don’t know. This is something that’s worthwhile to start talking about, though.
Hopefully these measures will save money. Some of the savings should be earmarked for crime prevention, but in a smart way. Too often we try to prevent crimes in ways that don’t really prevent crime. Much the “war on drugs” involves arresting drug dealers, but as soon as the authorities do that, someone else sets up shop and we’re back to square one again. It would be much more effective to put money toward treatment programmes for addicts and make it very easy for addicts to get treatment. This would likely prevent a lot of thefts, prostitution, and other crimes that addicts commit to get money. We could undertake similar “smart” approaches with other crimes.
With luck, a combination of all these approaches would both significantly reduce crime and increase national productivity.