My Thoughts on Punishment

Thanks to everyone who posted a comment about punishment. I'm going to try to explain the difficulties I see with punishment, and then I'll go into what I think a good system of punishment might be. I should stipulate at the outset that I'm mostly talking about societal punishment of criminals. A couple of the comments on the last post were about punishing children, which I hadn't really thought about before, but is a really important arena in which to understand punishment as well. Since the comments on that topic came from actual mothers, I probably won't go into that topic very deeply here for fear of sounding like an idiot.

Difficulties with Punishment
1. Punishment is returning harm for harm. The old adage says that two wrongs don't make a right. On its face this argument is too simplistic, but it's one I've heard. After all, the physical acts themselves--both the criminal's and society's--are harms (say for example, robbing and confining a robber to prison). But the difference between the acts is at a metaphysical level. As we conceptualize it, the robber steals to enrich himself and takes what is not rightfully his (or hers). But confining the robber to prison is done to satisfy justice, deter future crime, rehabilitate the criminal (teach him/her to be a productive member of society), or incapacitate the criminal so that he/she can do no more harm.

But what about the robber who steals food to avoid starvation? What about criminals who were tricked or coerced into committing crime? We still punish these people, reasoning that such people make criminal errors in judgment. But if what justifies society in imposing a harm is its motive, then why can't many crimes be justified because of the criminals' good motives?

2. Problems with Retributivism- I think everyone has a sense of justice. And my heart, my gut, my moral sense--whatever you want to call it--tells me that wrongdoers deserve punishment simply because of their acts and without reference to any future outcome. As Immanuel Kant says, "Juridical punishment can never be administered merely as a means of promoting another good either with regard to the criminal himself or to civil society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another...He must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow-citizens. The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment, or even from the due measure of it, according to the Pharisaic maxim: 'it is better that one man should die than that the whole people should perish.' For if justice and righteousness perish, human life would no longer have any value in the world."

Now, I don't fully agree with Kant here, and that's the trouble: Kant's view is pure retributivism. As he says, retributive punishment is punishment because of guilt, and only because of guilt. When asked "Why do we punish the criminal?", the retributivist replies "Because he is guilty." But I don't believe that guilt is the only purpose of punishment. After all, Kant's "Pharisaic maxim" is actually divine reasoning: "it is better that one man should perish than that a nation should dwindle and perish in unbelief" (1 Ne. 4:13).

3. Problems with Utilitarianism- in their pure form, utilitarian justifications for punishment don't work either. Utilitarians hold that punishment can have three purposes, all of which are net positive consequences. First, punishment can serve to deter future crime, both by the criminal punished and by others who would otherwise commit the same crime. Second, punishment can rehabilitate the criminal, helping him/her become a productive member of society. Rehabilitation also serves to deter any future crime the rehabilitated would have committed. Third, punishment can incapacitate the criminal, keeping him/her from committing any future crime.

Theoretically, these are good ideas. But do they work practically? America's efforts at rehabilitation (it was a prominent theory in the 70's) proved costly and ineffective. Also, what if someone commits a crime, then realizes the wrongness of her actions and reforms herself so that she will never commit crime again, and all this without punishment. Then, according to rehabilitation theory, there would be no reason to punish the criminal. But that seems wrong because of the reasons for retributivism. Incapacitation only works if you keep the criminal in custody until he/she can no longer commit crime, which may be until either infirmity or death. Deterrence is more interesting, but leads to questions about what level of severity is necessary to effectively deter. The level of severity required to deter may exceed the level of severity that is proportional to the crime committed. Furthermore, there may be many crimes that no punishment will deter, such as crimes of passion or crimes committed by those who have nothing to lose. In many cases, such crimes are the most violent and most harmful of all. What good is punishment if it cannot deter those crimes?

Beginnings of a Theory
The feeling I've gotten in discussions on punishment in the past is that retributivism and utilitarianism are mutually exclusive, just as deontology and utilitarianism are alternative moral theories that cannot be easily combined. But I see good things in both of them, and I think parts of both are necessary to a good theory of punishment.

I'm tempted to say that utilitarian punishment is good for this life, and we should leave retributive punishment to God, who knows both who deserves punishment and how much punishment is deserved. But isn't there something dangerous about leaving one's moral sense unsatisfied?

There's a lot more to say about this, but I feel like I've said enough that some of you may have thoughts about it that will be valuable to hear before I write any more. Then again, you may all be bored with this by now and ready to move on to something else. But, as you can tell, I'm still not out of the woods on this one, and I would still appreciate your help.

Why Do We Punish?

I'm back! But I'm back with a purpose. I've been trying to figure out why we punish, both as a society and in a religious context. And I can't figure it out, so I need your input. Here's a brief note from my Criminal Law casebook describing the two basic theories:

"Broadly speaking, the justifications for punishment fall into two large categories, retributive and utilitarian. A retributivist claims that punishment is justified because people deserve it; a utilitarian believes that justification lies in the useful purposes that punishment serves. Retributive rationales are essentially backward looking, as they seek to justify punishment on the basis of the offender's behavior in the past. Utilitarian rationales are essentially forward looking, as they seek to justify punishment on the basis of the good consequences it is expected to produce in the future."

What do you think? How do we justify punishment?

Acadia

I thought I might show you all a few pictures from my recent travels. Please note: I will write nothing thoughtful or profound in this post.

There's really not too much to say about it other than that Acadia National Park is one of the most beautiful places I've ever seen. I can't imagine a place that I would find more beautiful.





Also, the people that I went with weren't all that normal.



Finally, there's picture of me, just to let you know that I'm still alive (cue music).

I Like Law School

And I didn't capitalize the first letter of every word in that title just because it's grammatically correct. This is a big deal.

I honestly hated the first two weeks of it. I was working desperately just to finish normal homework assignments, feeling lost in some classes, and watching as my classmates came up with great arguments I had trouble following. Every time I opened my mouth in class, I was wrong about something (except for that one time when I correctly informed the class that state courts can hear diversity cases and cases arising out of federal law. But I only knew that because I'd screwed up on a question about jurisdiction on my first day of Civil Procedure). I wasn't making friends among my classmates or even networking effectively. I missed the bus to school on my second day.

But then, last night, a wonderful thing happened. I had been working on my first legal memo all day (except for a couple hours of TF2 in which Adam burned lots and lots of bad guys), and I was skipping a major social event to do it. Once I was done with 10 hours of research for the paper, I couldn't work on it any more. So instead I picked up my books for class on Monday and started reading the assignments. And, at about 11:30 p.m., I finished my homework for Monday. As I sat on the couch, my eyes burning from having stared at a computer screen for too long, my head numb from thinking about attorney-client privilege, remedies for breach of contract, and canons of statutory interpretation, a weird feeling came over me. I was happy.

I liked the weird facts in the cases I had read. I liked figuring out why attorney-client privilege is important and why/how applying it to the facts of a case makes people more free. It's still not easy, but I like what I'm doing. And that's important to me.

Beware--Random Thoughts

In a feat of extraordinary extraordinariness, I finished my daily quota of schoolwork before midnight. And so, I thought, what to do with a few minutes of free time, late at night? "Blog" seemed like the sensible answer.

So I learned a couple of interesting things today. State courts have to have personal jurisdiction in order to serve complaints to potential defendants--or in English, if you don't live in a state but someone who does wants to sue you in that state, they can't unless you're also in the state. Interestingly enough, though, "in the state" means "anywhere in the state." That includes if you're in a plane flying over it. There was actually a case where this guy who wanted to sue someone in Arkansas got onto a plane with him (the plane was going to fly over Arkansas). As the plane was over Arkansas, the guy served notice on the person he wanted to sue, and the courts upheld it.

It feels bad when you're waiting for the bus, and it comes, and then just keeps going by without stopping for you.

Sometimes I cover up the fact that I don't know what to say to my classmates outside of class by studying. Instead of talking to people between classes, I just read and reread the cases.

They have free coffee on campus, and my classmates drink it all the time. I don't understand how you can want a hot drink in summer. Now, they do also have free hot water. So, come winter, I may bring hot chocolate powder or cider to drink during class. But will that be giving the appearance of evil?

My computer is pretty. I love seeing all the moving (and apparently non-moving) parts working together fluidly. I get a lasting sense of accomplishment from having built it. It's similar to the feeling I get reading a well-written paper that I wrote. Of course, the beauty here is different than a tree's beauty, a painting's beauty, etc. But there is a beauty to mechanism that too few people appreciate, I think. I should stop talking about this, though, aesthetics never was my strong point.

Of all the topics I like to talk about (religion, philosophy, sports, politics, law, games, writing), the thing I most love to hear is the good that other people think of each other. It feels so good to hear someone talk about how they love someone else, or to hear/see someone show kindness through words.

Creating Truth

Is truth created or discovered?

I eat a tomato, and I don't like it. "I don't like tomatoes" is a true proposition.
However, my mother continues to serve tomatoes, twice a week throughout my childhood. She forces me to eat them. Over time, I acquire a taste for tomatoes. Now, "I like tomatoes" is a true proposition, and "I don't like tomatoes" is not. Have I discovered the truth that I like tomatoes, or have I created it?

The Dark Knight, part II

As promised, here is a follow up post.

First, a response to the (im)poster, who says the following:

"Quoting Batman, 'Sometimes the truth isn't enough. Sometimes people deserve more than the truth.' The Church agrees with Batman here; it teaches that some things are more important than the truth:

Elder Packer has said, 'There is a temptation for the writer or the teacher of Church history to want to tell everything, whether it is worthy or faith promoting or not...Some things that are true are not very useful.' ("The Mantle is Far, Far Greater Than the Intellect")

I gather from this statement that the truth is not always the ultimate reward for someone's faith. That's why the Church teaches 'faith-promoting' history as opposed to true history. I am not saying I agree with this, just that that's how it is."

My response:

It seems inaccurate to call what President Packer describes "more than the truth." Revealing truth "line upon line, precept upon precept" is not the same as lying, which is what Batman referred to when he spoke of "more than the truth." Consider two examples:

First, we teach kindergarten students that 1+1=2. All well and good, but the truth of the proposition "1+1=2" depends on what base number system you're using, as well as on certain postulates of linear algebra. Even that truth that seems most basic is only conditionally true.

Second, let's turn to that great source of wisdom: Return of the Jedi. In it, we have the following conversation:

Luke: Why didn't you tell me? You told me Vader betrayed and murdered my father.

Obi-Wan: Vader was seduced by the dark side of the force. He ceased to be Anakin Skywalker and became Darth Vader. When that happened, the good man who was your father was destroyed. So what I told you was true, from a certain point of view.

Luke: A certain point of view?

Obi-wan: Luke, you're going to find that many of the truths we cling to depend greatly on our own point of view.

Earlier, speaking with Yoda about the same thing (that Luke learned that Vader was his father), we have:

Yoda: Unexpected this is, and unfortunate.

Luke: Unfortunate that I know the truth?

Yoda: No! Unfortunate that you rushed to face him, that incomplete was your training, that not ready for the burden were you.

I remain convinced that to some degree, we have to choose to believe something before we can know anything. And I remain steadfast in the faith that, as the hymn says, "all now mysterious shall be bright at last."

This post also having gotten long, my final point will have to wait for part III.