Punishment Isn’t About Crime

June 10, 2016
Posted by Jay Livingston


Robin Hanson has a list of statements (here) that summarize his contrarian view. These include, among many others

Charity isn’t about Helping Church isn’t about God Medicine isn’t about Health Consulting isn’t about Advice School isn’t about Learning

The furor over the sentence given to the Stanford swimmer-rapist Brock Turner shows that we should add one more to the list.

Punishment isn’t about crime.

Criminologists have spent a lot of time trying to figure out the effect of punishment on crime. Does the death penalty reduce murder rates, and if so by how much? Or more generally, do harsher punishments reduce the crimes they apply to? Does rehabilitation work – or more specifically, which kinds of programs work best? Does taking criminals off the streets reduce overall amounts of crime?

These functions of punishment go under the names of general deterrence, specific deterrence, incapacitation, and rehabilitation. They raise researchable cause-effect questions.
Not so what is probably the most important function of punishment – justice. In crim textbooks (including mine) it goes under the heading of “retribution” or “just deserts.” But basically it’s vengeance. And unlike the other rationales, it is concerned with punishment’s effects not on the behavior criminals but on the feelings of good and righteous citizens. The idea of retribution is that we want punishment for bad guys because it makes us feel better to see them suffer. If the bad person does not suffer enough, the good people feel dissatisfied, even angry, and they call for harsher punishment.

Usually, they cloak this impulse under the more rational principles like deterrence, but let’s be real. Do any of the people insisting that Brock Turner be given a longer sentence think that if he is released after only a few months he will commit more rapes? Or that the short sentence will encourage other fratboys to commit rape, as though horny, drunken 20-year old will pause to think, “Hey, it’ll only be 6 months in the slammer. Now if it were a few years . . . .” ? 

Often, this deterrence idea marches under the banner of “sending a message.” A harsh sentence “sends the message” that this behavior will not be tolerated. The cliche slap-on-the-wrist sentence sends the opposite message. But if the intended targets of these messages, potential criminals, rarely receive the messages. That’s especially true for those whose crimes are unplanned and opportunistic. Instead, the people who respond to the message are the same people who wanted it sent. And they respond according to whether the message satisfies their desire for vengeance, or as they would call it, justice.

Some social scientists argue that this desire is part of human nature and that evolution has embedded it in our genes. Even babies, some experiments show, get upset when evildoing (usually by puppets) goes unpunished. But even if the desire is universal, the punishments that arise from it vary widely. In some countries, the six-month sentence would be within the normal range. That is, it would satisfy the desire for justice. In other places, anything less than death would be too lenient.

When vengeance as the basis for policy outweighs the more rational factors like deterrence, incapacitation, and rehabilitation, you get juggernauts like the war on drugs, which was mostly vengeance under a veneer of deterrence. In the initial response to the perceived drug problem, politicians enacted harsher sentences to send a message to drug users and dealers. When these new laws failed to bring the promised reduction in crime, lawmakers might have paused to rethink their assumptions. Instead, they fell all over themselves proposing even harsher sentences, locking up more people for longer periods of time.

Doing more of the same thing and expecting a different result might be a definition of insanity. But in the war on drugs, it functioned like an addiction – addiction to punishment. When a mild amount didn’t have the desired effect, lawmakers (with public approval) raised the dose. We then became habituated to that new level, we thought that only an even higher dose would bring relief. We were punishment junkies, spending more and more of our money on something that brought little relief, all the while raising our level of tolerance. We wound up with “normal” sentences that people in many other Western countries considered medieval.

In the swimmer-rapist case, the people outraged by the six-month sentence are not campaigning for generally harsher sentences for rape. They are, however, demanding the equivalent of a policy change – replacing the judge. But the motive is the same – justice (or vengeance). If we can’t punish the rapist, then let’s try to punish the judge and replace him with someone who gives out sentences that make us feel better. Of course, only the self-delusional will think that punishing the rapist or the judge will have any effect on fratboy date-rape.

One final note: I am not saying that those who want a longer sentence for Turner are wrong. I’m not saying they’re right. What I am saying is that whoever enters that argument on either side should be clear as to the bases of their position. They should also recognize that the issue is one of morals or values, so unlike questions of deterrence, it cannot be resolved with facts.