Wednesday, September 27, 2006

Jane Galt is Right

I may disagree with Jane Galt about controversial topics like taxes and income distribution, but when it comes to basic issues like public whipping, we’re in full agreement:
…deterrence and retribution are legitimate questions of justice--but I also think that jail is lousy, immoral, and highly inefficient way to achieve them.

Lousy because jail makes the criminals cost us money. Yes, courts cost money . . . but what costs money is the troublesome process of sorting the innocent from the guilty. We're spending money on the blameless, not the perpetrators. Once they're convicted, we know (as well as frail humans can) that they're guilty. Why should we spend money to punish them, when they could be making money, or hey, just entertainment, for the society they've wronged? Fastow's skills may not be much, but stick an ankle bracelet on him and set him to painting overpasses or something.

Inefficient because criminals are very bad discounters of time, or they wouldn't be criminals. Expensive, long prison terms aren't very effective deterrants. Optimal punishments are short, extremely harsh, and immediate.

Immoral because the great tragedy of human life is the finiteness of time; I'm not sure we ever have a right to take away someone else's pitifully few moments simply to punish them. Locking people up because they are a danger to others is a necessary evil; locking them up because we can't think of anything else to do to them is not. Morally, I should think a public whipping post vastly preferable--and more effective--than a one-year jail term.

My readers, particularly my more sensitive liberal ones, are even now recoiling in horror at my barbaric suggestion. But we all know that in fact the real punishment offered by prison is that meted out by other prisoners--that for many or most people, a prison sentence is a long and barbaric series of beatings and rapes. We know that this is true; we do almost nothing to prevent it; and we send people there anyway. Indeed, this is the aspect of prison--not the incarceration away from families, friends, and good takeout--with which cops threaten suspects. I should think a clean, quick beating from a government official would be more to anyone's taste--except the of course the animals who rule the prison dominance hierarchy.

Tucking criminals off in prison simply allows us to pretend to ourselves that we are doing something not-so-bad, when what we really intend is full-blown evil. If jail really were merely a dull spell of menial service jobs and mediocre food, I suspect many Americans would think it wholly inadequate to the demands of justice.
Yes. I made the same suggestion about 20 years ago, for essentially the same reasons. Suffice it to say, the suggestion was not well received by my lunchmates. (“Wouldn’t the state be liable for welts?”)

But think about it. Our current system essentially outsources punishment the same way the CIA outsources torture. (“We’re not being inhumane. The inmates promised not to rape anybody.”) And the worst criminals end up getting the least punishment, because the worst criminals are exactly the ones to whom the punishment function is outsourced.

If I have come to have reservations about public whipping, it is only because I have become more of a fascist over the past 20 years. As a utilitarian, I tend not to buy into the whole concept of “justice.” The purpose of prisons, as I see it, is to prevent crime. The best way to prevent crime (so the empirical evidence indicates) is to put people in jail before they commit crimes. Unfortunately, the justice advocates generally object, because they say it’s unjust to punish people who haven’t yet committed crimes, and of course there is also the practical problem that we can’t predict with much accuracy who is going to commit a crime. But when someone does commit a crime, it provides both (1) a fairly good predictor of future criminality, and (2) a good excuse to get around these silly “justice” concerns. So there is a good case, it seems to me, for putting criminals in jail.

Nonetheless, whipping would be cheaper, and it might provide good entertainment for some people. We’d have to weigh the costs and benefits. And for white-collar criminals, who are unlikely to have criminal opportunities in the future, the case for whipping over prison time is pretty much a slam dunk. OK, Mr. Fastow!


UPDATE: Chris Dillow made the same suggestion in June (as he notes in the comments here). Interestingly, he doesn’t make the argument (our trump card, as I see it) that prison life is already at least as brutal as state-inflicted corporal punishment. Perhaps that’s not so true in the UK. If we have 3 bloggers on board already, perhaps we should start a club, analogous to Greg Mankiw’s “Pigou Club”. Call it “the Corporal Punishment Club”? But that sounds slightly perverted. How about “the Effective Deterrence Club”?

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18 Comments:

Blogger Gabriel Mihalache said...

It depends on what you want... I think there's no legitimate reason to leave the victim out of the picture and turn the entire justice process into a mechanicistic crime against the state or crime against the rules kind of thinking (as it happens in the current system), or simply find ways to rationalize the instinct for violent vengeance (as you support).

I think that by commitming a crime, the criminal becomes indebted to the victim. A proper justice system would try to provide solutions based on the state of the victim, the state of the criminal and the "community standard" for these kinds of crimes.

The victim must be compensated for his/her loss. The criminal,first of all, should pay a large sum, or a percentage of his wealth or a monthly sum to the victim.

After that, a system of house arrest, ankle bracelets and such devides could ensure that the criminal will be restricted from certain activities, if that's suitable.

The insane could be handled by appropriate institutions.

Also, in the US and elsewhere, much of the prison population can be attributed to the victimless crimes of using or selling drugs, for the criminalization of which there's no basis whatsoever, and violent crimes associates with such black markets (drugs and prostitions attract violence much in the same way prohibition made alchool the trade of gangsters).

If we eliminate all of these victimless crimes, incriminated by busy-bodies legislating their morality, we're basically left with murder, rape, kidnapping, fraud and break of contract. The last 2 I think we can agree can be handled by private restitution as outlined above. If it were up to me I would extend the restitution to the victim or to the victim's family system to all crimes. (Except for the insane.)

Ex: for murder I would have all of the criminal's wealth transfered to the victim's family and force him to pay a percentage of his future earnings to the family.

I understand that the thirst for physical vengeance and the like are powerful impulses but I think we must consider all parties involved and try to go beyond moralistic physical punishments. But that's just me.

Wed Sep 27, 04:02:00 PM EDT  
Anonymous chris said...

Yup. This liberal Brit is with you and Jane here:
http://stumblingandmumbling.typepad.com/stumbling_and_mumbling/2006/06/for_corporal_pu.html
I guess this is one of those cases where economic logic is clear, but no-one likes economic logic.

Thu Sep 28, 06:49:00 AM EDT  
Blogger knzn said...

Gabriel, Moralism and vengeance have nothing to do with it. The whole objective, in my view, is to prevent crime, and deterrence by means of public punishments is one way to do it. (The mention of Fastow at the end is just a joke.) Compensation of victims is a good idea, but it isn’t a sufficient deterrent. For example, if the only punishment for stealing is to compensate the victim for what was stolen, then larceny becomes a profitable business, because you only pay if you get caught: as long as you have a chance of getting away with the crime, the ex ante expected return is positive. (I expect that, in many places, the chance of getting away with most crimes is quite high, so in order to be an effective deterrent, the punishment has to be quite disproportionate to the benefits of the crime.)

As for victimless crimes, I would deny the existence of such a thing. There are crimes of which the victim is also the perpetrator, and there are crimes to which the victim submits willingly. Few would object to this conception when the victim is a child or an insane person. My view is that everyone is childish and insane to some degree. I will consider arguments about the effectiveness (as set against the costs) of using the criminal justice system in this way, and I will consider arguments about the danger of state power, but I fundamentally reject the view that it is wrong in principle to protect people from themselves. (Obviously, my utilitarianism is very different from John Stuart Mill’s.) It seems to me the whole libertarian argument becomes inconsistent when you allow (as surely any sensible person has to allow) exceptions for children, lunatics, idiots, etc.: the supposed liberty becomes merely a tyranny of the mentally competent (and who is to decide who is mentally competent?).

(…just so I can avoid agreeing too much with Chris Dillow…)

Thu Sep 28, 08:59:00 AM EDT  
Blogger Gabriel Mihalache said...

I was not suggesting a 1:1 compensation. Obviously, in that case crime would be very profitable, with a 30% chance of being caught, let's say, even for the most risk-averse criminal.

My view of the legal system is that its main purpose should be to provide satisfactory resolution to conflicts regarding the "private space" of individuals (i.e. threats to life and property, not to police what goes on in people's pants or minds).

From this/my p.o.v. there's no invasion of your personal space if your neighboor smokes pot with his gay lover, regardless of how much you dislike it, or how much he dislikes your sobriety and heterosexuality.

Also, libertarianism, at least the serious strands, discusses in the context of first-order, "full" moral agents (sane adults, the vast majority of the population). Children and the insane are thought to be in the legitimate care of such moral agents.

Saying that most people are sometimes childish or crazy applies to legislators too. So it's a two-way street. Especially regarding the legislation of morality or risk-aversion.

Of course, there are huge issues at work here and we won't solve it in a few comments. But even if we were to agree, by assumption, with your goal of deterring crime, what's the shadow price? How much freedom are you willing to give up to reduce the number of yearly rapes by 1%?

Thu Sep 28, 10:50:00 AM EDT  
Blogger Gabriel Mihalache said...

This comment has been removed by a blog administrator.

Thu Sep 28, 11:06:00 AM EDT  
Blogger Gabriel Mihalache said...

P.S. In the interest of full disclosure, yes, the tyranny of the sane over the insane and of the adults over children sounds just about right.

Sane people for president! ;-)

Obviously, in any system there are going to be abuses of power (regardless of how you define them), which is precisely why concentrating a lot of power, over a a wide range of issues, seems like a bad idea to me.

Thu Sep 28, 11:10:00 AM EDT  
Anonymous Anonymous said...

Unlike knzn, calmo can't wait to agree.
Yes, surely corporal punishment needs to make a comeback. How much more of this "I take full responsibility for my actions." crappola can we stand take from the likes of Ney, Lay, Delay...?
I say public corporal punishment for these guys and then for their lawyers.
Appeals to handled in the same manner with even more public more corporal punishment. Certainly successful appeals would mean the previous judges get whipped.
Let's get down to business and make folks pay attention before incarceration becomes the only growth industry in the country!!

Thu Sep 28, 03:39:00 PM EDT  
Blogger David Langley said...

If a young offender comes from a good home then corporal punishment may well work. If he comes from a bad home then he must be sent to a refomatory.

Thu Sep 28, 06:41:00 PM EDT  
Anonymous Bruce Wilder said...

Prisons are over-used, and under-funded and badly administered.

Technological progress is making it much, much cheaper to monitor many public activities, as well as to use ankle bracelets and the like to monitor the movements and activities of individuals.

Innovation in both policing and punishment would seem possible, based on technological advance alone.

There's no reason to have huge fines for speeding on the freeway, when it is technologically possible to catch 90+% of those who speed.

The white collar criminal and the powerful person criminal is still going to be a problem for the criminal justice system. Ken Lay was allowed to vacation, while the judge looked up his sentence in the sentencing guidelines book. Abramoff has had his prison reporting date put off until after the next election. George W. Bush can have the Congress retroactively legalize his war crimes.

Speculation about corporal punishment seems macabre in the circumstances.

Fri Sep 29, 02:50:00 PM EDT  
Blogger Dr. Zeuss said...

Matthew Yglesias, the Ethical Werewolf, and I (not that anyone's ever heard of me) are also members of the EDC.

Sun Oct 01, 02:05:00 PM EDT  
Blogger reason said...

I'm all for effective and cost-effective deterrence, I'm just not convinced about the moral and psychological implications of corporal punishment. First there is effect of endorsing public violence, the decivilising effect on the public, the decivilising effect on the punisher, the problem of the innocent and unintended excessive injuries. And how about the problem of comparitive sentences? (Swept under the carpet as I see it).

Mind you I've often thought stocks might be an effective deterrent for vandals.

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