Law and order (part 7)

It’s official: the series on justice systems is now the longest on this blog, even longer than the series on the fourth dimension. Today’s post will address the question that has been repeatedly reappearing throughout this series: how can a utilitarian justice system deter crime? Because a system based on “the greater good” (defined as reducing unhappiness and creating happiness) and on rehabilitation is not as painful as a revenge-based system, critics argue that utilitarian justice does not deter criminals in the first place. This argument needs answering, as it is appears to be a major flaw in utilitarian and ‘rehab’ justice systems.

The deterrence argument is certainly a substantial one, and there are several aspects of it that must be addressed. The argument can be summarized as follows: a justice system that involves inflicting physical pain on lawbreakers prevents crime from happening in the first place because people are afraid of the consequences; a utilitarian system does not inflict pain, and thus it does not deter crime very effectively. I see three distinct points here that must be discussed: (1) the fact that pain deters crime, (2) the fact that utilitarian systems are pain-free, and (3) that a utilitarian system (assuming it is without pain for the purpose of deterrence) does not deter crime.

First, let’s tackle the issue that pain is a deterrent to crime. Obviously this argument has some truth to it, as both simple logic and empirical evidence indicate. The idea of “improper action leads to consequences” is one that is embedded in our culture, and I am sure that the fear of prison or pain has driven away many a potential criminal. But note that the pain-as-deterrence method of social control is not always as advocates of the current system claim it is—repeat offenders are not exactly uncommon in America. Of course, this is not much of a substantial argument since no system is perfect. Overall, though, this part of the deterrence argument is correct: physical pain can prevent crime from happening, and it is a useful method of social control because of this. 

Second, let’s look at the nature of utilitarian justice systems: are they really as pain-free as I have made them out to be? Naturally they do not include and unnecessary pain or pain for the purpose of revenge, but, as our current system proves, pain (whether in the form of prison, fines, etc.) is a very effective method of rehabilitation. Though many ex-convicts immediate return to their criminal ways, many others are profoundly affected by their sentence and do not return to crime. Also, consider the Catholic private schools that existed about 30 or 40 years ago: these schools were mostly run by nuns, who did not shy away from corporal punishment. As we know, this was actually a very effective method of instilling discipline, regardless of the fact that the nuns did subscribe to the revenge-as-justice theory. A utilitarian justice system would not completely reject pain because of its educational ability—though the system would try to restrict the use of pain as much as possible, since it has been proven to be an effective method of rehabilitation it would not be absent from a utilitarian justice system. This significantly weakens the deterrence argument, because if pain is present in rehabilitation—or if there is the chance that it is involved in rehabilitation—this would act to deter crime just as the standard revenge-based justice system does. Also, note that this use of pain-as-education would still be morally justified according to utilitarianism because the purpose it preventing crimes in the future, which is clearly in the interest of “the greater good for the greatest number.”

Finally, let’s examine deterrence in utilitarian systems a bit more. Recall that the US’s current justice system uses indirect techniques—such as prison, fines, forced community service, parole, and so forth—to “punish” criminals. Because the Bill of Rights forbids “cruel or unusual punishment,” flogging and other more painful forms of punishment have been outlawed—but the more humane methods have remained, and because they are unpleasant they still serve the deter crime. But how does this relate to a utilitarian system? The key point to remember is how a person’s rehabilitation would be achieved. It would almost certainly involved isolation from society for some time, and, as I discussed in the paragraph above, it might even involve pain. Even if a system did not use the pain-as-education method, though, the fact that a person must be removed from society to be rehabilitated may be enough of a deterrent for some criminals. Also, remember that a person’s rehabilitation may take a long period of time, which makes it even more undesirable to be sentenced, even in a system that is based around minimizing pain.

The bottom line is this: the deterrence argument certainly has some truth to it, most of its claims denouncing utilitarian justice systems are false. Utilitarian systems are not necessarily as pain-free as they might seem initially, and they can deter crime just as much as revenge-based systems. 

Again, this series may or may not continue tomorrow, depending on the news and on my mood.  

Law and order (part 6)

The series on justice systems is back with a vengeance (pun intended). Today I would like to discuss a justice system that combines a utilitarian rehabilitation system and Heinlein’s “Coventry” (exile) system, which I talked about a few months ago in “Law and order” parts 1-5.

This combined system is grounded in both libertarianism and utilitarianism, as it preserves personal responsibility and pragmatic rehabilitation. The reason for combining these seemingly contradictory ideologies is to avoid the practical problems that come from implementing either utilitarianism to an extreme or a form of libertarian justice (such as “rational anarchy”) to an extreme. (A malevolent government can easily manipulate the former, while that latter is ill-adapted to the modern world, since individuals can possess powerful weapons.) This combined system is in no way based on the traditional view of revenge as justice (an eye for an eye).

The system would function as follows: when a citizen breaks a law, he/she is brought before a court, in which the traditional courtroom procedure is used to determine if the accused caused measurable damage to other citizens (or their property) or restricted the freedom of other citizens. If the accused is found guilty, he/she is then given two options: (a) to work in a government labor camp or leave the country to any other country that will allow that person to immigrate, or (b) submit to psychiatric treatment, i.e., the “rehab” system. Should the person leave the country, they cannot re-enter without treatment. If the person chooses to work in a government labor camp, they can decide at any time to submit to treatment. Once a person’s treatment has begun, they cannot opt out of it without serious consequences, similar to joining the army during wartime.

The purpose of giving the person the choice to refuse treatment is to restrict the justice system and stop it from becoming a totalitarian utility monster. It prevents the state from conditioning individuals (because that is what the rehab system essentially is) without their consent, which ensures that the government cannot abuse this power to recondition political enemies or people the state finds undesirable. The reason the damage of a person’s crime must be assessed is also a libertarian theme, based on the idea that an action is not a crime if it harms no one. This, too, restricts the power of government in the social sphere and is a deterrent to fascism.

Of course, there are many practical problems with such a system, especially if a country’s borders are insecure. The combined system also suffers from some of the problems that the rehab system does: there is no assurance that the treatment will work, and there is less of a deterrent to crime than in a traditional system if the treatment is not painful. But overall I believe it is far more ideal than a traditional justice system, especially because it has safeguards that prevent the system from being used for totalitarian ends.

Tomorrow this series may or may not continue, depending on my mood and on what is going on in the world.