Monday, 13 April 2020

When the Punishment Does Not Fit the Crime

By Seth Stancroff 

Do many capitalist societies today impose relatively harsher punishments for crimes committed by individuals of low socioeconomic status? If so, how does this fact affect popular theories of just punishment?

It would seem that many of these theories (such as retribution, deterrence and rehabilitation) must fail when applied to these societies. That this really is the case can be illustrated with a simple example:
Two individuals commit the exact same crime in the same American city: they both crash into parked cars while driving under the influence of alcohol. Both of these crimes result in the exact same amount of damage, the levels of intoxication are the same between the two offenders, and this is the first offense committed by either person. 
However, one of these individuals is a high-powered businessman and the other is a middle-aged, relatively poor single woman with no living relatives and two young children. Both individuals are arrested and brought to the police station where they are put in jail with bail set at $5,000. The man immediately bails himself out and hires a team of experienced defense attorneys. 
The single mother, on the other hand, is too poor to post bail herself and knows no one who could help her. Because she is forced to sit in jail for the weeks preceding her trial, she loses both of her jobs which had been the only sources of income for her family. When the trials roll around, the man’s attorneys convince the judge and jury that he should not be held responsible for his action, and he is given only a fine. However, the publicly-appointed defense attorney for the woman, perhaps too over-worked to have been able to consider her case carefully, fails to offer any convincing defense on her behalf. She is sentenced to three years in prison.
I think it should be clear that in this case, the theory of retribution fails to offer a legitimate justification of punishment. Because the offenders in the story are given extremely different punishments for the same crime, at least one (or both) has been given a punishment that, morally speaking, breaks from the jus talionis, or “eye for an eye” principle and thus does not serve any kind of true retribution. In this case it is likely that both punishments would be considered morally inappropriate. One on hand, the woman in the example is punished before she is even found guilty of a crime by being forced to stay in jail as a result of her inability to post bail. On the other, the wealthy man is given a more lenient punishment only because of the resources to which he has access.

How about deterrence? Jeremy Bentham asserts that “General prevention ought to be the chief end of punishment, as it is its real justification.” Turning back to the example offered above, it becomes clear how Bentham’s deterrence model fails to justify punishments in capitalist societies in which punishments are functions of economic class. The man’s punishment in the hypothetical case would challenge Bentham’s idea that punishments should prevent future crimes from being committed because it would surely allow other wealthy people in the society to think that as long as they can hire expensive attorneys, they will be able to behave recklessly without much consequence. On the whole, a deterrence theory of punishment would not be able to explain how, for wealthier people who get relatively lenient punishment, those punishments have any deterring effects.

Finally, the rehabilitation theory maintains that punishment should include measures aimed at reforming offenders. That is, in giving punishments, societies should keep in mind the ways in which the punishments will allow offenders to change themselves or be changed so they can peacefully re-enter society. Plato conceives of punishment in such a way; he imagines that to suffer punishment is to suffer some good, and evading punishment is often a worse path to go down. Interestingly, it seems that when punishment practices are functions of class, wealthier people who can pay their way out of punishments are actually deprived of opportunities to reform. The man in the above example surely should have had a chance to think about the harms he caused through his crime, and would, for rehabilitation theorists, have been made better off had he had such opportunities.

All this paints a rather dismal picture of punishment and the attempts to morally justify it in the real world. But what would happen if certain measures were put in place in these capitalist societies that guarantee a fair system of punishment? For example, what if cash bail were determined in a manner proportional to the offender’s income (or simply abolished)? What if every defendant were required to use state-appointed attorneys, and what if implicit biases against poorer people were accounted for? It seems that if all these kinds of issues could truly be taken care of (and whether this is even possible is certainly up for debate), punishment would perhaps not exist as a function of economic class.

However, even if all this came to pass, it still would not mean that society’s response to crime would escape the influence of socioeconomic status. That is, even if the processes surrounding punishment were made completely just and equal, the social and economic inequalities that can lead individuals to commit crimes would still exist. This fact alone would still lead to sections of the population committing certain kinds of crimes in greater proportions than others, and being punished for it. For this reason, it seems that before punishment can truly become morally justifiable in capitalist societies, the social circumstances that lead individuals into confrontations with those institutions as well as the institutions surrounding punishment also have to be made just.


Unknown said...

Really paints a concrete picture of how theory plays out in reality. Thought-provoking indeed. Makes you wonder if "the social circumstances that lead individuals into confrontations with those institutions [the criminal justice system]" can be made just in a capitalist context. What would that look like? Is the default to all of these arguments overthrowing capitalism? Food for thought.

Keith said...

This is an important topic, Seth — arguably for every system of governance and economics, surely not just capitalism. To my mind, it calls for comprehensive criminal justice reform.

The world’s systems of justice are supposed to rest on fairness, equality, and ethics; reality, however, is often disturbingly different, with true justice often in short supply because of race, ethnicity, and the shallowness of defendants’ pockets. Notions of justice are typically packaged based on imperatives to which societies subscribe: a social contract, either codified or just implied, between government and citizens, involving rights, opportunities, obligations, and protections. This agreement encapsulates societal norms, drawn from culture, values, and history.

In this model of justice, purportedly criminal behaviour by individuals and institutions is judged on two levels: either intrinsically fair, equal, and moral within itself, apart from the behaviour’s consequences; and extrinsically fair, equal, and moral, measured by the particular consequences of the behaviour. As such, the choice of path to legal judgment matters. Although the ideal is a system of justice scrubbed of discrimination, the demonstrable fact is that matters like jury selection, quality of legal representation, sufficiency of evidence, a thumb on justice’s scale, and terms of punishment are skewed.

Martin Luther King’s famous words regarding justice still resonate, globally: “Injustice anywhere is a threat to justice everywhere.” The path to getting there will require top-to-bottom criminal justice reform — an arguably achievable, bite-sized challenge even in an atmosphere of systemic socioeconomic inequality, racism, ideological presuppositions, and other underlying social ills.

Seth Stancroff said...

Thanks for your comment, Keith. I agree with your idea that top-to-bottom criminal justice reform (as well as addressing systemic social injustices that exist outside the legal system) will be required to bring many "justice" systems actually in line with justice. It's an unfortunate reality.

Martin Cohen said...

In some countries bail IS set by consideration of the income of the 'accused'. Likewise, fines are set after the guilty ask for their limited means to be taken into account. Actual sentences, I think, are sometimes reduced if the offender offers specail circumstances, such as needing to look after a sick relative. Or being a police officer! (Seriously, judges take such things as proof of being normally a very fine, morally upright person. The point is, sentences are adjusted in the light of individual differences. Which I think is what Seth is arguing FOR. However, isn't it clear that soetimes we expect everyone who commits the ame crime to 'serve the same time'? And even with fines, we all know many illionaires who manage to cook their books so they pay no taxes. Doubtless they could have a smart lawyer achieve the same sort of thing with a court fine.

Martin Cohen said...

"Illionaires". I just invented that. By accident.

Seth Stancroff said...

Indeed, there are two sides to this; just as underprivileged groups are usually treated relatively harshly, those who are better-off actively use their positions of advantage to dodge punishment. This was not something I addressed much here, but it adds another layer to the ways in which classical theories of just punishment fail to account for many real-world injustices.

Thomas Scarborough said...

Thank you, Seth. This is a multi-faceted post, and one which conjures up many thoughts. On the surface of it yes, it seems obvious that this is true. Yet in practice it is not. Why?

First a rather perverse question. We ought, it is said, adjust our justice systems for equitable treatment of rich and poor. But supposing our justice systems are already equitable? Say that, in some sense we have not defined -- which is, other than economics -- we are making judgements which are in fact equitable. It could be possible. Or a thought which is like it. Given our assumptions, is it normal that we operate our justice systems as we do?

Now Jeremy Bentham says that 'general prevention' is the main idea. What then is prevention? I would suggest, on the basis of the widely held assumption that behaviour is controlled by mental models, that prevention is the development of mental models which forestall crime, or remove the need for the suppression of crime. One could say many things about that. I'll try something which is, perhaps, new.

Suppose that, in this sense of creating mental models, the old doctrine of 'an eye for an eye' is not retributive but restorative. If one (say) destroys someone's eye, and one's own eye is therefore destroyed, will one not come to develop a new mental model, on the basis of new experience? This is not to recommend such justice, but to say, perhaps the old idea of retributive justice was rehabilitative.

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