Crime and Punishment

Hi Moeller,

Good Lord, Jordan.

That's me! :-) And my view is far from arbitrary. It depends on scientific studies, particularly those focused on causation. You on the other hand would have us ignore causal idiosyncracies. You'd give all car thieves the same 5 years in jail, even if that punishment would fail to generally deter, and even if it would make the car thieves themselves more likely to commit future crime. To wax dramatic, that's not arbitrary; that's suicide!

Jordan

Post 61

Tuesday, November 29, 2005 - 2:44pm

And further, Moeller, you advocate a strain of selective punishment, too. You select based on type of crime, while I select based on type of criminal (i.e., or more precisely, on what the criminal responds to -- her incentives).

Jordan

(Edited by Jordan on 11/29, 2:46pm)

Post 62

Tuesday, November 29, 2005 - 2:51pm

In fact, I rather like the idea of selective punishment. In my usual deference to victims, I would like to see them decide the punishment. We could give them a menu that starts with the punishment of least severity for deterrence, on up with the ones that exceed that, ending with �Other____________.�

I�m looking for ways to make destroyers afraid of their victims�who�s with me? What better deterrence is there than the unknown? I heard recently that game theorists had proven conclusively that indeterminate retaliation is more effective than when the aggressor knows what the retaliation will be. And by such a preponderance that it is still more effective even when the known retaliation is far greater than the guessed or estimated, but unknown one. Ed Thompson could comment on this, as he�s into game theory.

Jon

Post 63

Tuesday, November 29, 2005 - 3:16pm

Jon,
"I�m looking for ways to make destroyers afraid of their victims�who�s with me?"

I'm with you on that point, though I don't consider it central.

Post 64

Tuesday, November 29, 2005 - 3:18pm

Anyone ever hear of a play called "The Joke and the Valley" ?

Post 65

Tuesday, November 29, 2005 - 3:38pm

Jordan writes:

It depends on scientific studies, particularly those focused on causation. You on the other hand would have us ignore causal idiosyncracies. You'd give all car thieves the same 5 years in jail

You're damn right I would ignore what you call "causal idiosyncracies". I don't use the law to lump people into "classes" based on race or class or sex or "culture" or anything else. I am not a collectivist, you see. There is nothing "scientific" about collectivism. Each individual is his/her own causal agent and the law applies equally across individuals. You are familiar with equality under the law, correct?

Secondly, I did not say deterrence does NOT play a role, I said it was "secondary". Of course, certain ways of punishing are aimed at deterrence, like increased sentencing for repeat offenders, which I agree with. But the primary is the criminal suffering the consequences of his actions, not any might-be actions committed against yet-to-be victims. And holding somebody responsible for their actions is anything but "suicide". Invoking arbitrariness into punishment and justifying it with such collectivist notions as "classes" based on "causal idiosyncracies"--now that's suicide!!!!

Regards,
Michael

(Edited by Michael Moeller on 11/29, 4:01pm)

Post 66

Tuesday, November 29, 2005 - 5:57pm

Moeller,

I am not a collectivist, you see.

Neither am I. That insinuation is nasty in forums like these, and unnecessary. My view is individualist in that it acknowledges particular differences among criminals, rather than ignoring each criminals individuality by prescribing one punishment to a group of different criminals based on their similar crime. My view treats similarly situated individuals similarly -- Artistotle's first principle of justice -- which upholds equality under the law, while you treat merely similarly situated crimes similarly, which I think misplaces where equality should apply.

Secondly, I did not say deterrence does NOT play a role, I said it was "secondary".

And in my post 13, you should see that I agree that deterrence is secondary. My primary purpose is restitution; yours is retribution. So far as I can tell, you haven't justified your view. See some of Dwyer's and my posts for details. I suspect you think you have justified your view, so saying you've failed to justify it must frustrate you. I don't mean to frustrate you, and I can understand if you aren't willing to go into further explanation. I'm just saying I'm honestly not seeing the justification.

And holding somebody responsible for their actions is anything but "suicide".

I think you missed my point. Let me see if I can make it clearer. Let's say you think 4 years in jail is the amount of time a first-time thief should be "held responsible" or "made to suffer" for his crime. After those 4 years, he's "paid his debt." Should we release him, even if he's still a threat or a greater threat than when he walked in? If you say yes, then you're a tried and true retributivist, and you're suicidal. If you say no, it's probably because you accept deterrence as a factor in punishing, which indeed you explicitly accepted in your last post. But if you adopt deterrence here, then you're stuck justifying it, just like I am and just like Dwyer is -- as a goal seperate from restitution and seperate from retribution. You're also stuck somewhat explaining how to implement deterrence. I'd be curious how you'd justify and implement deterrence without appealing to the premises you seem opposed to in my (and perhaps Dwyer's) view. I don't expect you to go into your justification and implementation of deterrence. I don't mean to be curt, but I'm not too interesting in hearing it because (a) this forum closes soon, and (b) we both are admist lovely law finals anyway and have better things to do with our time.

Jordan

(Edited by Jordan on 11/29, 5:59pm)

(Edited by Jordan on 11/29, 7:40pm)

Post 67

Wednesday, November 30, 2005 - 12:08am

Michael Moeller wsrote, "Sorry, but it is difficult for me to continue, mostly because I have exams in a week. But secondly, I am frustrated by what I think are obvious points."

I feel your frustration, Michael. ;-)

You continue, "As far as I can see, the only thing 'circular' are the hoops you are jumping through to make 'deterrence' the primary goal."

I'm not sure what you mean by "primary" here. I've already indicated that I don't think deterrence should supersede individual rights, which would presumably be violated by cruel and unusual punishment. But deterrence is, as far as I can see, the only justification for punishment that we have a right to administer. I'm sure you disagree with this, but I'm still not clear on your rationale for punishing rights-violators. I know it's not retribution, nor is it deterrence. So what is it? What do you hope to accomplish by punishing a rights-violator?

You write, "Also, I would suggest getting ahold of Robert Bidinotto's article on this topic, I think it is significantly better than Peikoff's tape."

Okay, perhaps you could direct me to a source. Better yet, perhaps you could summarize RB's position, since you are so impressed with it.

You continued, "Which brings me to another point, please recognize differences [between] consequentialism in law and consequences in action. Most definitely do NOT put AR or LP and the former category."

I never did.

You write, "If you have heard AR's tape on "Objective Law", you would see she most definitely rejects this. To be more specific, she speaks about the complete non-objectivity of "preventative laws", another favorite of the utilitarians (and it seems you as well)."

Interesting! I wonder what she means by "preventative laws." Not wanting to wait for the tape, although I am interested in hearing it, I did an online search, and this is what I found on the ARI website regarding preventive law. According to Gary Hull: "The FDA operates on the dictatorial premise of 'preventive law.' The agency assumes that pharmaceutical companies are guilty of poisoning the public until their innocence can be proved. Objective law, a cornerstone of the Bill of Rights, rests on the individual's right to be free of government coercion unless there is evidence that he has committed a crime; preventive law cavalierly violates that right by subjecting people to government force without any such evidence."

If this is what Ayn Rand means by "preventive law," then it has nothing whatever to do with our discussion. Frankly, I'm astonished that you don't recognize the difference between what Hull is saying and what I'm saying.

You write, "And NO, Bill, I am not putting you in the category with the other utilitarians, I am just pointing out what is down the road and that they, in fact, are more consistent. You are trying to salvage with an appeal to an individual right system, it can't be done when you take the focus off the individual actors."

Michael, you've said this before, and I still have no idea what you're talking about. What do you mean when you say that I "take the focus off the individual actors." If you explain anything to me, please explain this.

You write, "Let me try with a couple of last scenarios to see if this improves anything. Say, for instance, your best friend or your wife were coming out of a store and some thug came up to them, stabbed them in the neck, and took off with all their money. Now, if you knew that punishing him would have NO deterrent effect--it would not deter one criminal from committing one crime--would you punish him? Since there is no deterrent effect, do you see any reason to punish the criminal or would you let them continue to roam the streets like any other citizen?"

If punishing this person had no deterrent effect on him or on anyone else--which is a big "IF," to be sure--then I don't see any point in punishing him. What would be accomplished by it? Although I would certainly feel a strong desire to retaliate--to seek vengeance against him--that desire is not itself a sufficient justification for punishing him, which in any case should be a dispassionate process that is undertaken for the sake of a rational end or goal. What could that end or goal possibly be, if not protection or deterrence?

You continue, "Another mistake you make, very common to most utilitarians, is to treat criminals as the 'economic man' where they sit down and perform a cost/benefit analysis on committing this crime or that crime and weight it against the punishment. I hate to tell you this, Bill, but a 30-year sentence for petty theft will not necessarily turn a thief into a murderer."

No, but if the penalty for murder is also 30 years, then a 30-year sentence for petty theft could induce a petty thief to commit a murder in order to avoid being apprehended. What would he have to lose? Absolutely nothing. Since he would get 30-years in either case, why not commit the murder if it could lessen his chances of being identified and apprehended?

You continue, "You are working off of a faulty assumption that I do not think is supported by crime rate statistics. But it does bring me to a 2nd question: if it was proven that cutting off a hand did reduce theft crimes and there was NO increase in other more violent crimes, would you favor it? In other words, this heavier sentencing has a greater deterrent effect on that specific crime with no effects on other crimes, would you advocate it?

No, because I would classify it as cruel and unusual punishment, which would be tantamount to a rights violation. But I would say that it is unrealistic to think that cutting off a thief's hand would not increase other violent crimes. If I were a thief and knew that if I were apprehended my hand would be cut off, I would almost certainly be willing to commit a more serious crime in order to avoid that kind of mutilation.

You continue, "If not the cutting off of a hand, how about a 30-year sentence in prison under the same scenario (if you don't like the physical brutality of it, even though it fits the deterrence theory)?"

No, I wouldn't agree that a thief should get a 30-year sentence for petty theft, for the reasons already given. It could increase the likelihood of other more serious crimes. But your question is: would I advocate it if it didn't? No, because insofar as the punishment were excessive relative to the crime, it would again be tantamount to a rights violation.

You write, "Last question: how do you make a rape victim or murder victim "whole" again?"

I'm not sure about a rape victim, but it's obvious that you can't make a murder victim whole, because you can't bring him back to life, but why are you asking me that kind of question? When did I ever say that a rape or murder victim could be made whole? I think you may be confusing me with someone else.

You continue, "I want to repeat one thing I wrote to Jordan, I am not against 'restitution' per se. I think it is fine if a criminal works to pay some measure of damages as part of an overall punishment, but one that is based on incarceration."

Okay, fine. And you thought that I would disagree with this because...?

- Bill

Post 68

Wednesday, November 30, 2005 - 7:02am

Where are you guys going, if anywhere, when SOLO goes on hiatus?

Jordan

Post 69

Wednesday, November 30, 2005 - 8:10am

Bill writes:

No, I wouldn't agree that a thief should get a 30-year sentence for petty theft, for the reasons already given. It could increase the likelihood of other more serious crimes. But your question is: would I advocate it if it didn't? No, because insofar as the punishment were excessive relative to the crime, it would again be tantamount to a rights violation.

This is my point Bill, on what grounds can you say it is "excessive" or a "rights violation" if it accomplishes your primary goal of deterrence? When you say "relative to a crime", does that mean that you are justifying the punishment primarily based on the crime he committed and NOT the deterrent effects? That is to say, let the punishment fit the crime, not as a standard measured against how well it may keep other criminals (and the criminal himself) from performing certain actions in the future. Just take a good hard look at what Jordan wrote yesterday, that is precisely the type of punishment schemes that people come up with when they move forward with deterrence, i.e. arbitrary enforcement of the laws.

Bill writes

Michael, you've said this before, and I still have no idea what you're talking about. What do you mean when you say that I "take the focus off the individual actors." If you explain anything to me, please explain this.

That's the problem, Bill, I have explained it over and over again. You don't accept it, so what more can I do? You will just go ahead and ask for more explanation. To repeat what I said in the 1st paragraph above and in about 100 different ways, the justification is the rights violation of another individual, there is no "wider" justification that you keep demanding. Once you start demanding that it be based on deterrence, you move away from the conduct committed by the criminal and toward the future actions of might-be criminals, that's what I tried to get you to see with the above example. Yes, my position is "retributive", but not in the "traditional" Kantian sense. It is not serving some principle of "justice" detached from individual life, it is reflecting back the consequences of a violation of another's rights. Period. End of story.

And again, you try to salvage your position by saying that it is "excessive" and a "rights violation"? But why is it any of these if it DOES indeed provide greater deterrence and deterrence is the goal? You also ask what could be the "goal if not protection or deterrence"? Are you lumping protection and deterrence together now? Do these mean the same thing, Bill? Is protecting people from a criminal who has committed a crime (by incarcerating him) the same as doling out punishments according to their deterrent effect?

Bill writes:

this is what Ayn Rand means by "preventive law," then it has nothing whatever to do with our discussion. Frankly, I'm astonished that you don't recognize the difference between what Hull is saying and what I'm saying.

Bill you said in post #26:

So what's wrong with preventative laws (laws that prevent crime), so long as they don't violate individual rights?

Naturally, Bill, I thought you understood what was generally meant by "preventative laws". Your statement was very nonspecific--all laws are imposed to "prevent" certain actions deemed a "crime"--that much is obvious. Its what you deem as a crime, and here we would agree that it is a violation of individual rights. Then, when you base punishments on deterrence, on "preventative" measures of yet-to-be criminals, it is no longer a tool for *protecting* individual rights but rather a tool of arbitrary enforcement. Just look at Jordan's last posts to see where that leads. The difference is, Bill, is that you always try to salvage it with an appeal to individual rights--can't be done.

Bill writes:

I'm not sure about a rape victim, but it's obvious that you can't make a murder victim whole, because you can't bring him back to life, but why are you asking me that kind of question? When did I ever say that a rape or murder victim could be made whole? I think you may be confusing me with someone else.

In post #26 you thought maybe my "allegiance" to individual victims has something to do with making them "whole to whatever extent possible". And my point is that it is nothing of the sort.

Also, you stated that "beyond restitution", punishment "must be justified by how well it protects people from future crimes". What, in your book, constitutes "restitution"? And when you go "beyond" this, does that mean that the government should be in the business of prognosticating what a criminal or a class of them will do and hand down punishments according to their predictions?

Bill writes:

Okay, fine. And you thought that I would disagree with this because...?

I couldn't tell by what you wrote about the function of "restitution".

Regards,
Michael

PS. If I could find the Bidinotto article for you, I would provide it. I can't find it. I think it is from his book on criminal justice. I tried to order the book from Amazon over the summer and they said it would be delivered in 4-6 weeks. Two months later they told me they couldn't get it, so I am not 100% positive it is even in the book. However, it would be a good place to look if you are interested.

(Edited by Michael Moeller on 11/30, 8:14am)

(Edited by Michael Moeller on 11/30, 8:45am)

Post 70

Wednesday, November 30, 2005 - 8:25am

Jordan,

I was not making an insinuation of "collectivism", I was calling the ideas collectivist because they are collectivist--I will not sugarcoat because of this forum. It is a rather queer twist that you take an individual's characteristics, such as race or age or culture or whatever, use this to lump them into "classes" and manage to claim it that it "upholds equality under the law". It does no such thing.

And, yes, I know that you and Bill don't think I have justified my view "retributive" view. And if you think my brand of retributivism is "suicidal", you should try arbitrary enforcement of laws on for size--its the stuff of dictatorships.

Regards,
Michael

Post 71

Wednesday, November 30, 2005 - 8:30am

"Let's say you think 4 years in jail is the amount of time a first-time thief should be "held responsible" or "made to suffer" for his crime. After those 4 years, he's "paid his debt." Should we release him, even if he's still a threat or a greater threat than when he walked in? If you say yes, then you're a tried and true retributivist, and you're suicidal. If you say no, it's probably because you accept deterrence as a factor in punishing, which indeed you explicitly accepted in your last post."

So you are adding indeterminant sententcing to your theory as well? Isn't that the modus operandi of dictatorships?

(Ok that last is a provocative statement. You can handle that, I'm sure.)

Post 72

Wednesday, November 30, 2005 - 9:37am

Moeller,

It's not collectivist to treat individuals as they are, so appealing to classes in which the individual is a member is not prima facie a case of collectivism, particularly when class membership is indicative of an individual's behavior. You lump criminals together according to their crime -- which is a class, if I may point out -- and ignore their individuals differences. Isn't ignoring individual differences what collectivism is all about? I would classify criminals according to their incentives, and may lump them according to crime should the type of crime indicate an individual's particular incentives.

Jeff,

So you are adding indeterminant sententcing to your theory as well? Isn't that the modus operandi of dictatorships?

Barring costs, the sentence should terminate only when the criminal is deterred. I'm skeptical that dictatorships would operate the same way. I suspect most of 'em would prolong sentences just to prolong suffering, not to ensure deterrence.

Anyway, you should notice that I keep omitting cost from my analysis. Cost can get complicated and controversial, namely because cost analyses usually indicate that the optimal crime rate should be positive. <insert sound of audience gasping here>. Say the best way to have a 100% chance for deterring a $20 pickpocketer is to jail him for 30 years. That's going to cost us a fortune! We should reduce his sentence, which means lower the chances that he'll be deterred, until the benefits (to us) of his sentence don't outweigh the costs.

Jordan

Post 73

Wednesday, November 30, 2005 - 10:31am

Jordan,

You are not making much sense. YES, I treat each criminal the same based upon their crime. That is what the law is concerned with, drawing a line around rights to determine what constitutes a crime. Each individual who performs that action commits that crime. Period. I don't care what race they are, their family history, their culture, or anything else...what matters is that they have violated somebody's rights and should be punished accordingly.

You want to dole out different punishments for the same crime based on somebody's "culture" or race or age or whatever your smorgasbord of "idiosyncracies" consists of. You see nothing explicitly collectivist about determining one's "class membership" for the purposes of handing down punishments? And might I add, completely arbitrary. If you can't, then I am afraid there is nothing more I can say.

Regards,
Michael

(Edited by Michael Moeller on 11/30, 12:22pm)

Post 74

Wednesday, November 30, 2005 - 11:13am

In reply to Michael Moeller, I wrote, "No, I wouldn't agree that a thief should get a 30-year sentence for petty theft, for the reasons already given. It could increase the likelihood of other more serious crimes. But your question is: would I advocate it if it didn't? No, because insofar as the punishment were excessive relative to the crime, it would again be tantamount to a rights violation."

Michael replied, "This is my point Bill, on what grounds can you say it is 'excessive' or a 'rights violation' if it accomplishes your primary goal of deterrence? When you say 'relative to a crime', does that mean that you are justifying the punishment primarily based on the crime he committed and NOT the deterrent effects? That is to say, let the punishment fit the crime, not as a standard measured against how well it may keep other criminals (and the criminal himself) from performing certain actions in the future. Just take a good hard look at what Jordan wrote yesterday, that is precisely the type of punishment schemes that people come up with when they move forward with deterrence, i.e. arbitrary enforcement of the laws."

My point is that you have no right to impose cruel and unusual punishment. A 30-year sentence for petty theft would be cruel and unusual--it would be excessive relative to the offense. Given that condition, of the punishments that you do have a right to impose, what is their purpose? Why are you imposing them? And my answer is: in order to protect people from criminals (via incarceration) and to deter crimes from being committed in the future.

I asked, "What do you mean when you say that I 'take the focus off the individual actors.' If you explain anything to me, please explain this."

Michael replied, "That's the problem, Bill, I have explained it over and over again. You don't accept it, so what more can I do? You will just go ahead and ask for more explanation. To repeat what I said in the 1st paragraph above and in about 100 different ways, the justification is the rights violation of another individual, there is no 'wider' justification that you keep demanding."

I agree that the justification for punishing someone is that he violated another person's rights. What I want to know is, what is the justification for punishing someone for violating another person's rights? Do you see the difference? In other words, why are we punishing someone for violating another person's rights? It won't do to reply, because he violated another person's rights.

Michael continued, "Once you start demanding that it be based on deterrence, you move away from the conduct committed by the criminal and toward the future actions of might-be criminals, that's what I tried to get you to see with the above example. Yes, my position is 'retributive', but not in the 'traditional' Kantian sense. It is not serving some principle of 'justice' detached from individual life, it is reflecting back the consequences of a violation of another's rights. Period. End of story."

Okay, perhaps you could explain what you mean by "reflecting back on the consequences of a violation of another's rights." In order for an action--any action, not just punishment for a rights violation--to be justified, it has to be justified relative to the consequences, relative to the end or goal that the action is designed to achieve. In that respect, the justification is necessarily forward looking and must answer the question, what will you accomplish by it?

You write, "And again, you try to salvage your position by saying that it is 'excessive' and a 'rights violation'? But why is it any of these if it DOES indeed provide greater deterrence and deterrence is the goal?"

Deterrence (and protection) is the goal of punishments that you have a right to impose.

I asked, what could be the "goal if not protection or deterrence"? You replied, "Are you lumping protection and deterrence together now? Do these mean the same thing, Bill? Is protecting people from a criminal who has committed a crime (by incarcerating him) the same as doling out punishments according to their deterrent effect?"

My apologies for not being clearer. I acknowledged several posts ago that I viewed the purpose of punishment as both protection and deterrence-- that deterrence applies to the criminal's motivation, whereas protection can be achieved through incarceration even if it has no effect on the criminal's motivation. Actually, now that I think about it, protection is the wider concept, because it includes deterrence. If a potential criminal is deterred from committing crimes, then to that extent people are protected against being victimized.

I wrote, "...this is what Ayn Rand means by 'preventive law,' then it has nothing whatever to do with our discussion. Frankly, I'm astonished that you don't recognize the difference between what Hull is saying and what I'm saying."

Michael replied, "Bill you said in post #26: 'So what's wrong with preventative laws (laws that prevent crime), so long as they don't violate individual rights?' Naturally, Bill, I thought you understood what was generally meant by 'preventative laws'. Your statement was very nonspecific--all laws are imposed to 'prevent' certain actions deemed a 'crime'--that much is obvious. Its what you deem as a crime, and here we would agree that it is a violation of individual rights. Then, when you base punishments on deterrence, on 'preventative' measures of yet-to-be criminals, it is no longer a tool for *protecting* individual rights but rather a tool of arbitrary enforcement."

But if the purpose of punishment is prevent rights violations, then it has to be consistent with that purpose; it cannot be a tool of arbitrary enforcement. There is nothing wrong with preventative law, so long as it serves the goal of respecting people's rights.

You continue, "Just look at Jordan's last posts to see where that leads. The difference is, Bill, is that you always try to salvage it with an appeal to individual rights--can't be done."

What do you mean, "can't be done"? It must be done, if the purpose is the prevention of rights violations. It is precisely that purpose that circumscribes the kind of preventative law that is permissible. What I'm saying is, given the condition that people's rights are respected, there is nothing wrong with punishing someone for the purpose of preventing future crimes.

Michael wrote, "Also, you stated that 'beyond restitution', punishment 'must be justified by how well it protects people from future crimes'. What, in your book, constitutes 'restitution'?"

Making the victim whole, to whatever extent possible. For example, if I steal your car and total it, restitution would involve compensating you for the value of the car. But in addition, I should receive a penalty of some sort (preferably, jail time) in order to prevent others being victimized by similar crimes in the future. Obviously, the prevention isn't ironclad, but the purpose of the penalty is to provide as much protection as possible consistent with a respect for the criminal's rights, which would prohibit a penalty that is excessive relative to the offense. The purpose of the restitution is simply to give back to the victim what is rightfully his.

You continued, "And when you go 'beyond' this, does that mean that the government should be in the business of prognosticating what a criminal or a class of them will do and hand down punishments according to their predictions?"

It's not possible to predict with certainty what a criminal or class of criminals will do, but if a person commits a crime, it's reasonable to think that he might very well commit similar crimes in the future, and that he should be prevented and/or discouraged from doing so by whatever measures are appropriate. It's also reasonable to think that if he suffers no adverse consequences for his crimes, he and other potential criminals will be more likely to commit these crimes in the future.

- Bill

(Edited by William Dwyer
on 11/30, 11:15am)

Post 75

Wednesday, November 30, 2005 - 11:17am

Moeller,

YES, I treat each criminal the same based upon their crime. That is what the law is concerned with, drawing a line around rights to determine what constitutes a crime.

Geez. Try to understand what I'm saying. So far as I can tell, you'd sentence all all thieves who commit some particular type of theft to the same punishment, regardless of the criminals' particular differences. Same punishment for same crime is your unsubstantiated version of what the law should be. I still can't see how your view is any different from cosmic karma, some way of restoring "the balance." I think you think that punishing all thieves of a certain class in the same way makes them somehow "pay" for their violation of someone's rights.

You want to dole out different punishments for the same crime based on somebody's "culture" or race or age or whatever your smorgasbord of "idiosyncracies" consists of.

I want to dole out punishment based on the particular incentives of each criminal. It has been shown that age, lifestyle, culture et cetera influence a person's particular incentives, so I'd be remiss to ignore them. However, I think it would be collectivist if I continued to punish based on these idiosyncracies when there's evidence that says they don't influence particular incentives. Again, my view responds to empirical studies, far from arbitrary, and it sure beats cosmic karma.

Jordan

Post 76

Wednesday, November 30, 2005 - 12:15pm

Bill writes:

Given that condition, of the punishments that you do have a right to impose, what is their purpose? AND
Deterrence (and protection) is the goal of punishments that you have a right to impose.

What determines what you have a "right to impose"? I asked you why it is "excessive" given that the "only justification" (in your words) is deterrence. Since the words "cruel and unusual punishment" were put in the Constitution, are they to be accepted merely as a "given"? In other words, if the "only justification" is deterrence, and a particular type of punishment does deter, then why is this punishment not justified? What is the source of the limits you are imposing on how much punishment the government has a "right to impose" on a given criminal?

Bill writes:

It must be done, if the purpose is the prevention of rights violations. It is precisely that purpose that circumscribes the kind of preventative law that is permissible. What I'm saying is, given the condition that people's rights are respected, there is nothing wrong with punishing someone for the purpose of preventing future crimes.

First, Bill, I never said there isn't an element of deterrence, I said it was "secondary". But here we go around the loop again. You say deterrence is the "only justification" for punishment, but it has to be consistent with individual rights. I lead you to the implications of "deterrence" as the justification and to explain that when you start with "deterrence" as the justification you are NOT upholding individual rights. To which you respond: "No, I mean 'deterrence' consistent with individual rights". And 'round and 'round we go.

Bill writes:

I agree that the justification for punishing someone is that he violated another person's rights.

So what's the problem?

Bill continues:

Do you see the difference? In other words, why are we punishing someone for violating another person's rights? It won't do to reply, because he violated another person's rights. AND
Okay, perhaps you could explain what you mean by "reflecting back on the consequences of a violation of another's rights." In order for an action--any action, not just punishment for a rights violation--to be justified, it has to be justified relative to the consequences, relative to the end or goal that the action is designed to achieve. In that respect, the justification is necessarily forward looking and must answer the question, what will you accomplish by it?

Bill, because it is a recognition of "individual rights", that each man is an end in himself. When somebody intrudes upon one's ultimate right to his own life, the state, as a protector, is justified in reigning in the criminal because of this violation. The criminal can be said not to recognize this right in others and therefore has forfeited his own freedom to the extent of the crime he has committed (the proportionality principle). It is not "forward-looking" at his might-be actions, it is past looking at the actions he has committed. If the punishment deters him from future crimes, and I hope it does, then it is fine to keep this "part" of punishment in mind (eg. increased sentencing for repeat offenders). But that is "secondary" to holding him responsible for the criminal actions he has taken.

Let's leave the "preventative laws" aspect aside for now, I don't think it is a proper way to think about "Objective Law" and it introduces too many worms.

Regards,
Michael

(Edited by Michael Moeller on 11/30, 12:21pm)

Post 77

Wednesday, November 30, 2005 - 1:29pm

Jordan writes:

Geez. Try to understand what I'm saying.

That's the problem, I think I understand the implications of what you are saying far better than you. You are doing what standard egalitarians do--that is, take individual "differences" and use this fact to create inequality under the law (different punishments based on whether you are white, black, old, young, "culture", whatever). Hell, you even adopt some of the language (unknowingly, I believe) by saying you appeal to "particular incentives", which they call "positive reinforcers". Anytime you hear yourself talking about the government determining "class memberships" and implementing them into law, you should realize you are speaking the language of collectivists and it is high time you checked your premises.

Regards,
Michael

Post 78

Wednesday, November 30, 2005 - 1:44pm

Moeller,

That's the problem, I think I understand the implications of what you are saying far better than you.

Wow is this ever offensive to me! Not to mention your blathering accusations about my alleged collectivism. Sheesh.

Not that it matters, but I know of no studies that indicate different sets of preferences based on whether a criminal is black or white. But I do know of studies that show impulse control problems with male criminals under 25 and female criminals under (I think it was) 23, and we have some good mechanisms to remedy those impose control problems. Incidentally, these same impulse control problems are part of why some insurance rates vary by age and sex. But I guess you'd find insurance rates collectivist. Also incidentally, lots of producers cater to classes based on age and sex, even race I suppose, and with great returns, but I guess you'd call them collectivist, too.

Oh, and if you'd really like to know why I included "culture" in my list of relevant idiosyncracies, it's because some general studies suggest that Brits who commit certain crimes are more averse to fines than jailtime, while US citizens who commit those same types of crimes are more averse to jailtime than fines. You'd be an idiot to ignore this difference.

Jordan

Post 79

Wednesday, November 30, 2005 - 1:56pm