Crime and Punishment

Ed - A legal philosophy of "just deserts" requires an objective standard (NOT arbitrary legislative assertion!) of exactly what constitutes "just deserts" for any specific violation of individual rights. To constitute objective justice, this standard would have to be grounded in the ethical self-interest of the participants in the legal system. In other words: exactly what punishment is it in my self-interest to impose, in the given context, on someone who has been shown, at such and such a level of confidence, to have committed this specific crime?

Bidinotto, unfortunately, provides no such standard. His position is, as near as I can understand it, "let us just pretend that, even in our political context today, the law already gives every man what he justly deserves, and run our jails and prisons and executions as though this were actually true." Ayn Rand had a word for this sort of thing...

(Edited by Adam Reed
on 12/10, 6:41am)

Post 121

Saturday, December 10, 2005 - 1:18am

Isn't here anyone who knows how to spell "just deserts"...?

Post 122

Saturday, December 10, 2005 - 4:08am

'desert' is a dry land... 'dessert' is a dish to eat... the term is 'just dessert', in reference to getting the proper ending to the meal...

Post 123

Saturday, December 10, 2005 - 4:56am

Robert:

the term is 'just dessert', in reference to getting the proper ending to the meal...

Ehmm... this is a joke, I suppose?

Post 124

Saturday, December 10, 2005 - 10:39am

Adam,

I think that we agree on some kind of proportionality (rather than no kind of proportionality). I think that you are (unintentionally) getting too precise for the current context, and that bolsters your case. I call that the Fallacy of Infinite Precision, something the acontextually demands so much precision that it loses accuracy in a given context (I'm talking about architects demanding that 20-foot planks be cut to within a hundredth of a millimeter of each other -- even though the cut surfaces themselves contain tiny hills and valleys of magnitude greater than this).

Perhaps you are aware that this is not your position at all. If so, then I would welcome retort to that effect. I think that you and I agree that petty theft and murder ought not be equally punished. We would also agree on which one is the greater, and which the lesser. Perhaps you'd say that this is "water under the bridge" -- because the point is the moral justification of any punishment, not the varying degree of punishment. But there is something to be said for the perspective that can be gained by the concrete example of varying degrees.

I am of the mindset that vengeance is not, ipso facto, irrelevant to punishment. Rationally-legalized (ie. proportioned) vengeance helps victims feel better. There is a reason for this. The reason is that there is an Evolutionary Stable Strategy for human interaction. Just look into any playground to see if there is not punishment proportionality that already exists among "unadulterated" humans. You will see that a nudge warrants a nudge, a shove a shove, and a knock-down a knock-down. This delicate balance is held in place by these young minds because a sense of fairness is a human thing to have. It could have never been otherwise (early humans lacking this sense altogether, would have been systematically ostracized).

Retribution helps us feel better in our societal interactions. Operating under a proportioned system of justice, folks have the fortitude to produce value in society knowing that -- even though they are not guaranteed safety -- their potential losses due to crimes will be met with a leveling punishment. Imagine the opposite. Imagine an inversion of proportionality (petty theft punished as murder now is, murder as a misdemeanor). How would victims feel then? How would they respond to various crimes then?

You would find victims who wouldn't report petty thefts, because they wouldn't feel that their violator DESERVES a life sentence. What I'm talking about is a natural justice, justified in the same manner that Individual Rights are justified.

Ed

Post 125

Saturday, December 10, 2005 - 12:09pm

No, was not a joke, but bad information... the term comes from obsolete using of the word 'deserves', and refers to getting what is due to a person - and is spelled 'just deserts'... all clear now?

(Edited by robert malcom on 12/10, 12:14pm)

Post 126

Saturday, December 10, 2005 - 1:53pm

Adam writes:

In other words: exactly what punishment is it in my self-interest to impose, in the given context, on someone who has been shown, at such and such a level of confidence, to have committed this specific crime?

This statement I think confirms my earlier suspicion that Adam was asking for the form or type of punishment and whether it is consistent with self-interest. But again, that misses the point: why exactly is the state justified in imposing punishment on a person, before the question of what form the punishment takes. This is apparently why Adam sees a retributive theory as "circular", he is implicitly adopting a consequentialist (and unjust) position.

In regards to the capital punishment question, I don't think there can be any doubt that AR was operating off of a morally retributive standard. Both in "Ayn Rand Answers" and the tape "Objective Law", AR clearly states that a person who commits 1st degree murder morally deserves the death penalty for deliberately killing another individual with malice aforethought. Notice here, she justified the punishment of the criminal by tying it to the actions of the criminal--i.e. what he justly deserves for those actions.

Then, on the question of capital punishment being implemented into the legal system, in "Objective Law" she says "a good argument can be made" (and that she tends to agree with it) that because mistakes of evidence can be made, it would be better to let nine murders rot in jail than to execute one innocent man. Clearly, her gripe is NOT with the murderer receiving his "just deserts", its with implementing certainty as a legal standard. Notice also, she is not completely firm, she says "a good argument can be made". Instead of condescending to me about listening to the tape, maybe Adam should have instead given it a good listen or three.

Adam also writes:

Bidinotto, unfortunately, provides no such standard. His position is, as near as I can understand it, "let us just pretend that, even in our political context today, the law already gives every man what he justly deserves, and run our jails and prisons and executions as though this were actually true." Ayn Rand had a word for this sort of thing...

Adam is talking through his hat again. It might actually help if Adam took quotes from Mr. Bidinotto's article to support his position, instead of his bad habit of wrongly asserting what he purports another's position to be. Read the article and see for yourself if Mr. Bidinotto is saying "let us pretend" that the "law alread gives every man what he justly deserves" and imposes punishments "as though this were actually true". As a matter of fact, the article draws out the failures (quite correctly) of the consequentialist/utilitarian position and how it amounts to injustice, which is the position most criminal justice advocates take these days. Mr. Bidinotto also outlines what he thinks is the proper justification of the system and the manner in which the system should operate, NOT "let us just pretend that, even in our political context today, the law already gives every man what he justly deserves". Again, read the article and judge for yourself.

Michael

(Edited by Michael Moeller on 12/10, 1:58pm)

Post 127

Saturday, December 10, 2005 - 6:02pm

Michael,

Bidinotto has written much more than an article: he has written a whole book, plus many articles with precisely the import I noted.

Ed,

The problem is not lack of precision - some range of precision must be acceptable - but lack of grounding. I have long argued that one of the factors that contribute to punishment being in the self-interest of the participants in the system of justice, is the contribution that punishment makes to the psychological recovery of the victims of crime - and also the deterrence of criminal by knowledge that one lives in a society in which criminals are punished, along with prevention of recidivism by incarcerating the criminal, forcing restitution when possible, and perhaps other mechanisms. What I find missing from Bidinotto's writings, the whole body of them, is any attention to the mechanisms through which punishment contributes to the self-interest of participants in the system. Without such attention, the argument for the justice of punishment becomes circular from lack of grounding, and that is not good.

(Edited by Adam Reed
on 12/10, 6:06pm)

Post 128

Sunday, December 11, 2005 - 8:47pm

Adam,

Ok, I'll check out more of the articles. As luck what would have it, I just received Mr. Bidinotto's book ("Criminal Justice?") a couple of days ago. It seems he only wrote 4 of the essays in the book. I was only able to read the first ("Criminal Responsibility") so far, and again, I don't think your criticism has merit. I think Mr. Bidinotto takes a well-grounded approach and looks at the justice system from a more radical perspective (i.e. grounded in Objectivist ethics). Again, if others are interested, they should read and judge for themselves.

I do have a couple of questions for you, Adam. First, it was a little difficult to gauge your approach, is it utilitarian or retributive? Secondly, could you provide a link(s) or source(s) for the evidentiary process in the Swiss system that you lauded before? I am interested in checking it out, as I am on the other side in that I think the adversarial system is indispensable to the judicial process.

For the determinists and utilitarians on this thread, I want to quote a paragraph out of David Kelley's article ("Stalking the Criminal Mind") in Mr. Bidinotto's book "Criminal Justice?":

These two reports neatly illustrate the philosophical dispute that runs through the debate about crime. If our actions are a product of causes outside our control, then it is unfair--and ineffective--to blame criminals for what is really the fault of society, or their parents, or their genes. We must try to alter those cause, and use punishment solely as a means of rehabilitation. If our actions are freely chosen, however, then society can hold us responsible for them and refuse to indulge the kinds of excuses that determinism offers. Punishing wrongdoers is then a form of retribution, and a way of removing them from our midst.

I had no idea David Kelley even wrote on criminal punishment, but it seems that he agrees with: (1) punishment is "a form of retribution" and (2) determinism holds that criminals are not morally blameworthy.

It ceases to amaze me that determinists think they can change a fundamental like free-will and the rest of the Objectivist philosophical hierarchy will remain intact, like changing the batteries in an electronic device where it runs just as smoothly as before. What really is happening is that they are taking a sledgehammer to the electronic device, smashing it to pieces, and asking: "why can't it still work?" This thread is good evidence of just how integrated the hierarchy is, and differences on crime and punishment is but one manifestation of a seemly limitless number when you swap out a fundamental like free-will for determinism.

Michael

Post 129

Sunday, December 11, 2005 - 9:38pm

Michael,

I am not a determinist. I am not a utilitarian. I do, however, agree with the foundation of Ayn Rand's ethics - which is, that the only valid criterion for my choice of action, is whether or not its consequences will be in my interest. Unlike utilitarianism, I do not ask, "what will bring the best consequences for the greatest number." The utilitarian criterion is collectivist, and I reject collectivism. My criterion is, "what will bring about the best consequences for me, the moral agent." The Randian position is an individualist consequentialism.

Note that Kelley, unlike Bidinotto, does refer to a specific consequence of punishing criminals by incarceration: punishement is "a way of removing them from our midst" so as to prevent them from committing additional crimes. But the fundamental point is this: what makes punishment just is that I have rational, consequence-based reasons for inflicting it. Without consequence-based reasons for punishment, there would be no reason to think that punishment is a just (that is, rationally predictable among rational men) consequence of the criminal's actions. Bidinotto, on the other hand, argues for retribution without regard for its consequences, that is, without grounding it in the self-interest of the participants in the social-legal system. His is an essentially intrinsicist, and therefore circular and Kantian argument for punishment. And it leads him - in the case of epistemological criteria for inflicting the death penalty - into direct contradiction of Rand's position.

As for the Swiss system, it includes an adversarial process to adjudicate guilt - but before adjudication, it requires an objective investigation conducted under the supervision of an impartial, scientifically trained "Judge Coroner" (juge d'instruction.) This differs from the American system, in that in Switzerland the investigators are not agents of the prosecution, but rather forensic and medical scientists sworn to gather the evidence with equal regard for prosecution of the guilty and for protection of the innocent from prosecutorial error. At the end of the investigation, if the Judge Coroner finds cause for prosecution, he gives exactly the same collected evidence to the prosecution and the defense, and then the adversary proceeding takes its course.

(Edited by Adam Reed
on 12/12, 7:35pm)

Post 130

Monday, December 12, 2005 - 9:13am

Curiosity, Adam - who pays for that investigating, the government/ if so, how then is there real impartiality, even if same conclusions are given to each party ?

Post 131

Monday, December 12, 2005 - 9:53am

Robert,

Of course the government - or rather those citizens who pay taxes (in a free society, it would be those who choose to support the government) - pays for the investigations, as it does for all operations of the judicial branch. The rationale for supporting a judicial branch is that every constituent of the government has both an interest in not being wrongly subjected to punishment if he is innocent, and in having the guilty prosecuted and punished.

Post 132

Tuesday, December 13, 2005 - 1:40pm

Adam,

My criterion is, "what will bring about the best consequences for me, the moral agent." The Randian position is an individualist consequentialism.

Okay Adam, I do like the individualist consequentialism thing (though I prefer the term "rationally-principled consequentialism" which, upon sufficient reflection by someone who is intellectually honest, just IS an individualist consequentialism). Regarding your "what's best for me" principle, how would you respond to the following chain of events ...

1. A Babylonian practicing the Code of Hammurabi declares you his slave.
2. You say GFY.
3. This half-brute cuts off your ear and repeats that you are his slave.
4. You run to the cops and he is arrested.
5. His "punishment" is to be ostracized -- to be put on an uncharted island for life, one with the following amenities:

a) 6 dozen virgins
b) internet with television and videophone capabilites, on a 50-inch flat-screen
c) dirt-bikes, sand-buggies, jet-skis, and a fishing boat
d) a Club Med style health spa
e) monthly drops of fuel, Cuban cigars, Jack Daniels, and caviar
f) a mansion with an 18-hole golf-course in the backyard

No one else knows where he was deported to or if he'll ever return. Now, let me ask you a "rhetorical" and a follow-up question:

Is recividism effectively prevented? Yes, he's happily stranded.

Is his punishment justified? (From deterrence and recidivism aspects, this punishment seems justified)

And if that ain't enough, here's the kicker: he dials up his videophone. He would like a stowaway buddy (to go fishing with) -- and you still have one more ear ...

Ed
Retribution is moral

Post 133

Tuesday, December 13, 2005 - 7:16pm

Adam,

First of all, when I said "for the determinists on this thread", I was not referring to you. I was operating under the assumption you were NOT a determinist, but since we were discussing the book, I wanted to add that bit from David Kelley for the determinists on the thread. Perhaps it would have been more appropriate to include it in a separate post.

Regarding the consequentialist/utilitarian position, I was strictly referring to the theory of punishment that looks forward to the consequences of the punishment as opposed to looking backward at the actions of the criminal (i.e. retribution)--whether or not one connected it to the utilitarian ethic of "greatest good for the greatest number" or made it more "individualist". And AR is NOT consequentialist, she speaks of a criminal getting what he morally deserves for his actions, this is the language of moral retribution. Before you can answer the question of what form of punishment is consistent with self-interest, you must answer the question: what gives the state the right to impose punishment in the first place? You can call your position individualist consequentialist if you want, but you are subject to the same pitfalls as the Jeremy Bentham-style consequentialist.

And the retribution position is not "circular", unless, of course, you disagree that each man is his own causal agent and responsible for the consequences of his actions? It is "grounded" in man's nature as a volitional, rational being. In a social context, this means each man deals voluntarily with other mean to their mutual self-interests. The state's role is to objectively define what conduct constitutes force (i.e. involuntary coercion) and imposing negative consequence for attempting to gain values and live among rational by force. What form the negative consequences take then becomes the next question.

And by the way, this does NOT mean one ignores the consequences of the punishment. Clearly, neither I nor Mr. Bidinotto have done this, to be sure the are practical consequences of punishment should be aligned with the self-interest of the victims--this is the necessary outgrowth of holding the criminal accountable for his actions against the victim. You quoted Kelley's phrase "in our midst" as supporting incarceration to prevent recidivism. Then you go on to say that Mr. Bidinotto position is different, which is completely false. First of all, Mr. Bidinotto gives explicit acknowledgement to David Kelley for helping in the formulation of his arguments (see footnotes of essay "Criminal Responsibility"), so obviously there was a high level of agreement. Now to the source itself, Mr. Bidinotto writes in "Crime and Moral Retribution":

Such a system [punishment based on moral retribution] would also incorporate many of the practical crime-fighting goals of the utilitarian. For example, long terms of confinement under harsh conditions, with inmates forced to work and pay restitution to victims and taxpayers, would deter far more criminals and would-be criminals than a brief vacation at a country club such as Mercer. Such punishments would also incapacitate and�who knows?�possibly knock some sense into the occasional inmate, thus fostering his desire to rehabilitate himself

AND

Prisons are an unavoidable part of the punitive strategy. Unlike prevention, rehabilitation or deterrence, incapacitation is the only certain crime-reduction method: while locked up, a criminal can't commit crimes.

This last quote sounds like incarceration to prevent recidivism to me!!! After reading all of Mr. Bidinotto essays in his book, Adam, your criticisms fall flat on their face. Why not provide quotes from Mr. Bidinotto to bolster your arguments? Otherwise, to those who have read his essays, your criticisms seem like mere assertions without having read the material.

As to the Swiss system issue, I want to compare their rules of discovery and criminal procedure with those in the US. I suppose I could look it up on Lexus/Nexis, but I thought you might have a couple of links and/or sources handy. If you do, I would greatly appreciate them, I want to examine which system is more objective.

Regards,
Michael

Post 134

Thursday, December 15, 2005 - 8:52am

Michael Moeller replied to Adam Reed as follows:

Regarding the consequentialist/utilitarian position, I was strictly referring to the theory of punishment that looks forward to the consequences of the punishment as opposed to looking backward at the actions of the criminal (i.e. retribution)--whether or not one connected it to the utilitarian ethic of "greatest good for the greatest number" or made it more "individualist". And AR is NOT consequentialist, she speaks of a criminal getting what he morally deserves for his actions, this is the language of moral retribution.

A consequentialist can argue for a criminal getting what he "morally deserves," because all it means to say that someone morally deserves something is that someone else "ought" to give it to him. The question then becomes, why ought someone else to give it to him? And the consequentialist would answer: because doing so leads to desirable consequences. Michael continued,

Before you can answer the question of what form of punishment is consistent with self-interest, you must answer the question: what gives the state the right to impose punishment in the first place?

What gives the state "the right" to impose punishment in the first place is that the criminal violated someone else's rights. But to say that the state has "a right" to impose punishment is not the same as saying that it "ought" to impose it. Whether or not it ought to impose punishment must be determined by the consequences of the punishment. If it leads to good consequences, then it should be imposed; if it leads to bad consequences, then it should not be imposed, regardless of the state's right to impose it. In this sense, Ayn Rand was definitely a consequentialist. Read her essay, "Causality versus Duty."

- Bill

Post 135

Thursday, December 15, 2005 - 10:38am

Bill,

Sigh. Sigh again. Obviously my answers don't satisfy you, so why not take it up with Robert Bidinotto? Maybe he can provide answers you will be happier with. I'm tired of beating a dead horse.

Regards,
Michael

Post 136

Friday, December 16, 2005 - 1:36pm

Bill, you wrote:

If it leads to good consequences, then it should be imposed; if it leads to bad consequences, then it should not be imposed, regardless of the state's right to impose it.

The trouble with this statement is that it requires qualification. Here is an analogy: The Preamble to the Constitution includes the phrase General Welfare. Welfare-statists contort the meaning of this phrase in support of rights inflation such as Affirmative Action. The actual meaning of the phrase, when integrated with the document as a whole, is really nothing more than "justice."

The welfare that welfare-statists proclaim is welfare for some, at the expense of others. This is not a General Welfare. A General Welfare is good in general, not necessarily in particular. Now, how does this apply to your statement?

A social-engineer/social-metaphysician could get a hold of your statement and use it in counterfeit support of the notion that punishments ought to fight the criminal, and not the crime. If a murderer could be reformed with just 2 years in jail, then that social engineer -- treating the murderer as a means (and a trainable, sub-human animal), rather than an end in himself -- would let that murderer go.

Nevermind the emboldening effect that this light sentence would have on potential murderers, he says, my job is to engineer individuals. Or, for the more enlightened social engineer (the truly utilitarian):

Nevermind the bitterness, initiated and propagated by differential punishments being doled out for the self-same crime, he says, I will use state power to redistribute resources and level out this animosity -- that is my job description: to each according to his needs.

What is good in general (for the sum of all individuals involved) is for punishments to fit the crime. Both parties involved (criminals and victims), will best be able to act well under an objective (proportionalized) justice system. Each will be taught about the law of causality, each will be best able to improve their life conditions -- only if law & justice mirror the actuality of reality (ie. doing really bad things leads to really bad consequences, etc).

Constitutional republics are a purposeful invention by individual citizens. They are meant -- above all -- to be the instantiation of objective, retaliatory force. The reason to even have law, is to make retaliation objective and proportionate. We chose it, we agree to it, because we know we ought to (it is better than not agreeing to it). We are smart enough to know that there is a spectrum of actions, which lead to a spectrum of consequences -- and that we ought to closely mirror that part of "just deserts" which is enforceable by law.

Ed

(Edited by Ed Thompson on 12/16, 1:37pm)

Post 137

Friday, December 16, 2005 - 11:05pm

Ed, you write:

What is good in general (for the sum of all individuals involved) is for punishments to fit the crime. Both parties involved (criminals and victims), will best be able to act well under an objective (proportionalized) justice system. Each will be taught about the law of causality, each will be best able to improve their life conditions -- only if law & justice mirror the actuality of reality (ie. doing really bad things leads to really bad consequences, etc).

This, I think, is the missing piece that I was trying to bring into the picture (and that Michael insisted was not missing.) What completes the argument are the consequential mechanisms.

"Doing really bad things leads to really bad consequences" identifies the consequential mechanism of deterrence.

"Each will be best able to improve their life conditions" identifies the consequential mechanism of restraint, which (1) improves the life of people whom the criminal would have continued to victimize if he were not restrained, and (2) potentially improves the life of the criminal by facilitating his rehabilitation.

It is these consequential mechanisms - deterrence, incapacitation, and potential rehabilitation of the criminal - that are disparaged by the Kantians, who argue that criminals ought to be punished because we have a duty to carry out proportional justice, without regard for our own interests. In fact, of cause, the principle of proportional retributive justice is a result of principled, self-interested individualist consequentialism.

Michael - do you still disagree?

Post 138

Saturday, December 17, 2005 - 9:51am

I wrote: "If [punishment] leads to good consequences, then it should be imposed; if it leads to bad consequences, then it should not be imposed, regardless of the state's right to impose it." Ed replied,

The trouble with this statement is that it requires qualification. Here is an analogy: The Preamble to the Constitution includes the phrase General Welfare. Welfare-statists contort the meaning of this phrase in support of rights inflation such as Affirmative Action. The actual meaning of the phrase, when integrated with the document as a whole, is really nothing more than "justice."

The welfare that welfare-statists proclaim is welfare for some, at the expense of others. This is not a General Welfare. A General Welfare is good in general, not necessarily in particular. Now, how does this apply to your statement?

A social-engineer/social-metaphysician could get a hold of your statement and use it in counterfeit support of the notion that punishments ought to fight the criminal, and not the crime. If a murderer could be reformed with just 2 years in jail, then that social engineer -- treating the murderer as a means (and a trainable, sub-human animal), rather than an end in himself -- would let that murderer go.

Nevermind the emboldening effect that this light sentence would have on potential murderers, he says, my job is to engineer individuals.

Earth to Ed! Earth to Ed! Go back and read your last sentence. You are saying that letting this man out because he's been reformed could have an emboldening effect on potential murderers. In saying that, you are saying that it would lead to BAD CONSEQUENCES! HELLO! Look, Ed, I'm not saying that we shouldn't employ consistent, predictable punishment for certain crimes, regardless of the individual propensity for recidivism. But that's because doing so leads to good consequences; it deters crime. Suppose it didn't. Suppose instead that it lead to an upsurge in crime. Would you still advocate it? No, of course, you wouldn't. If you did, you would be a stupid retributionist, who supports punishment for deontological reasons, regardless of the consequences.

- Bill

Post 139

Monday, December 19, 2005 - 11:39am