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July 16, 2008
"Empirical Desert"
The title of this post is the title of this paper on SSRN from Paul Robertson. Here is the abstract:
It has long been assumed that the goals of doing justice and fighting crime necessarily conflict. Retributivists and utilitarian crime-control advocates commonly see their dispute as irreconcilable, and in a sense it is. It is argued here, however, that in another sense these two fundamental aims of criminal justice may not conflict. Doing justice may be the most effective means of fighting crime.
The extent of the criminal law's effectiveness in avoiding resistance and subversion of an unjust system, in bringing the power of stigmatization to bear, in facilitating, communicating, and maintaining societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority is to a great extent dependent on the degree to which the criminal law has earned moral credibility with the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as "doing justice," that is, if it assigns liability and punishment in ways that the community perceives as consistent with their shared intuitions of justice. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert.
The hitch is that it is not moral philosophy's deontological notion of justice that has crime-control power but rather the community's notion of justice, what has been called "empirical desert." This turns out to be both good and bad for constructing a distributive principle for criminal liability and punishment. On the one hand, unlike moral philosophy's deontological desert, empirical desert can be readily operationalized - its rules and principles can be authoritatively determined through social science research into peoples' shared intuitions of justice. On the other hand, people's shared intuitions about justice are not justice, in a transcendent sense. People's shared intuitions can be wrong. In the end, however, the retributivist may find that an instrumentalist distributive principle of empirical desert will produce far more deontological desert than any other workable principle that could or would be adopted.
July 16, 2008 at 08:08 AM | Permalink
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Comments
"It has long been assumed that the goals of doing justice and fighting crime necessarily conflict."
Ah, the perils of the passive voice. Who exactly has long assumed that? Nobody I work with.
Posted by: Kent Scheidegger | Jul 16, 2008 11:08:16 AM
"...the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as "doing justice," that is, if it assigns liability and punishment in ways that the community perceives as consistent with their shared intuitions of justice. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert."
Great words assuming society doesn't want an eye for two eyes and a tooth for a mouthful of them.
Posted by: Ange | Jul 16, 2008 11:25:06 AM
And, it has long been assumed that speaking in the language of justice and narcissism and making money are conflictive goals.
Then began to appear the Victims Rights Industry, and these two goals lived in harmony.
Posted by: S.cotus | Jul 16, 2008 11:45:47 AM
No wonder why in communities that have large minority populations arrests run high; the citizens of those cities and towns don't agree with what they believe to be a corrupt justice system. Prisons are full of minorities and even in prisons gang activity is still quite high, so what exactly are the police accomplishing?
Posted by: JT | Jul 16, 2008 11:55:34 AM
"Doing justice may be the most effective means of fighting crime."
Fighting crime may be the most effective means of doing justice -- unless one is of the view that crime promotes justice.
Yikes.
"[T]he criminal law's moral credibility...is enhanced if the distribution of criminal liability is perceived as 'doing justice...'"
How 'bout this for "distribution of criminal liability": People who commit crimes go to jail, people who obey the law don't.
The startling phrase "distribution of criminal liability" suggests a breathtaking politicization of law. No thanks.
Posted by: Bill Otis | Jul 16, 2008 11:58:12 AM
JT wrote: "Prisons are full of minorities and even in prisons gang activity is still quite high, so what exactly are the police accomplishing?"
Political disruption and control. An imprisoned underclass is a politically unorganized underclass.
Posted by: DK | Jul 16, 2008 12:30:56 PM
JT:
"No wonder why in communities that have large minority populations arrests run high; the citizens of those cities and towns don't agree with what they believe to be a corrupt justice system."
Is the system "corrupt" because it uses police power to attempt to rid these communities of drug pushers, car jackers, burglars, thieves and other assorted bullies? Do you really think minority communities (or any communities) want people of that sort to rule the streets?
Posted by: Bill Otis | Jul 16, 2008 1:03:06 PM
“Do you really think minority communities (or any communities) want people of that sort to rule the streets?”
Not sure. Outside of scripted appearances by token poor people, I don't see too much of an outpouring of support for most police practices.
Posted by: S.cotus | Jul 16, 2008 2:42:54 PM
It has long been assumed that the goals of doing justice and fighting crime necessarily conflict. Retributivists and utilitarian crime-control advocates commonly see their dispute as irreconcilable, and in a sense it is.
As with Mr. Scheidegger, I don't see the conflict either. The goals are different, but not in some kind of irreconcilable conflict. In fact, I think the most common "compromise" is bounded consequntialism---i.e., moral desert (retributivism) sets the limit of the state's entitlement to punish, and consequentialism (what Robinson calls "utilitarian crime control") should drive how much the state actually does punish.
That said, Paul Robinson is brilliant and has a ton of experience with this stuff, so there's probably something there.
Posted by: | Jul 16, 2008 3:23:59 PM
I would frame the goals of sentencing differently than Robertson.
First the State must enforce its threat; if you commit a crime, you will be penalized. Penalties are fixed before the fact and enforced after the fact. Penalties have a fixed boundary and closed texture, plus being mandatory and determinate.
Second, hold offenders accountable for their criminal offenses by punishing them. Punishments are fixed after the fact within a range that is established before the fact. Punishments have a fuzzy boundary and open texture, plus being discretionary within a range and determinate.
Third, control the offender’s risk of committing another criminal offense. People are not punished because they are dangerous, but rather they are incapacitated to protect the public. Incapacitation is discretionary, changeable and indeterminate, because risk changes.
Fourth, discipline unruly offenders. We do not incapacitate offenders to rehabilitate them. Rehabilitation is incidental to these four objectives and can be provided at any level of restraint.
These four objectives are independent of each other. That objective that requires the greatest level of restraint, controls at any given point in time. The restraints imposed to accomplish the other objectives are nested within the restraints imposed to accomplish the controlling objective. In this way all of the States sentencing objectives can be accomplished without compromise.
This system requires the adoption of a graded deprivation system, thereby abandoning the traditional in-or-out approach of prison and parole. This simply formalizes the approach that has been evolving for some years.
Posted by: Tom McGee | Jul 16, 2008 5:03:09 PM
Tom:
Wow. Just wow. I disagree with you totally. Human beings are not X/Y actors. Rehabilitation is the only goal in a sane society. The objective of criminal law from the standpoint of sound public policy is to assist in the maximization of return for a community's cultural investment in the individual. Every locked-up prisoner represents a drain on America's social capital. Whatever the economic rewards to the prison-industrial complex, rational people understand that America's potential just is it's human potential. Any loss of human potential represents a net loss for the social organism.
Posted by: Daniel | Jul 16, 2008 5:17:16 PM
Daniel writes, "Rehabilitation is the only goal in a sane society."
So, deciding that there are some people (e.g., John Wayne Gacy) whom society can never risk letting out is not merely erroneous, according to Daniel, but insane.
Here's a "wow, just wow" right back at you, Daniel.
Posted by: Kent Scheidegger | Jul 16, 2008 5:39:21 PM
And deterring crime is an insane goal??
Double wow.
Posted by: Bill Otis | Jul 16, 2008 6:41:09 PM
This discussion is getting a bit strange.
Tom, I think you're talking about means rather than ends. The traditional objectives of criminal punishment are: (1) retribution, (2) incapacitation, (3) deterrence, and (4) rehabilitation. The 2 main "philosophies" of criminal punishment are retributivism and consequentialism--i.e. do we determine whether and how much to punish based on a cost-benefit analysis or based on the morality. The four points you make seem to be ways in which society could better achieve one of the first 3 objectives I listed above.
Daniel, I think the main goal of criminal punishment is public safety (i.e. 2 & 3). To put it in your terms, putting criminals in jail might represent a loss of human potential, but not imprisoning them allows them to deplete the stock of human potential by killing, raping, and robbing innocents.
Deterring crime by making an example of others might help to preemptively "rehabilitate" potential offenders.
Also, once people have committed crimes, you have a point about the value of rehabilitation, but that goal has proven to be difficult to implement in practice.
Posted by: | Jul 16, 2008 7:27:07 PM
Traditional is the operative word in your comment, I believe. Retribution, incapacitation, deterrence and rehabilitation are strategies, not objectives. Tactics are used to carryout each strategy.
No matter how you cut it, all of the objectives I described will find their way into a sentence through the judge’s pronouncement or in the way a sentence is administered down the line. Remember, judges are not the only people who make deprivation decisions. Correctional people make far more deprivation decisions than judges. So why not be up front about it and make a place for all of them in the system so they are dealt with honestly and openly.
Posted by: Tom McGee | Jul 16, 2008 8:07:25 PM
Beware of the pool, blue bottomless pool
Posted by: federalist | Jul 16, 2008 11:44:55 PM
"Rehabilitation is the only goal in a sane society"
And how successful is rehabilitation? Recidivism is a chronic problem in our CJ system
Rehab might seem the morally superior position, but if in practice it fails, it only suggests severe incapacitation as the legitimate goal of sentencing.
Posted by: Steve | Jul 17, 2008 8:39:20 AM
Federalist, I assume from your comment about the “blue bottomless pool” was intended to suggest that thinking about problems in several different ways is some how a little wispy. Forget it. Cognitive scientists have clearly established that doing so produces much better decisions, because we access and respond to much more information that way. By the way, Blakely and Booker are about thinking of the problem as both a crime and criminal offense.
I believe that each sentencing objective should stand on its own in each case. Otherwise we mix apples and oranges. Decision-making becomes sloppy. Decision-makers can have it any way they want. Decide upon the priority that will be given each objective based upon its workability and cost effectiveness in that case.
Posted by: Tom McGee | Jul 17, 2008 2:54:49 PM
"The extent of the criminal law's effectiveness in avoiding resistance and subversion of an unjust system, in bringing the power of stigmatization to bear, in facilitating, communicating, and maintaining societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority is to a great extent dependent on the degree to which the criminal law has earned moral credibility with the citizens governed by it."
Beware of signs that say hidden driveways
Posted by: federalist | Jul 17, 2008 3:39:15 PM
FWIW
Societies responses to criminal behavior include
1) Prevention (lock up the valuables)
2) Deterrence (increase the probability the criminal will be caught)
3) Incapacitation
a) execution
b) life sentence
c) incarceration until EOS or parole
d) supervision (duration depends on circumstances)
e) rehabilitation (a permanent solution with a small yield)
4) Retribution (most people think just retribution is beneficial and others think unjust retribution is
counter productive)
Deterrence at the front end is worthwhile even though it is not always effective. My opinion is that general deterrence is most effective for youthful offenders and those involved in minor infractions and it is silly to talk about deterring a repeat offender. I am one the the people who think that unjust retribution is counter productive as is passing laws that result in general disobedience (such a possession of alcohol under the legal age).
Even though the yield is small for rehabilitation it is a permanent solution.
Posted by: John Neff | Jul 17, 2008 9:27:43 PM
John. spot on!
Posted by: Tom McGee | Jul 18, 2008 5:47:25 PM
"An imprisoned underclass is a politically unorganized underclass."
How true. Can that be the reason for arresting minorities? Hmm...strip them of their right to vote in an effort to maintain the status quo on top?
"Fighting crime may be the most effective means of doing justice "
So true. However, those who in their effort to fight crime are corrupt breed higher incidents of crime. Corruption among those who have been entrusted to enforce the law create a sense of defeat among those who want to do better but have a lower standard of morality or lack social bond within their community.
The lack of trust in a system designed to be the ultimate place to seek justice make these people feel caught between a rock and a hard place. They are damned if they do and damned if they don't commit crimes--they will be arrested because they look criminal, look LIKE the criminal, or have a past criminal history.
What is left for people who can't trust the criminal justice system we have because of corruption by officers, prosecutors, judges, community corrections staff, etc...?
They say, "Damn this $hi! I'm doing it my way and see if I can get away with it."
I don't condone this type of thinking. It's negative and brings forth no good fruit. But at the same time, I understand why some people act the way they do. We need a more just system that treat people on an individual basis instead of biases.
"in practice it [rehabilitation] fails, it only suggests severe incapacitation as the legitimate goal of sentencing."
Rehab fails BECAUSE we seek to send the criminal exactly how we got them, with a criminal mentality, no social or generalization skills, no education, no technical skills, a walking criminal history that follow them like a shadow--we STILL have not learned that stigma does NOT attach to everyone, look at Martha Stewart. According to research education was the best solution to rehabilitation. Texas messed that one up too.
We still believe it's cool to try to emasculate men by humiliating them in prison and expect them to walk out the prison doors feeling like he has the biggest and juiciest appendage every female desires. And because he's dripping hot he has the self-esteem to withstand anything and earn a living for him and his family so he can continue feeling like a man. An emasculated man doesn't have the confidence it takes to face the world head on and do what he must do, LEGALLY, to care for those he love. Hell, look at some men who have ended their marriage due to infidelity on the WIFE's part-fragile, insecure, angry, bitter, etc... The same goes for a man with no money in his pocket and no marketable skills to make a decent living.
We need a system that can take criminals and make CITIZENS out of them, military style. MAKE them work to pay the child support. WORK to keep their mind off negativity or engaging in unnatural acts. WORK to be able to gain access to some of the things they want. For those with the prospect of going back home, the gov't should bank part of their money and pay them interest as if they were paying rent, utilities, etc...at the end of their time, that's the money they have to help them support themselves until they can get a job. Hard work is not cruel and unusual unless the same working conditions are not afforded those not in prison--breaks, overtime pay, vacation time so they can stay in their cell and relax, PPE, etc..
Some say general deterrence works. General deterrence is questionable. It has become "hip" to wear prison garb and walk around with sagging pants looking like a prison *itch instead of a man.
"Retribution, incapacitation, deterrence and rehabilitation are strategies, not objectives. Tactics are used to carryout each strategy."
Those can be said to be goals or rationales for punishment. As goals, the gov't lacks objectives in place to meet those goals. You have one prison with a stated goal of rehabilitation and has some programs to help accomplish that goal and then you have Texas. Everything in Texas it seems is under the goal of retribution. And talking about goals, we should look more into restorative justice and see the connection between offender and community bonding. We don't have enough research in this area. But it sounds like a good idea. There are things that sound great on paper until you see the damage coughcough-US Patriot Act-coughcough.
Sorry about the rant. But I'm passionate about this topic.
Posted by: | Jul 18, 2008 6:13:08 PM
"Hell, look at some men who have ended their marriage due to infidelity on the WIFE's part-fragile, insecure, angry, bitter, etc... The same goes for a man with no money in his pocket and no marketable skills to make a decent living."
"Got no money, got no car, got no woman and there you are."
Posted by: federalist | Jul 18, 2008 8:55:30 PM
