Throughout my life I've seen a lot of opinions about prison sentence length, fines, whether we should have the death penalty, what is cruel and unusual punishment, etc. In the 90's, for example, we had "tough on crime" laws, mandatory minimum sentences, "three strikes" laws, etc. Things always come full circle so it was no surprise (to me at least) that in the 2010s we saw "bail reform" and other things like that.
A while back I spent a bunch of time thinking about "what is punishment for" and I came up with a surprisingly long list. I thought I'd share it here, not to change your mind, but to give you some food for thought.
First, I believe that the reason we have a justice system - police, courts, prisons - is because we believe as a society that we will have less disorder and less injustice if we don't let the strong prey on the weak and if we discourage blood feuds and revenge killings and all the behaviors we've seen in the absence of strong justice systems.
The justice system only works if most people believe that it mostly generates mostly just outcomes. When people stop believing in the inherent justice of the outcomes, then people will start exploring other ways to get justice, and/or societal turmoil will erupt. I'll talk about it more in a separate post but a justice system and a national defense are pretty much the unifying pillars of a nation; if either fails, the nation will eventually collapse.
So we have someone convicted of doing something bad. Let's stipulate that police did their job more or less properly and that courts did their job more or less properly and that more or less everyone agrees that the thing the person did was bad. There was a unanimous jury verdict, and let's stipulate that most people think it was a just verdict. This is where the "punishment" officially begins.
I say "officially" because oftentimes all the conditions I stipulated weren't true, and that refusing bail or setting too high of a cash bail can turn the pre-trial incarceration into the point of the exercise, and we've seen a rise in this (or at least a rise in awareness of this) over the last decade. Jail before trial is supposed to be used to ensure that the person will show up for trial. It might also be used for protecting society from someone with no impulse control. But it's not SUPPOSED to be a punishment. Likewise interrogations are not "punishment" in the sense that the purpose is to elicit information, not to punish. Punishment is what happens after the verdict. I'll discuss the lawfare and pre-trial stuff later.
Punishment variously accomplishes the following goals:
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Retribution. There is a revenge element to justice. If someone hurts you, it's human to want them hurt back [^1]. So part of punishment is designed to show, publicly, that the person who did the bad thing got their comeuppance. By managing this in the justice system we prevent individuals mistakenly punishing the wrong people (with a margin of error that we should try to minimize). Surprisingly, most people I've spoken with either haven't thought about it or are reticent to acknowledge that the very human concept of "fairness" requires something like revenge. We just systematize it and try to be as fair and consistent as possible. And it's the PRIMARY output of the justice system, being the visible demonstration that justice was served.
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Deterrent. Punishment serves as a disincentive to people for acting inappropriately, when they can be disincentivized. If you are rational enough to consider the likelihood of getting caught and severity of the punishment in your calculus before violating a law, then the severity of the punishment might serve to dissuade some people. Personally I don't think that the severity has much to do with deterrence; I think that there's probably a relatively low bar of "the punishment sucks bad enough that I won't do the crime". I think that most people who commit crimes are not acting rationally- they are either insane (serial killers), or temporarily insane (murder someone in a fit of rage), or are incompetent or desperate or both (robbing a gas station with cameras all over the place), and that accurately assessing likelihood of getting caught and weighing pros and cons doesn't figure into the decision. But if it DOES figure into the decision, my opinion is that it doesn't take much to dissuade someone who can be dissuaded. I think that increasing the likelihood of getting caught is far more effective as a deterrent.
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Safety. Punishment can be used to separate offenders from potential victims. I think this is where we really should think about length of sentence. Our legal system (more or less) associates longer prison sentences with crimes that caused more harm. This seems natural, but what it means is that we're using length of sentence more for revenge than for protection. I think that as a society we should consider having relatively low "minimum" sentences (as low as can be considered "just"), but have modifiers to keep people in prison until they are unlikely to commit the same crime again. For crimes with high recidivism (e.g. sexual violence) we might have what seem like "unfairly" long sentences, because we're trying to prevent more victims.
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Rehabilitation. Punishment can be used to rehabilitate offenders. Personally I'm not a big fan of this idea because I think that the insane and incompetent can't be rehabilitated, but many people think it is an important part of a fair justice system, and if we can do it economically and effectively, I'm not opposed. I would say that "rehabilitation" should mostly be about ensuring that the prisoner is provided opportunities to learn skills that they will need to live a normal life and support themselves after prison. For instance, bringing their education standards up to a high school diploma level, learning to manage money, self-discipline, etc. And it should be as realistic as possible, not just classroom, but make an economy inside the prison that functions similarly to one outside the prison, so you have to work to earn money, and you have to pay for food, clothing, rent, etc. Not necessarily real money and not necessarily in a form that would facilitate a black market, but real enough that the practice prepares the inmate for post-incarceration life. I also would support training programs for trades and maybe even apprenticeship programs with local businesses in cases where the inmate is unlikely to pose a public safety risk.
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Restoration. Punishment can be used to attempt to make the victim whole by paying restitution. This is much more common for property crime and much less common for violent crime.
Anyway those are my basic thoughts on punishment. But this led me to some unexpected conclusions:
- I think that the death penalty is more about revenge than about deterrence; in fact I believe it has very little deterrent effect because I think that most people who commit death penalty eligible crimes are not likely to have been making rational, sane decisions.
- I think that we should have relatively low prison sentences, perhaps offset by more restitution, but that the length of the sentence should be scaled to the likelihood of re-offense, taking into account the nature of the crime and the history of the offender.
- I think that prison, to the extent that it's possible to do so, should model external society, particularly economically (in a highly controlled way) in an effort to impart the practical skills necessary to stay out of prison after release.
This post has been more for me to organize my thoughts than for you. I've tried to mostly stay away from moral judgment and focus on the practical.