Replies to This Discussion

Permalink Reply by Kris Feenstra on November 21, 2010 at 6:52pm

My personal views start with a fairly basic statement: My primary demand of a justice system is that it serves a functioning society and the security of it's members against undue harm.

That is really just a guiding principle. In practice, nothing is quite that simple. However, the reason I bring it up is that I am only interested in things that make productive contributions to society. From my perspective, the question becomes 'Does punishment as a means of law enforcement make a positive contribution to society?'

I don't have a simple or satisfactory answer. The most common argument I hear in favor of punishing law-breakers is that it acts as a disincentive. For misdemeanors and petty crimes, I might agree. The possibility of a fine or arrest may deter people from committing or repeating small offenses with high frequency. It's not really ideal though. The reason I don't shatter speed limits, for example, is not because I might get a ticket, but rather because driving at inappropriate speeds may cause a severe accident and injury. Without that line of reasoning supporting my decision, I have no motive to obey the law unless I am afraid that I am going to get caught. Most of the time, I know won't get caught.

I don't think 'fear of getting caught' is a healthy way for a society to set up its legal system. It takes laws from a set of principles that can be reasonably considered and adhered to or appealed, and reduces them to pure dogma. Handing out punishments like speeding tickets certainly has pragmatic value, and it does address a certain amount of undesirable driving behavior, but I only agree with it when attempts are also made to educate people about the laws which they are expected to obey.

Another issue I have with using punishment as a deterrent for committing crimes is that it assumes that the potential criminal is going to make some sort of rational cost-benefit analysis before deciding on a future course of action. In many cases, the motivation and compulsion to commit a crime outweighs the consideration for consequences. If t didn't, people wouldn't be committing crimes. Perhaps the motivation to commit the crime is overdeveloped, or perhaps the ability to assess the consequences is underdeveloped. For someone who actually commits an offense, and is convicted of a crime, they may be punished in hopes of reformation. I question if this approach really takes an honest look at why people are committing crimes to begin with. I'd wager that it's different on a case by case basis. Perhaps there are sociological, psychological or biological problems that need to be addressed. Does incarceration typically address these issues?

In saying that, I accept a few of things. The funds and resources in most current systems don't exist to do an in-depth analysis and treatment of every single convict. It is also possible that not every convict can be reformed. I am also aware that there are programs in prisons that focus on reforming inmates so that they can be productive members of society. On the first and second points I am not arguing that we should be providing in-depth treatment to every prisoner; I am simply suggesting that we don't waste energy on punishment for the sake of punishment. On the third point, the programs that I've seen for reforming inmates weren't punitive.


When it comes to punitive justice, there is also a moral issue (of sorts) to be considered. Some believe that we have the moral authority to punish others. Some believe that criminals owe a debt to society and to those they have wronged.

In terms of having the moral authority to judge and punish others, that really doesn't work for me. My problem, for instance, with a pedophile isn't that he desires sexual activity with children; my problem is that this sexual activity harms children. My sole interest in incarcerating a pedophile is to protect children. On an emotional level, pedophilia repulses me, but I don't consider emotional repulsion a rational basis for forming laws. If it was, I'd outlaw Sarah Palin speaking in public. I don't know what compels a pedophile to engage in such antisocial behavior. I'm pretty willing to entertain the notion that your average pedophile is fucked up in the head beyond their will. Who would choose that?

Who would choose to be born disenfranchised in gangland? Who would choose to be born into an abusive family? Who would choose to have the L version of MAO-A? To have psychopathic antisocial personality disorder? (and so on). I am not suggesting that such conditions completely account for criminality or offer up absolute excuses for individual behavior. I am stating that we can't universally boil criminality down to an issue of choosing between right an wrong. I am stating that moral judgment is most likely misguided in creating a justice system.

The other point I raised was that of punishment to pay a debt. It seems to be that incarceration only increases a person's debt to society. From arrest, to conviction, to execution of sentence, the whole process is expensive. It is also an insufficient means of paying back those directly wronged. It doesn't reverse time or undo any harm done. Punitive measures for this purpose seem vindictive to me. Don't get me wrong, if anyone tried to harm my family, I'd probably want to tear them limb from limb myself, but I assure you that I wouldn't be in a rational frame of mind at the time. Again, such emotions are not a rational basis for law.

So, after all that rambling, what is my point? I am really addressing only one thing, which is a mind set. I disagree with the mind set that there needs to be any significant focus on punishing criminals in the law enforcement process. This mindset seems outmoded, nonproductive and irrational.

My point is also that I wanted to kill some time this afternoon. Mission accomplished! I'm going to shut up for now and get some coffee.

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Permalink Reply by Kris Feenstra on November 23, 2010 at 4:11pm

It is complicated issue -- an issue for which there are likely no perfect answers or solutions. It is also an issue steeped in politics, rhetoric, emotions and taboo, and I think that is causing a lot of damage to society.

People are being led around by the nose with 'getting tough on crime', the 'war on drugs' or media fear mongering (and so on). Tragically, there is real human suffering beneath all the glossy slogans and spin. The point that some people cannot control sociopathic impulses and might not ever be able to be rehabilitated is also a part of that human suffering. When we talk about 'justice', we are talking about something that profoundly impacts people's lives. I think we owe it to ourselves to dispel myths and approach the subject with rationality and compassion.


I do not believe in punishment as a moral obligation although I can see how evolutionarily, punishing transgressor has a social role of maintaining cohesion. Animals sort of do that too, for example, in bands of apes, or wolf packs, etc.

I have seen at least one documentary covering some of this behavior in chimpanzees. It was interesting to see the complexity of the social interaction. Essentially, the transgressor had to atone by lowering himself before the dominant male, and (if I recall correctly) had to kiss his hand in a gesture of submission.

If we were still living in more definitively tribal communities, I'd think my considerations would be quite different. The resources, needs and expectations of such a community would probably be different. It is possible that some of our concepts on justice are the product of hardwired, evolutionary traits. This seems like one more reason for us to actively focus on rationality in the pursuit of justice, as an intuitive approach might not serve modern societies so well.

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Permalink Reply by Loop Johnny on November 23, 2010 at 2:17pm

Do not focus on punishing the law breakers. ( emotional thinking -> short term/revenge )
Focus on repairing the damage caused; rehabilitating the convicts. ( rational thinking -> long term perspective )

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Permalink Reply by Arcus on March 15, 2011 at 1:40pm

I fully support Loop.

My answer to Judith's question is that we should attempt to rehabilitate the offender while incarcerated to ensure that once released back into society he can rejoin as a productive member and not reoffend. The horrible act has been commited, and it is impossible to reverse. Rape is about violence (it is not a sexual act) and violence is most often the expression of deeper psychological issues which may be treated.

The pursuit of revenge is much effective in reducing crime than rehabilitating the offender. As for evidence, the least violent societies are generally among those with the most liberal treatment of convicts.

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Permalink Reply by Malcolm on November 24, 2010 at 11:21am

I think you're underestimating the deterrence value of speeding tickets. While it's probably true that you, like almost everyone else, routinely exceed the speed limit despite it being well-known and clearly indicated, this is most likely not due to the ineffectiveness of the law's deterrence so much as the infrequency of its enforcement. Virtually everywhere, the effective speed limit is a bit above the posted limit, and one knows that if you drive a little above the posted limit, there's practically zero chance you'll get ticketed, since everyone else is driving at the same speed. OTOH, if you exceed the limit by a good margin, and yet not so much that driving becomes truly dangerous, you'll run a real risk of being ticketed, and this is what likely holds you back.

Certainly, on most highways in the US the speed limits could be safely raised - on stretches where they now are 65 they were for a long time only 55 and weren't any more hazardous then. I drove in Germay earlier this year, where I was getting passed on a 2-lane highway because I was only doing 150 km/hr (that's almost 100 mph), in a blizzard, I might add. So US speed limits are not so high now that you need fear exceeding them for safety's sake (depending on what you're driving, I suppose).

OTOH, I only received a speeding ticket once, doing 82 in a 65 zone. Subsequently, every time I drive on that stretch of road now, I make sure to slow down to 72 or less, so as to avoid getting pulled over. The deterrent is obviously effective, at least to the extent that it is chosen to be.

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Permalink Reply by Kris Feenstra on November 24, 2010 at 3:43pm

I think you've misunderstood my position on speeding tickets. I agree that they have deterrent value. I was citing it as an example of punishments that do inhibit unlawful activity.

The fact of the matter is, law enforcement agencies will always have limited resources for enforcing speed limit laws, and every driver knows this. Just because the police can't enforce the law everywhere at once doesn't mean that the law is not equally applicable in all regions. The rationale behind the law still stands. If someone objects to, or willingly disobeys the law, ideally they should object to it rationally, not based on whether or not they will be caught.

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Permalink Reply by Kris Feenstra on November 22, 2010 at 2:01pm

From Psychology Today

Satoshi Kanazawa (author) is an evolutionary psychologist at LSE

While politicians and policymakers everywhere, such as Rudolph Giuliani as Mayor of New York City, took inappropriate credit for the falling crime rates during the 1990s, the decreased crime rates had very little (if anything) to do with greater imprisonment rates, tougher law enforcement, or anything the politicians implemented. Crime rates went down in the 1990s simply because the baby boomers “aged out.” They became too old (and, as I explain in another post, too married) to commit crimes. Some criminologists indeed predicted the fall of crime rates in the 1990s before it happened. Second, recidivism always goes up as a necessary consequence of falling crime rates. As the developmental psychologist Terrie E. Moffitt explains in her classic 1993 article in Psychological Review, there are roughly two types of criminals: adolescence limited and life-course persistent. The adolescence limiteds comprise the vast majority of criminals at any given time, and this is the type of criminals that I discuss in my previous series on criminals. They become increasingly delinquent, violent, and criminal in their late adolescence and early adulthood, then begin to desist from crime in late adulthood into their middle ages, as they get married, settle down, and switch to more conventional ways of life. The life-course persistents, on the other hand, are commonly known as “career criminals.” As the name implies, they do not age out of their criminality, and continue to commit crimes throughout most of their lives. This excellent figure from Moffitt’s 1993 article elucidates her argument.

While many men follow the life trajectories of the adolescence limiteds, the life-course persistents (career criminals) are a genetically distinct type. The late great behavior geneticist Linda Mealey estimated that sociopaths, who are prone to commit crimes because they are incapable of feeling remorse or empathize with others’ pain, comprise about 3-4% of the male population and less than 1% of the female population. The sociopaths nonetheless account for about 20% of the US prison population, and between 33% and 80% of chronic criminal offenders, many of whom are Moffitt’s life-course persistents.

The sociopaths are genetically distinct from the rest of the population, and their prevalence does not vary by social factors, such as the population age structure. As the proportion of adolescence limiteds decreases among the criminals due to the changing population age structure (because there are relatively fewer young men), the proportion of life-course persistents among them must necessarily rise. Since it is the life-course persistents (career criminals) who are most likely to experience recidivism, by returning to prison again and again, there must exist a necessary inverse relationship between crime rates (which are largely set by the number of adolescence limiteds) and the recidivism rates (which are largely set by the number of life-course persistents). So regardless of how tough the law enforcement or how effective the prison system, the lower the crime rates, the higher the recidivism rates in any society at any time. You can have one or the other, but not both at the same time.

One important implication of Moffitt’s groundbreaking work is that all attempts to “rehabilitate” criminals in prisons are doomed to failure. Adolescence limiteds will age out of crime when they are sufficiently old and married anyway, whether they go to prison or not. Life-course persistents will continue to commit crime their entire lives because they are genetically inclined to do so, whether they go to prison or not.

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Permalink Reply by Kris Feenstra on November 22, 2010 at 2:17pm

Bureau of Justice Statistics

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Permalink Reply by Reggie on November 23, 2010 at 1:25pm

Interesting topic. I am now fearful to disagree with you, though. Nothing could be worse than death by Glenn Beck.

I'll have to think about this. Rationally, I don't think punishment serves any purpose in cases where there is no concern over recidivism due to a life sentence with no parole. I know that the history of incarceration is not steeped in the notion of rehabilitation. But, the human animal is very tuned into notions of justice, fairness, and punishment due to our socialibilty. And that a killer is comfortably and happily incarcerated offends my notion of justice, especially if the victim is a loved one of mine. I can certainly see why Biblical justice was and still is popular with many.

Hmm. So many things to ponder.

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Permalink Reply by Reggie on November 23, 2010 at 1:32pm

Here is something I find interesting, if true.

The United States Department of Justice tracked the rearrest, re-conviction, and re-incarceration of former inmates for 3 years after their release from prisons in 15 states in 1994.[10] Key findings include:

Released prisoners with the highest rearrest rates were robbers (70.2%), burglars (74.0%), larcenists (74.6%), motor vehicle thieves (78.8%), those in prison for possessing or selling stolen property (77.4%), and those in prison for possessing, using, or selling illegal weapons (70.2%).
Within 3 years, 2.5% of released rapists were arrested for another rape, and 1.2% of those who had served time for homicide were arrested for homicide. These are the lowest rates of re-arrest for the same category of crime.
The 272,111 offenders discharged in 1994 had accumulated 4.1 million arrest charges before their most recent imprisonment and another 744,000 charges within 3 years of release.

http://en.wikipedia.org/wiki/Recidivism

I am surprised by the low rates for sex crimes. I had thought that the recidivism rates would be much, much higher. It makes me wonder if we have a national registry for sex offenders simply because of some high profile cases where a convicted rapist targeted a child. I know that many harsh laws are driven by specific crimes against children and are politically exepedient.

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Permalink Reply by Matt Coulthurst on November 23, 2010 at 3:02pm

It is worth noting that these are re-arrest rates, not rates of re-offending.

Two things spring to mind - how many rapists or murderers were re-arrested for any crime, rather than just a same-category one? There is no mention in the article about the robbers, et al, being re-arrested for a same-category crime.

Secondly I wonder how many of the rapists and murderers were diagnosed psychopaths compared to the other listed crime-types. From the same wikipedia link:

"Findings indicate psychopathic prisoners have a 2.5 time higher probability of being released from jail than undiagnosed ones, even though they are more likely to recidivate.[7]

It has been shown that punishment and behavior modification techniques do not improve the behavior of a psychopath. Psychopathic individuals have been regularly observed to become more cunning and better able to hide their behaviour. It has been suggested that traditional therapeutic approaches actually create psychopaths, if not worse, then far more adept at manipulating others and concealing their behavior. They are generally considered to be not only incurable but also untreatable.[8]

Psychopaths also have a markedly distorted sense of the potential consequences of their actions, not only for others, but also for themselves. They do not, for example, deeply recognize the risk of being caught, disbelieved or injured as a result of their behaviour."

A higher incidence of psychopathy amongst rapists and murderers might help explain lower re-arrest rates as they learn to hide their behaviour.

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Permalink Reply by Reggie on November 23, 2010 at 3:36pm

It is worth noting that these are re-arrest rates, not rates of re-offending.

But, it is also worth noting that you can't capture the latter and must rely on the former. Unless a large percentage of people have managed to figure out how to commit the perfect crime and perpetually silence their victims, making the arrest rates highly unreliable data.

There is no mention in the article about the robbers, et al, being re-arrested for a same-category crime.

The source link is broken, so I can't be sure, but based on the context of the article, the rates are all for same category crimes. Also, recidivism is defined by repitious behavior, which I would see as a cause of being arrested (the result) rather than getting arrested as the behavior.

Secondly I wonder how many of the rapists and murderers were diagnosed psychopaths compared to the other listed crime-types

I think (speculate, really) that psychopaths have a high rate of sexual dysfunction or malfunction/obsession, if you will, but only make up a very small percent of sex offenders. How rare are psychopaths, anyway?

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