When the Punishment Does Not Fit the Crime

By Seth Stancroff 

Do many capitalist societies today impose relatively harsher punishments for crimes committed by individuals of low socioeconomic status? If so, how does this fact affect popular theories of just punishment?

It would seem that many of these theories (such as retribution, deterrence and rehabilitation) must fail when applied to these societies. That this really is the case can be illustrated with a simple example:

Two individuals commit the exact same crime in the same American city: they both crash into parked cars while driving under the influence of alcohol. Both of these crimes result in the exact same amount of damage, the levels of intoxication are the same between the two offenders, and this is the first offense committed by either person. 

However, one of these individuals is a high-powered businessman and the other is a middle-aged, relatively poor single woman with no living relatives and two young children. Both individuals are arrested and brought to the police station where they are put in jail with bail set at $5,000. The man immediately bails himself out and hires a team of experienced defense attorneys. 

The single mother, on the other hand, is too poor to post bail herself and knows no one who could help her. Because she is forced to sit in jail for the weeks preceding her trial, she loses both of her jobs which had been the only sources of income for her family. When the trials roll around, the man’s attorneys convince the judge and jury that he should not be held responsible for his action, and he is given only a fine. However, the publicly-appointed defense attorney for the woman, perhaps too over-worked to have been able to consider her case carefully, fails to offer any convincing defense on her behalf. She is sentenced to three years in prison.

I think it should be clear that in this case, the theory of retribution fails to offer a legitimate justification of punishment. Because the offenders in the story are given extremely different punishments for the same crime, at least one (or both) has been given a punishment that, morally speaking, breaks from the jus talionis, or “eye for an eye” principle and thus does not serve any kind of true retribution. In this case it is likely that both punishments would be considered morally inappropriate. One on hand, the woman in the example is punished before she is even found guilty of a crime by being forced to stay in jail as a result of her inability to post bail. On the other, the wealthy man is given a more lenient punishment only because of the resources to which he has access.

How about deterrence? Jeremy Bentham asserts that “General prevention ought to be the chief end of punishment, as it is its real justification.” Turning back to the example offered above, it becomes clear how Bentham’s deterrence model fails to justify punishments in capitalist societies in which punishments are functions of economic class. The man’s punishment in the hypothetical case would challenge Bentham’s idea that punishments should prevent future crimes from being committed because it would surely allow other wealthy people in the society to think that as long as they can hire expensive attorneys, they will be able to behave recklessly without much consequence. On the whole, a deterrence theory of punishment would not be able to explain how, for wealthier people who get relatively lenient punishment, those punishments have any deterring effects.

Finally, the rehabilitation theory maintains that punishment should include measures aimed at reforming offenders. That is, in giving punishments, societies should keep in mind the ways in which the punishments will allow offenders to change themselves or be changed so they can peacefully re-enter society. Plato conceives of punishment in such a way; he imagines that to suffer punishment is to suffer some good, and evading punishment is often a worse path to go down. Interestingly, it seems that when punishment practices are functions of class, wealthier people who can pay their way out of punishments are actually deprived of opportunities to reform. The man in the above example surely should have had a chance to think about the harms he caused through his crime, and would, for rehabilitation theorists, have been made better off had he had such opportunities.

All this paints a rather dismal picture of punishment and the attempts to morally justify it in the real world. But what would happen if certain measures were put in place in these capitalist societies that guarantee a fair system of punishment? For example, what if cash bail were determined in a manner proportional to the offender’s income (or simply abolished)? What if every defendant were required to use state-appointed attorneys, and what if implicit biases against poorer people were accounted for? It seems that if all these kinds of issues could truly be taken care of (and whether this is even possible is certainly up for debate), punishment would perhaps not exist as a function of economic class.

However, even if all this came to pass, it still would not mean that society’s response to crime would escape the influence of socioeconomic status. That is, even if the processes surrounding punishment were made completely just and equal, the social and economic inequalities that can lead individuals to commit crimes would still exist. This fact alone would still lead to sections of the population committing certain kinds of crimes in greater proportions than others, and being punished for it. For this reason, it seems that before punishment can truly become morally justifiable in capitalist societies, the social circumstances that lead individuals into confrontations with those institutions as well as the institutions surrounding punishment also have to be made just.

Environmental Ethics and Climate Change

Posted by Keith Tidman

The signals of a degrading environment are many and on an existential scale, imperilling the world’s ecosystems. Rising surface temperature. Warming oceans. Sinking Greenland and Antarctic ice sheets. Glacial retreat. Decreased snow cover. Sea-level rise. Declining Arctic sea ice. Increased atmospheric water vapour. Permafrost thawing. Ocean acidification. And not least, supercharged weather events (more often, longer lasting, more intense).

Proxy (indirect) measurements — ice cores, tree rings, corals, ocean sediment — of carbon dioxide, a heat-trapping gas that plays an important role in creating the greenhouse effect on Earth, have spiked dramatically since the beginning of the Industrial Revolution. The measurements underscore that the recent increase far exceeds the natural ups and downs of the previous several hundred thousand years. Human activity — use of fossil fuels to generate energy and run industry, deforestation, cement production, land use changes, modes of travel, and much more — continues to be the accelerant.

The reports of the United Nations’ Intergovernmental Panel on Climate Change, contributed to by some 1,300 independent scientists and other researchers from more than 190 countries worldwide, reported that concentrations of carbon dioxide, methane, and nitrous oxides ‘have increased to levels unprecedented in at least 800,000 years’. The level of certainty of human activity being the leading cause, referred to as anthropogenic cause, has been placed at more than 95 percent.

That probability figure has legs, in terms of scientific method. Early logical positivists like A.J. Ayer had asserted that for validity, a scientific proposition must be capable of proof — that is, ‘verification’. Later, however, Karl Popper, in his The Logic of Scientific Discovery, argued that in the case of verification, no number of observations can be conclusive. As Popper said, no matter how many instances of white swans we may have observed, this does not justify the conclusion that all swans are white. (Lo and behold, a black swan shows up.) Instead, Popper said, the scientific test must be whether in principle the proposition can be disproved — referred to as ‘falsification’. Perhaps, then, the appropriate test is not ability to prove that mankind has affected the Earth’s climate; rather, it’s incumbent upon challengers to disprove (falsify) such claims. Something that  hasn’t happened and likely never will.

As for the ethics of human intervention into the environment, utilitarianism is the usual measure. That is to say, the consequences of human activity upon the environment govern the ethical judgments one makes of behavioural outcomes to nature. However, we must be cautious not to translate consequences solely in terms of benefits or disadvantages to humankind’s welfare; our welfare appropriately matters, of course, but not to the exclusion of all else in our environment. A bias to which we have often repeatedly succumbed.

The danger of such skewed calculations may be in sliding into what the philosopher Peter Singer coined ‘speciesism’. This is where, hierarchically, we place the worth of humans above all else in nature, as if the latter is solely at our beck and call. This anthropocentric favouring of ourselves is, I suggest, arbitrary and too narrow. The bias is also arguably misguided, especially if it disregards other species — depriving them of autonomy and inherent rights — irrespective of the sophistication of their consciousness. To this point, the 18th/19th-century utilitarian Jeremy Bentham asserted, ‘Can [animals] feel? If they can, then they deserve moral consideration’.

Assuredly, human beings are endowed with cognition that’s in many ways vastly more sophisticated than that of other species. Yet, without lapsing into speciesism, there seem to be distinct limits to the comparison, to avoid committing what’s referred to as a ‘category mistake’ — in this instance, assigning qualities to species (from orangutans and porpoises to snails and amoebas) that belong only to humans. In other words, an overwrought egalitarianism. Importantly, however, that’s not the be-all of the issue. Our planet is teeming not just with life, but with other features — from mountains to oceans to rainforest — that are arguably more than mere accouterments for simply enriching our existence. Such features have ‘intrinsic’ or inherent value — that is, they have independent value, apart from the utilitarianism of satisfying our needs and wants.

For perspective, perhaps it would be better to regard humans as nodes in what we consider a complex ‘bionet’. We are integral to nature; nature is integral to us; in their entirety, the two are indissoluble. Hence, while skirting implications of panpsychism — where everything material is thought to have at least an element of consciousness — there should be prima facie respect for all creation: from animate to inanimate. These elements have more than just the ‘instrumental’ value of satisfying the purposes of humans; all of nature is itself intrinsically the ends, not merely the means. Considerations of aesthetics, culture, and science, though important and necessary, aren’t sufficient.

As such, there is an intrinsic moral imperative not only to preserve Earth, but for it and us jointly to flourish — per Aristotle’s notion of ‘virtue’, with respect and care, including for the natural world. It’s a holistic view that concedes, on both the utilitarian and intrinsic sides of the moral equation, mutually serving roles. This position accordingly pushes back against the hubristic idea that human-centricism makes sense if the rest of nature collectively amounts only to a backstage for our purposes. That is, a backstage that provides us with a handy venue where we act out our roles, whose circumstances we try to manage (sometimes ham-fistedly) for self-satisfying purposes, where we tinker ostensibly to improve, and whose worth (virtue) we believe we’re in a position to judge rationally and bias-free.

It’s worth reflecting on a thought experiment, dubbed ‘the last man’, that the Australian philosopher Richard Routley introduced in the 1970s. He envisioned a single person surviving ‘the collapse of the world system’, choosing to go about eliminating ‘every living thing, animal and plant’, knowing that there’s no other person alive to be affected. Routley concluded that ‘one does not have to be committed to esoteric values to regard Mr. Last Man as behaving badly’. Whether Last Man was, or wasn’t, behaving unethically goes to the heart of intrinsic versus utilitarian values regarding nature —and presumptions about human supremacy in that larger calculus.

Groups like the UN Intergovernmental Panel on Climate Change have laid down markers as to tipping points beyond which extreme weather events might lead to disastrously runaway effects on the environment and humanity. Instincts related to the ‘tragedy of the commons’ — where people rapaciously consume natural resources and pollute, disregarding the good of humanity at large — have not yet been surmounted. That some other person, or other community, or other country will shoulder accountability for turning back the wave of environmental destruction and the upward-spiking curve of climate extremes has hampered the adequacy of attempted progress. Nature has thrown down the gauntlet. Will humanity pick it up in time?

Is Torture Morally Defensible?

Posted by Keith Tidman

Far from being unconscionable, today one metric of how societies have universalised torture is that, according to Amnesty International, some 140 countries resort to it: whether for use by domestic police, intelligence agencies, military forces, or other institutions. Incongruously, many of these countries are signatories to the United Nations Convention Against Torture, the one that forbids torture, whether domestic or outsourced to countries where torture is legal (by so-called renditions).

Philosophers too are ambivalent, conjuring up difficult scenarios in which torture seems somehow the only reasonable response:

An anarchist knows the whereabouts of a powerful bomb set to kill scores of civilians.

A kidnapper has hidden a four-year-old in a makeshift underground box, holding out for a ransom.

Or perhaps an authoritarian government, feeling threatened, has identified the ringleader of swelling political street opposition, and wants to know his accomplices’ names. Soldiers have a high-ranking captive, who knows details of the enemy’s plans to launch a counteroffensive. A kingpin drug supplier, and his metastasized network of street traffickers, routinely distributes highly contaminated drugs, resulting in a rash of deaths...

Do any of these hypothetical and real-world events, where information needs to be extracted for urgent purposes, rise to the level of resorting to torture? Are there other examples to which society ought morally consent to torture? If so, for what purposes? Or is torture never morally justified?

One common opinion is that if the outcome of torture is information that saves innocent lives, the practice is morally justified. I would argue that there are at least three aspects to this claim:

• the multiple lives that will be saved (traded off against the fewer), sometimes referred to as ‘instrumental harm’; 
• the collective innocence, in contrast to any aspect of culpability, of those people saved from harm; and
• the overall benefit to society, as best can credibly be predicted with information at hand.

The 18th-century philosopher Jeremy Bentham’s famous phrase that ‘It is the greatest good for the greatest number of people which is the measure of right and wrong’ seems to apply here. Historically, many people have found, rightly or not, that this principle of ‘greatest good for the greater number’ rises to the level of common sense, as well as proving simpler to apply in establishing one’s own life doctrine than from competitive standards — such as discounting outcomes for chosen behaviours.

Other thinkers, such as Joseph Priestley (18th century) and John Stuart Mill (19th century), expressed similar utilitarian arguments, though using the word ‘happiness’ rather than ‘benefit’. (Both terms might, however, strike one as equally cryptic.) Here, the standard of morality is not a rulebook rooted in solemnised creed, but a standard based in everyday principles of usefulness to the many. Torture, too, may be looked at in those lights, speaking to factors like human rights and dignity — or whether individuals, by virtue of the perceived threat, forfeit those rights.

Utilitarianism has been criticised, however, for its obtuse ‘the ends justify the means’ mentality — an approach complicated by the difficulty of predicting consequences. Similarly, some ‘bills of rights’ have attempted to provide pushback against the simple calculus of benefiting the greatest number. Instead, they advance legal positions aimed at protecting the welfare of the few (the minority) against the possible tyranny of the many (the majority). ‘Natural rights’ — the right to life and liberty — inform these protective constitutional provisions.

If torture is approved of in some situations — ‘extreme cases’ or ‘emergencies’, as society might tell itself — the bar in some cases might lower. As a possible fast track in remedying a threat — maybe an extra–judicial fast track — torture is tempting, especially when used ‘for defence’. However, the uneasiness is in torture turning into an obligation — if shrouded in an alleged moral imperative, perhaps to exploit a permissive legal system. This dynamic may prove alluring if society finds it expeditious to shoehorn more cases into the hard-to-parse ‘existential risk’.

What remains key is whether society can be trusted to make such grim moral choices — such as those requiring the resort to torture. This blurriness has propelled some toward an ‘absolutist’ stance, censuring torture in all circumstances. The French poet Charles Baudelaire felt that ‘Torture, as the art of discovering truth, is barbaric nonsense’. Paradoxically, however, absolutism in the total ban on torture might itself be regarded as immoral, if the result is death of a kidnapped child or of scores of civilians. That said, there’s no escaping the reality that torture inflicts pain (physical and/or mental), shreds human dignity, and curbs personal sovereignty. To some, many even, it thus must be viewed as reprehensible and irredeemable — decoupled from outcomes.

This is especially apparent if torture is administered to inflict pain, terrorise, humiliate, or dehumanise for purposes of deterrence or punishment. But even if torture is used to extract information — information perhaps vital, as per the scenarios listed at the beginning — there is a problem: the information acquired is suspect, tales invented just to stop pain. Long ago, Aristotle stressed this point, saying plainly: ‘Evidence from torture may be considered utterly untrustworthy’. Even absolutists, however, cannot skip being involved in defining what rises to the threshold of clearer-cut torture and what perhaps falls just below — grist for considerable contentious debate.

The question remains: can torture ever be justified? And, linked to this, which moral principles might society want to normalise? Is it true, as the French philosopher Jean-Paul Sartre noted, that ‘Torture is senseless violence, born in fear’? As societies grapple with these questions, they reduce the alternatives to two: blanket condemnation of torture (and acceptance of possible dire, even existential consequences of inaction); or instead acceptance of the utility of torture in certain situations, coupled with controversial claims about the correct definitions of the practice.

I would argue one might morally come down on the side of the defensible utility of the practice — albeit in agreed-upon circumstances (like some of those listed above), where human rights are robustly aired side by side with the exigent dangers, potential aftermaths of inertia, and hard choices societies face.