Before discussing justice from the standpoint of rationality, we need to agree on the goals of justice. Are they to prevent crimes, to punish those convicted, to provide relief to the victims (monetary, by injunction, or by feeling vengeance has been done), to ensure laws are implemented, or to create other second-order effects on society by being seen to enforce moral standards? And how should these goals be balanced?
In my opinion, the main contribution a group of rationalists could make to criminal justice reform is to point out that, under certain plausible assumptions about goals, some policies are strictly counterproductive.
For example, most academics who use quantitative studies to investigate the effect of jail sentences find that jail time increases recidivism rates. In other words, putting someone in jail makes them likely to commit more total crimes over the rest of their life as compared to simply being released immediately. This is one decent paper on this topic that isn’t behind a paywall; Professor Ian Shapiro at Yale University can refer you to more recent, more damning papers. If you believe this evidence, it follows that pushing long jail sentences to cause specific deterrence is flat-out irrational, and should be discontinued.
Likewise, jail time is highly unlikely to “make victims whole,” nor does it seem especially well-suited to this task. I am not aware of any evidence showing that victims claim, in surveys, that having criminals in jail makes them more whole, let alone that said victims enjoy objectively healthier, happier, or more successful lives when perps are in jail. The Athenian system described in one of the other comments here, in which prosecutors (or perhaps even victims) propose a punishment, seems like it would strictly dominate a strategy that basically said “let’s put X in a box and force him to do nothing.” Making people do nothing, at best, causes nothing to happen. To me, at least, this seems like the sort of insight that is available to rationalists and useful to the outside world even if we can’t agree on how to trade off one goal against another.
Jail sentences are hurtful as they are now; but we also have the option of changing the jails themselves. The constraint of “keeping people outside normal society” allows for many variations.
As one example, there is the idea of penal cities, for convicts not considered immediately dangerous to other people (i.e. not serial murderers). They could perhaps use a hi-tech method of tracking and monitoring all inmates to provide an experience both more pleasant and more productive than ordinary jails.
Also, are you aware of studies like the ones you describe for countries other than the US? I often hear anecdotal evidence on the net about US jails being specially bad in many respects.
A guy in my apartment complex was pulled over on suspicion of DUI. He had the flu at the time was never given a sobriety or BAC test. (He’s also an immigrant from South America, which probably doesn’t help around here.) However, until his hearing before the judge, he had to have an ignition sobriety lock installed on his car which requires him to take a breath test when he starts up and then periodically, or else it slows down and stops.
I’d count that as pretty “creative”, and not something I thought was even done anywhere (unusual). And it gets into “cruel” territory since the guys that install it are lax about the battery quality of the device putting you at a huge risk of being stranded.
(yes, that means I made a new acquaintance and hit it off well enough to drive around with him, blah blah blah)
NOTE: I don’t know US law at all well, I don’t know how the passage is currently interpreted, I just know how I feel about the concept in and of itself.
There’s good reason IMO to ban “cruel and unusual punishment”
But “cruel and unusual” is as worded, very specific. For a punishment to be “cruel and unusual” you must answer yes to both the following:
is the punishment cruel?
is the punishment unusual? (imprisonment can be quite cruel, but it’s common)
If a law was passed stating that from now on a multitude of crimes were to be punished by the flaying of the left foot of the perpetrator; this would be cruel.
It would not, however, be unusual, because it would be being applied to many people convicted of many crimes. This degree of consistency gives at least some deterrent value to the punishment.
If a judge sentenced someone to the flaying of their left foot, with no other changes in our society going on, that would be cruel AND unusual. It would not serve as a deterrent, because people wouldn’t expect to be tried by that specific judge.
English is generally ambiguous on these matters, when one tries to translate it into more precise logical terms. In the US version of this:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
We can read the last clause as “Cruel and unusual punishments shall not be inflicted.” But it is ambiguous in common use whether this outlaws punishments that are both cruel and unusual, or if it outlaws both cruel punishments and unusual punishments.
Historically, the Supreme Court has interpreted merely cruel punishments as violations of the Eighth Amendment (According to Wikipedia) but I’m not sure about ‘unusual’.
Sure, but it’s just case law, and it’s not necessarily the most popular bit of caselaw, either. If you could actually convince the public that creative sentences were desirable, you could probably get the US Supreme Court to suddenly ‘discover’ that cruel and unusual punishment is referring only to, e.g., “disproportionate” punishments or “outrageous treatment that shocks the conscience.”
For example, most academics who use quantitative studies to investigate the effect of jail sentences find that jail time increases recidivism rates. In other words, putting someone in jail makes them likely to commit more total crimes over the rest of their life as compared to simply being released immediately. This is one decent paper on this topic that isn’t behind a paywall; Professor Ian Shapiro at Yale University can refer you to more recent, more damning papers. If you believe this evidence, it follows that pushing long jail sentences to cause specific deterrence is flat-out irrational, and should be discontinued.
It only follows if you focus on deterring convicted criminals from recidivism. How about deterring people from becoming criminals to start with?
Are you saying that “pushing long jail sentences to cause specific deterrence” should be discontinued (which makes sense, if the specific deterrence is deterring recidivism), or that “pushing long jail sentences” should be discontinued? (which doesn’t follow—you have only provided evidence that long sentences don’t fulfill the goal of deterring recidivism, not that it doesn’t fulfill any other goal)
There may be some other sort of penalty that would both deter recidivism and also deter people from beginning criminality. Corporal punishment, for example.
Protect society by preventing and deterring crime, both in the specific case of the person being prosecuted and others.
Preventing crime includes doing so by preventing bad actors from being around other people who they could kill or maim or whatever other bad thing they like to do.
When possible, make victims whole.
I don’t believe in punishment as valid, but making victims happier has substantial value. So from a societal point of view, I want punishment to have a specific purpose; part of that purpose may be giving victims a sense of justice.
“Ensuring laws are implemented,” strikes me as a second-order question; we want laws to be implemented fairly and equitably to achieve the above goals. Uniform sentencing for similarly-situated bad actors is something that accomplishes crime prevention.
Make more total utilons for society.
(I’m a prosecutor; that doesn’t mean I’m right about any of this.)
(I’m a prosecutor; that doesn’t mean I’m right about any of this.)
Off-topic, but I’ve been dying to ask a prosecutor this: what’s your take on qualified immunity? I don’t understand the rational basis for it; is there something I’m missing?
Before discussing justice from the standpoint of rationality, we need to agree on the goals of justice. Are they to prevent crimes, to punish those convicted, to provide relief to the victims (monetary, by injunction, or by feeling vengeance has been done), to ensure laws are implemented, or to create other second-order effects on society by being seen to enforce moral standards? And how should these goals be balanced?
In my opinion, the main contribution a group of rationalists could make to criminal justice reform is to point out that, under certain plausible assumptions about goals, some policies are strictly counterproductive.
For example, most academics who use quantitative studies to investigate the effect of jail sentences find that jail time increases recidivism rates. In other words, putting someone in jail makes them likely to commit more total crimes over the rest of their life as compared to simply being released immediately. This is one decent paper on this topic that isn’t behind a paywall; Professor Ian Shapiro at Yale University can refer you to more recent, more damning papers. If you believe this evidence, it follows that pushing long jail sentences to cause specific deterrence is flat-out irrational, and should be discontinued.
Likewise, jail time is highly unlikely to “make victims whole,” nor does it seem especially well-suited to this task. I am not aware of any evidence showing that victims claim, in surveys, that having criminals in jail makes them more whole, let alone that said victims enjoy objectively healthier, happier, or more successful lives when perps are in jail. The Athenian system described in one of the other comments here, in which prosecutors (or perhaps even victims) propose a punishment, seems like it would strictly dominate a strategy that basically said “let’s put X in a box and force him to do nothing.” Making people do nothing, at best, causes nothing to happen. To me, at least, this seems like the sort of insight that is available to rationalists and useful to the outside world even if we can’t agree on how to trade off one goal against another.
Jail sentences are hurtful as they are now; but we also have the option of changing the jails themselves. The constraint of “keeping people outside normal society” allows for many variations.
As one example, there is the idea of penal cities, for convicts not considered immediately dangerous to other people (i.e. not serial murderers). They could perhaps use a hi-tech method of tracking and monitoring all inmates to provide an experience both more pleasant and more productive than ordinary jails.
Also, are you aware of studies like the ones you describe for countries other than the US? I often hear anecdotal evidence on the net about US jails being specially bad in many respects.
Currently, the Constitutional prohibition against “cruel and unusual punishment” prevents most U.S. judges from imposing “creative” sentences.
A guy in my apartment complex was pulled over on suspicion of DUI. He had the flu at the time was never given a sobriety or BAC test. (He’s also an immigrant from South America, which probably doesn’t help around here.) However, until his hearing before the judge, he had to have an ignition sobriety lock installed on his car which requires him to take a breath test when he starts up and then periodically, or else it slows down and stops.
I’d count that as pretty “creative”, and not something I thought was even done anywhere (unusual). And it gets into “cruel” territory since the guys that install it are lax about the battery quality of the device putting you at a huge risk of being stranded.
(yes, that means I made a new acquaintance and hit it off well enough to drive around with him, blah blah blah)
NOTE: I don’t know US law at all well, I don’t know how the passage is currently interpreted, I just know how I feel about the concept in and of itself.
There’s good reason IMO to ban “cruel and unusual punishment”
But “cruel and unusual” is as worded, very specific. For a punishment to be “cruel and unusual” you must answer yes to both the following:
is the punishment cruel?
is the punishment unusual? (imprisonment can be quite cruel, but it’s common)
If a law was passed stating that from now on a multitude of crimes were to be punished by the flaying of the left foot of the perpetrator; this would be cruel. It would not, however, be unusual, because it would be being applied to many people convicted of many crimes. This degree of consistency gives at least some deterrent value to the punishment.
If a judge sentenced someone to the flaying of their left foot, with no other changes in our society going on, that would be cruel AND unusual. It would not serve as a deterrent, because people wouldn’t expect to be tried by that specific judge.
I suspect ‘usual’ there meant not “done frequently” but “according to usage or custom”.
English is generally ambiguous on these matters, when one tries to translate it into more precise logical terms. In the US version of this:
We can read the last clause as “Cruel and unusual punishments shall not be inflicted.” But it is ambiguous in common use whether this outlaws punishments that are both cruel and unusual, or if it outlaws both cruel punishments and unusual punishments.
Historically, the Supreme Court has interpreted merely cruel punishments as violations of the Eighth Amendment (According to Wikipedia) but I’m not sure about ‘unusual’.
IANAL.
Sure, but it’s just case law, and it’s not necessarily the most popular bit of caselaw, either. If you could actually convince the public that creative sentences were desirable, you could probably get the US Supreme Court to suddenly ‘discover’ that cruel and unusual punishment is referring only to, e.g., “disproportionate” punishments or “outrageous treatment that shocks the conscience.”
It only follows if you focus on deterring convicted criminals from recidivism. How about deterring people from becoming criminals to start with?
Are you saying that “pushing long jail sentences to cause specific deterrence” should be discontinued (which makes sense, if the specific deterrence is deterring recidivism), or that “pushing long jail sentences” should be discontinued? (which doesn’t follow—you have only provided evidence that long sentences don’t fulfill the goal of deterring recidivism, not that it doesn’t fulfill any other goal)
There may be some other sort of penalty that would both deter recidivism and also deter people from beginning criminality. Corporal punishment, for example.
Great question. Here are my answers:
Protect society by preventing and deterring crime, both in the specific case of the person being prosecuted and others.
Preventing crime includes doing so by preventing bad actors from being around other people who they could kill or maim or whatever other bad thing they like to do.
When possible, make victims whole.
I don’t believe in punishment as valid, but making victims happier has substantial value. So from a societal point of view, I want punishment to have a specific purpose; part of that purpose may be giving victims a sense of justice.
“Ensuring laws are implemented,” strikes me as a second-order question; we want laws to be implemented fairly and equitably to achieve the above goals. Uniform sentencing for similarly-situated bad actors is something that accomplishes crime prevention.
Make more total utilons for society.
(I’m a prosecutor; that doesn’t mean I’m right about any of this.)
Off-topic, but I’ve been dying to ask a prosecutor this: what’s your take on qualified immunity? I don’t understand the rational basis for it; is there something I’m missing?