Abstract
Jay Livingstone on crime and the triumph of vengeance over practicality.
Keywords
In June former Stanford student-athlete Brock Turner was convicted of three felonies stemming from on-campus rape of an unconscious woman. The reaction to his six-month sentence set off an uproar—a reaction that reminded me of economist Robin Hanson’s list of contrarian propositions, including: church isn’t about God, medicine isn’t about health, consulting isn’t about advice, and school isn’t about learning.
The furor over the sentence and the excoriation of the judge who issued it suggest we should add one more contrarian statement to Hanson’s list: punishment is not about crime.
Criminologists, of course, are interested in the relationships between punishment and crime, and they have done a lot of research on deterrence, incapacitation, and rehabilitation. These functions of punishment raise difficult cause-and-effect questions about how to reduce crime.
Researchers, however, do not write the laws, and the legislators who do write them are often more concerned with a different function of punishment: justice. Also known as retribution, it’s basically vengeance on behalf of victims but carried out by the government. Unlike the other reasons for punishing criminals, retribution is about punishment’s effect not on the behavior of criminals but on the feelings of good and law-abiding citizens. We want punishment for bad guys because it makes us feel better to know that they will suffer. If they don’t seem to suffer enough, dissatisfied constituents call on lawmakers to enact harsher punishment.
Ideally, we want punishment to do both: to deal practically with crime and to satisfy our ideas of justice. Among the public, however, the popular principle is usually retribution. Some justice seekers cloak their arguments in principles like deterrence—the idea that sentences “send a message” to potential criminals. But do we really think that Turner’s short sentence will encourage other fratboys to commit rape? It seems unlikely that the short sentence will encourage other fratboys to commit rape—as though drunken 20-year olds will pause to think, “Hey, it’ll only be 6 months in the slammer. Now, if it were a few years….” Nor will a longer sentence reduce the number of rapes that Tucker himself will commit after he is released—a number which is almost surely zero. No, the true recipients of the “message” of sentencing are those seeking justice. The light sentence says to them that justice has not been served.
The triumph of vengeance over practicality can affect policy in general. When that happens, we can get juggernauts like the “War on Drugs”—vengeance under a veneer of deterrence. When new and harsher laws meant to “send a message” to drug users and dealers failed to bring about a promised reduction in drug use, lawmakers might have paused to rethink their assumptions. Instead, they tried to outdo one another in proposing even harsher sentences, locking up more people for longer periods of time.
It’s been said that doing the same thing and expecting a different result is a definition of insanity. In the War on Drugs, it was more like an addiction. When a mild amount of punishment didn’t have the desired effect, lawmakers and their constituents increased the dose. We became habituated to that new level, and when that didn’t work, we turned to even higher doses. We became punishment junkies, spending more and more of our money on something that brought little relief and raise our level of tolerance. We wound up with “normal” sentences many other Western countries considered medieval.
Some social scientists argue that the desire for retribution is part of human nature, embedded in our genes. A recent experiment showed that even babies would “punish” the guilty by taking a treat away from a wrongdoing puppet. But even if the desire for retribution is universal, the punishments and policies that arise from that impulse vary widely. In some countries, a six-month sentence for felony rape would be considered normal and sufficient.
Those outraged by Turner’s six-month sentence are demanding, in effect, policy change. If we can’t punish the rapist, then let’s punish the judge—and find one who gives out sentences that feel more appropriately severe. But as the history of our laws about drugs and three-strikes and mandatory-minimums shows, a policy based on satisfying public anger is a costly and rarely effective way to control crime and criminals.
I am not saying that those who want a longer sentence for Turner are wrong. I’m not saying they’re right. What I am saying is that whoever enters this argument should not pretend that a policy well-suited to purposes of retribution will also bring the desired reduction in crime.