The classic set-up: a #superrichkid in pastel board shorts downs a fifth of Cristal, starts up his dad’s Jaguar, and delivers ½ mv^2 to a trio of Girl Scouts. Sentence: six months in a rehab center that used to be a Hyatt. Clickbait vultures catch the scent, compare/contrast to an economically disadvantaged African-American who’s serving a decade in the Gulag for smoking a joint before his dialysis appointment.
Conclusion: the American justice system is racist, classist, and ableist.
And I agree: the American justice system probably is racist, classist, and ableist. But there’s a more insidious—and harder to solve—problem. Hard problems are rarely the result of malice or even stupidity. They are the result of ordinary people doing what they are told.
Wait, how does arresting people before they’ve actually done anything wrong help? This is obviously the focal point of the entire essay and I feel it hasn’t been adequately defended. Having an arrest on your record labels you as a criminal and makes you more likely to identify as such. (Does anyone here know they name for this phenomenon?) If we already send people to prison for marijuana use, how much room do we have left or escalate when someone commits murder? How can you have a functional justice system if the people you’re policing don’t accept your authority as legitimate?
Good points all around.
@wirehead-wannabe: I don’t think sending people to prison for marijuana is a good idea. There are less stringent options available (fines? mandatory D.A.R.E.?), but “whether these rehab/deterrence techniques are worth the cost is, obviously, a matter of debate.”
However, there are cases where “arresting people before they’ve actually done anything wrong” seems reasonable. @serinemolecule mentions DUIs: a 0.20 driver hasn’t hurt anyone yet, but has a high risk of doing so. The justice system deems it acceptable to preemptively punish him in order to prevent this harm.
(Technically, selling nuclear weapons is a victimless crime.)
The same logic is used against marijuana users. Your average manbunned Boulder resident is not going to become El Chapo, but people who sell marijuana by the ton often have a shady past/present/future. Our punishments increase commensurate with the kilogram.
And if you agree with the justice system that “risky people” should be punished based on their risk, you may find yourself agreeing to some ugly disparities.
@ranma-official: Let me officially state that I do not endorse long prison sentences at hellscapes.
However, are you sure that they don’t prevent recidivism? If you’re sentenced to life in prison, you will not be able to perform Grand Theft Auto.
In a semi-ideal world—i.e. ignoring the way prison hardens criminals—you should give a unlikely-to-rehabilitate defendant a longer sentence, both increasing the deterrent dose and preventing a few more years of potential crime.
(A lighter example: you should give a heavier fine to a text-and-driver who shows no remorse; the fine isn’t going to have much effect on the already repentant.)
@alexanderrm: Fine, there are other reasons the government punishes victimless crimes. Like keeping a high IQ, sober workforce—except that’s still lopsided, note that white-collar jobs don’t get drug tested. Also, to kill good vibes and immanentize the eschaton, but that goes without saying.
And yes, my argument is exactly “utilitarianism disproportionately punishes those who are most likely to commit crimes [even if those people have done nothing wrong except have the wrong demography].” If you’re cool with that, vote Nixon ‘68.
@jbeshir: The first part of your argument is, essentially, “Humans are not very good at utility calculations.” I agree. But it seems like you’re throwing the baby out with the water utility. Consider the legal distinction between first degree murder and voluntary manslaughter. It’s hard to find a convincing deontological reason for distinguishing between them: “Thou shalt not kill, unless thou art really mad.” But utilitarianism resolves this easily: the guy who Dexters his homicide is more likely to do bad stuff in the future.
Do you disapprove of all context-dependent sentences? Should someone on his tenth offense be punished the same as someone on his first?
If you stick to your guns and claim that all such distinctions are naive, fair, but this is the naive utilitarianism that is actually being used by the courts today, and this is the logic behind its use. Write a letter to Congress.
You and @misanthropymademe are both correct: it was sloppy of me to say that the harm of public distrust is impossible to calculate. (Although I imagine “the cost of public distrust specifically due to sentencing disparities between privileged and not-privileged” would be a doozy for Wolfram.)
To clarify: I didn’t write this essay to defend the current system, nor to uphold it as an exemplar of utilitarian thought. I wrote it to explain the logic behind otherwise opaque injustices, a logic which seems to stem from (perhaps imperfect) utilitarianism.
Moving forward—my gestalt is that some degree of context-dependent sentencing is necessary, but that our current justice system allows far too much leeway. Most real crimes should be deontologically fixed to their punishment; most victimless crimes should not be punished.
If anyone has a better solution, I would be pleased to hear it.
The classic set-up: a #superrichkid in pastel board shorts downs a fifth of Cristal, starts up his dad’s Jaguar, and delivers ½ mv^2 to a trio of Girl Scouts. Sentence: six months in a rehab center that used to be a Hyatt. Clickbait vultures catch the scent, compare/contrast to an economically disadvantaged African-American who’s serving a decade in the Gulag for smoking a joint before his dialysis appointment.
Conclusion: the American justice system is racist, classist, and ableist.
And I agree: the American justice system probably is racist, classist, and ableist. But there’s a more insidious—and harder to solve—problem. Hard problems are rarely the result of malice or even stupidity. They are the result of ordinary people doing what they are told.
So. What are judges told to consider during sentencing?
- Retribution and Denunciation are deontological. Imprisoning a 94-year-old ex-Auschwitz guard is unlikely to deter future Nazis and comes too late to reform behavior or prevent harm. Perhaps his punishment will provide slight comfort to the families of Holocaust victims (reparation), but this is not the primary motivation for his sentence. “Some things are just wrong.”
- Incapacitation is utilitarian. Consider a Hannibal Lecter-type who is perfectly content to remain in jail and make small talk with Clarice. Assuming torture and execution are unconscionable, Dr. Lecter cannot be meaningfully punished; nevertheless, his imprisonment protects society, improving sum utility.
- Reparation depends on the ability of the criminal to make amends. If reparation was the sole basis for sentencing, a severely disabled criminal—one totally unable to recompense society—would get off scot free. Utilitarian.
- Deterrence depends on the ability of (+ need for) the public to be deterred, e.g. “making an example of him.” Utilitarian.
- And Rehabilitation depends on a criminal’s capacity for redemption. Once again, punishment is context-dependent—how will this benefit the overall good?—rather than intrinsic to the crime committed. Sorting Hat says utilitarian.
Sophisticated people like to talk smack about the Levitical ugliness of retributive justice. Punishment for punishment’s sake is barbaric. Shouldn’t our justice system try to heal society instead of inflicting new wounds?
Maybe. Maybe not.
Imagine two young men found guilty of the same offense, say, drug possession with intent to distribute. One comes from money and goes to Princeton. The other defendant has multiple incarcerated relatives and lives in the poverty of North Philadelphia.
The judge, who has a very broad jurisdiction, is an impartial race-blinded robo-utilitarian. To whom will he give the harsher sentence?
First, observe that the rationale for drug prohibition is utilitarian. The justice system cares little about marijuana possession in and of itself. Rather, it uses marijuana possession as a screening tool to find people who are at risk of committing more serious crimes in the future.
(Whether marijuana is a useful predictor and whether these rehab/deterrence techniques are worth the cost is, obviously, a matter of debate.)
But the screening tool isn’t marijuana possession, exactly: it’s getting caught. My alma mater provided a hedge-obscured courtyard a half-block from the dorms, complete with picnic table and benches, so that sulky ex-prodigies could play Hal Incandenza without risking detention. It made sense: freshmen who limited their vice to nighttime in the designated area were (probably) responsible enough to pass their classes, so the university had no reason—and did not wish—to intervene. On the other hand, students who smoked in their dorm rooms or between lectures were (probably) cavalier about their drug use and in danger of slipping up: hence RAs, hence campus police.
If poverty has forced you to room with two aunts and three asthmatic cousins, smoking indoors is probably a no-go, and safe outdoor smoking areas do not exist. But this increased likelihood of getting caught is a “““feature”””, not a bug, because low socioeconomic status (and correspondingly, minority race) is an additional risk factor for a variety of criminal offenses.
If the justice system wants to cost-effectively Minority Report future criminals, it should target the disenfranchised for arrest, and it should sentence them more harshly as well. The Princeton student has few criminal peers, no family history of crime, and plenty of social and financial support for his beachside recovery. His likelihood of recidivism is low. The Philly resident is surrounded by crime. His family cannot pay for rehab or therapy. His likelihood of recidivism is higher.
“It makes sense to spend government resources on the guy who needs it,” the argument goes. “Get him into treatment he wouldn’t otherwise be able to afford. Send a message: shape up or else. And, if worst comes to worst—keep a potentially dangerous person off the street.”
And so, for the same crime, utilitarianism disproportionately punishes the less fortunate.
One can remain a utilitarian but condemn the way utility is calculated. Perhaps prison is so harmful and rehab so ineffective that, for minor crimes, sentencing is worse than doing nothing. Reasonable, but this does not invalidate divergent sentencing for more serious crimes.
Or perhaps the awareness of injustice, “the courts hate ___ people”, causes public distrust that outweighs any benefit from utility-conscious sentencing. This argument is impossible to resolve, since the harm of “public distrust” cannot be quantified. However, choosing sentences to fit public opinion seems a perilous game, especially since the public bites onto whatever tribal narrative the media is currently selling.
Reality is rarely so simple. Let us return to our original case of affluenza-induced vehicular manslaughter, and translate the typical defense:
“The defendant made a mistake. The trial and media hoopla have been a nightmare, more than sufficient deterrence. The defendant has been enrolled in an intensive rehabilitation program, where he is learning to cope with his depression without resorting to substance abuse. He has no past history of similar offenses. He is never going to make this mistake again.”
“I understand that you want to send a message, to punish someone who has recklessly squandered his good fortune, to show that no one is above the law. But this sentence will not undo the harm that has been done. It will not prevent further harm. Does your thirst for vengeance warrant needlessly ruining a life?”
There’s something to be said for this argument, even though it is antithetical to justice. I do not claim that utilitarianism is worthless. My point is that it comes at a price.
