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Sunday, October 25, 2009

Mark Kleiman on Retribution

This post by Mark Kleiman is more interesting than an average Mark Kleiman post on crime and punishment, and that is saying a lot.

I can't summarize it, please just click the link.

To give it the whole college try, Kleiman argues in favor of considering retribution as a legitimate aim of punishment *and* that "the suffering punishment inflicts on offenders and those who care about them is always a cost and not a benefit, and therefore can only be justified by some good result." That's a tough square to circle (although the broadness of some good result helps).

I'm sure it is a pure coincidence, but, in the post, Kleiman is, among other things, defending an apparently indefensibe* statement by Barack Obama

"Barack Obama supports the death penalty even though he believes it “does little to deter crime”. It is justified, he says, because it expresses “the full measure of [a community’s] outrage”. " Oh my Lexington has waved crime, punishment and Barack Obama in front of Kleiman's nose. He (or she) was asking for it.

Kleiman makes three arguments

1) ... when punishment expresses outrage in a way that changes attitudes about the wrongfulness of the underlying act – as more severe punishment of drunk driving and domestic violence surely has done – it has a crime-control effect not reducible to incapacitation and deterrence.

2) ... a light punishment reflects, and reinforces, the low value the community assigns to the person on the receiving end of the crime, and by extension to other people of similar background.


3)The shift from weregild or private revenge to punishment by the state no doubt represents an important social advance. But it ought to be thought of as a bargain, with the state standing in for the Lord and saying to the victim and his family, “Vengeance is mine; I will repay.” That bargain, once made, must be kept.

first note that argument 3 is in notable contrast to arguments 1 and 2. In 1 and 2 Kleiman argues that the state can and should shape public attitudes. Sounds alarmingly Marxist, but, like much of his thought, Marx owes this to Smitth who made the argument in "Theory of the Moral Sentiments."

Point 3 relies on the assumption that the state can only slake and not eliminate our thirst for vengeance. If a false dichotemy were a valid argument, then Mark Kleiman would be wrong and my grandmother would be my grandfather.

I think that Kleiman doesn't prove all that he seems to set out to prove. In particular, while I think that Obama's statement is fine as a political compromise needed to win elections, I don't think that Kleiman successfully defends it as a moral proposition. I will use it as an example, when discussing Kleiman's arguments.

OK point 1. This is an effect of punishment. In allowing it to be considered, Kleiman seems to assume that people who make the laws know more about right and wrong than mere citizens. He seems to think that the beliefs about morality which will be encouraged by the law are the beliefs of people like him and are true beliefs. I note that the law has also reinforced the view that the first amendment right to association doesn't apply to the Communist Party, that atheism and religious skepticism are depraved etc etc etc. Influencing opinions does not necessarily mean improving them.

Note the key weasel word "seems" in the paragraph above. Kleiman doesn't actually state that laws affect moral sentiments *and* this is a good thing. He just said that there is an effect of the law other than deterrence and incapacitation. I grant him his point. Everything has all sorts of effects direct and indirect and oh what a tangled web we weave when in consequentialism we do believe.

It is irrelevant to Obama's statement. Obama doesn't say we need the death penalty to convince people that some especially bad murders are really bad. He (and Lexington parapharsing say "expresses '... outrage'" not "creates a proper sense of outrage."

Point 2. Here it really seems to me that Kleiman is saying that utilitarian calculus must only operate within the limits set by rights including the right to equal protection under the laws, which plainly includes policing services and punishment which does not depend on the identity of the victim. I think point 2 amounts to saying that the state must act through anonymous laws. A benevolent dictator who was above the law might do better, but we don't have a benevolent dictator on hand. To live under the law and not under arbitrary authority, punishments must be regulated by laws. This means that judges will sometimes punish someone more severely than we would if they were absolutely free to punish as they saw fit. It sure doesn't seem to me to have anything to do with retribution. It has to do with the rule of law and the claim that laws must be clear and simple in order to maintain the rue of law.

3. Vengeance is mine sayeth the state. Here I can interpret Kleiman's arguments in two different ways depending on the meaning of "must." It is an imperative and it might be categorical or hypothetical.

Is he saying it is morally necessary to keep all social bargains -- that the historically existing social contract is morally binding ? Surely he doesn't believe that. The USA made a social compact with its White male citizens promising us that we would control the country and that it wouldn't arbitrarily deprive us of our property (including human property). It didn't keep that bargain. Kleiman can't be arguing that a promise made to our ancestors centuries or milennia ago is moral law. However, I think he definitely is appealing to the sense that promises should not be broken even if you can get away with it.

It seems he is arguing that the unsatisfied thirst for vengeance can lead to crime and that it is welfare maximising to take this it into account. William Douglas said no man is more than x meals away from a felony (I think X was 6 which is clearly to low). Similarly, one might argue that we must punish a criminal, because if we don't the victims will.

This really doesn't seem to get us to the death penalty. We must kill this man, because someone else might, doesn't strike me as a sound argument.

I'd say Kleiman has made two major valid points. First, one has to decide between the rule of law and attempting to optimize dterrence and incapacitation for a given level of total punishment. Hardly a shocking conclusion, but convincing. Also that punishment has effects in addition to effects via incapacitation and deterrance. His examples are that it promotes a proper outrage and sooths dangerous outrage. Not at all a logical contradiction, but, again, the argument that actions have many different effects and forecasting is difficult is not really novel.

In the end, I think it is clear that Kleiman has something in mind which I haven't grasped. After being provoked to thought, I have come around to the conclusion that his arguments are obvious and amount only to respect for the rule of law and the complexity of humanity. I must have missed something.

But what ?

* update: I actually want to defend Obama. I claim he was lying. IIRC The statement appeared in "The Audacity of Hope." It appeared in the context of Obama arguing for more safeguards to reduce the probability that innocent people are sentenced to death and for less and less arbitrary application of the death penalty. Notably Obama's amazing legislative achievement in the Illinois senate was convincing his colleagues and Gov. Blago... to require that all police questioning of suspects of capital crimes be videotaped. In practice he managed to achieve something that restricts the death penalty and that is rare. Obama's claim that he doesn't oppose the death penalty as such, makes perfect strategic sense. This would be true even if his only aim in life were to reduce the number of people put to death.

The people of the USA (and of Illinois) will *not* be convinced that the death penatly is always wrong. They will ignore all statements about the death penalty by people who say that it is always wrong. When I read the passage I wasn't disturbed at all. It seemed obvious to me that Obama was making a obligatory gesture of feigned respect for vengeance.

In contrast, I was outraged when he praised welfare reform. Again, I'm sure he did that, because one loses ones electability (and status as a serious non DFH) when one criticizes welfare reform. However, the facts are the facts, and Obama's claims about the pre-reform welfare system are falsehoods.

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