How the Tension Between Mercy and Blame Shaped Our Legal Codes | Hacker News Reader

How the Tension Between Mercy and Blame Shaped Our Legal Codes

nautil.us

45 pointsdnetesn19 comments

> It’s fair to say, however, that back in Harcourt’s day, and for much of human history, punishments skewed harsh—perhaps because it preserves order and promotes cooperation among social species. Hungry macaques, for instance, often attack those that do not alert the group that they’ve found food, likely to teach a lesson about sharing; elephant seal pups caught stealing milk from unrelated females are often bit, and occasionally killed. We’re no different, and it seems humans’ elaborate legal institutions and procedures haven’t significantly altered the psychology we evolved hundreds of thousands of years ago to respond to wrongdoing.

I think that this article spends too little time discussing another aspect: deterrence. Whether or not one thinks that harsh punishments deter criminals, it's certainly true that it has inspired a great deal of legislation all the way back into the era I studied for my PhD (eighteenth century England). Sure, there's the tension between mercy and blame, but deterrence is in there, too. Sometimes clemency isn't granted in a case where otherwise it would clearly be warranted because the perceived need for deterrence is so strong. That's what we're seeing above, when punishments "skewed harsh". Despite the implication (or what I see as the implication) that we've moved beyond the need for harsh punishments to preserve order and promote cooperation, I think that they're still very much in evidence. It can't be ignored here, because it's certainly a part of the rationality of punishing criminals.

In your research did you find good numbers around the effectiveness of deterrence? Behavioral psychology and neuroscience tell us that those who we want to deter most (violent criminals) are the least likely (or able) to evaluate the consequences of their actions.

It depends. There really aren't any good numbers. We could tease out some conclusions by looking at things like poaching convictions, etc., in the First Industrial Revolution. Mainly, we can say that poaching did go down. However, whether that was because the law changed a longstanding social activity or because of societal changes that happened concomitantly with the law is something that could still be debated. In the case of something like poaching I actually think that deterrence worked. In the case of murder (which was my main focus) I'd say no.

I think deterrence is fraught as an explicit goal for law enforcement / punishment of violations. I feel it lends itself too much towards a utilitarian "I'm punishing you to send a message to them" sort of situation where it doesn't matter if the person receiving the punishment actually committed the crime or not, only that fewer people commit the crime later. I'll grant I'm excessively idealist.

No no, you're right, but the fact of the matter is that deterrence has always been an inspiration for harsh punishment.

Or not as all the studies I've seen that look into it find no clear relation between harshness and deterrence, in fact it may even backfire and cause more problems.

http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration...

https://www.sciencedaily.com/releases/2009/08/090810025245.h...

What does work as deterrence is the risk of being caught.

https://nij.gov/five-things/pages/deterrence.aspx

I'm just pointing out that the intent of a great deal of criminal law is deterrence and that should be factored into this discussion. Whether that's effective is a different story.

What do you think of Foucault's argument about the shifting of deterrent incentives from the integrity of the social body (qua the privileges of the monarchy) to the the maximization of industrial growth and subsequent quantification and expansion of penal control across society at large in accordance with Bentham's utilitarian calculus?

Foucault is ... interesting and my research (and all studies of criminal justice in Europe) has a tortured relationship with Discipline and Punish. On the one hand, he's definitely right about the importance of the social body and the symbolic nature of punishment. But I don't buy his conclusions as to why the transition away from that sort of punishment occurred. I give much more credence to two things. The first is the rise of sentimentality (Adam Smith, William Lloyd Garrison, et. al.). The second is the philosophical idea that, instead of curing the social body by excising the criminal, the social body could be cured by reforming the prisoner (this is linked to sentimentality).

As far as Foucault's musings on social control ... I don't buy it. It's a bit ahistorical at that point.

Thank you so much for taking the time to reply to my rather, er, tortured question. I had been planning ot reread the Theory of Moral Sentiments and your answer will inform my perspective.

BTW I would be most interested in reading your thesis, if you care to send me a draft - same name at gmail.

Haha, I see what you did there. ;-)

I had to withdraw from my program at the (almost literal) last minute due to family issues, so I've been reworking my thesis into a few articles. I'll try to send one of those on in a few days.

Sociology as a field arguably emerged from the study of crime. We have annual crime statistics which we all take for granted today but two hundred years ago or so it was a revolutionary concept. It was thought that crime was something spontaneous and driven by animal spirits, but crime statistics showed the contrary that crime was in fact a fairly consistent part of a society. Once one could compare crime rates across different societies, then it become clear that crime was very much related to the organization of a society, etc. -- all of this at the time was very surprising. It's this insight that I think drives a lot of "liberals" to be somewhat anti-punishment and see the society at fault or blame...while "conservatives" still tend to focus on individual responsibility. Another tension!

What shapes our legal systems the most IMO is the idea of guilt and punishment. Its a very automatistic thing. Somebody does something wrong, they charge themselves with guilt, and then this guilt has to be balanced by punishment or atonement.

This leaves little way for nuance and mercy (but you can of course introduce exceptions into your laws). Also it tends to lead to wierd considerations the more we know about brains, and we have to think about if somebody is really "responsible" for their actions or doing it involutarily (due to insanity or determinism...).

If I'd design a society from scratch, one thing I would consider is a legal system without guilt. Instead of a big table PUNISHMENT -> ATONEMENT, I would make imperative laws a la: "Police officers shall prevent people from being harmed" and "Police officers may lock you away for X days after consulting with a psychologist/judge that you are dangerous, especially after you already hurt somebody". I'm just making this up as I go along, in reality it would be more precise of course.

My point is that this system of moral prohibitions (and rights) is in a way a broken abstraction. I wonder if a completely different society could work differently and better.

> What shapes our legal systems the most IMO is the idea of guilt and punishment.

That may true today, but that simplistic model waxes and wanes with the times.

Notice how prisons departments, in particular those formed in the late 19th century on the east coast of the US, are often called "department of corrections" and the jails "penitentiaries". During a reformist period the idea is that the criminal would have time to reflect on their crime (be penitent) and correct their error. It reflects a more hopeful, less manichean view of society.

The gradual abolition of the death penalty happened at the end of such a period; it's revival in the US happened as a more binary world view returned.

Victorian England was definitely hard core on the "punish" side, even punishing the poor, but did abandon some of the more extreme ideology (e.g. dropping the practice of trying and hanging animals that killed humans).

I actually think your characterization is not quite correct: I think what's reflected is a re-emergence of the idea of the christian idea of original sin: certain people are inherently bad and deserve punishment; thus whatever they do can be taken as an excuse to exact justice (and even have them finance it!) while others are deserving of "charity" (i.e. being judged by a more generous standard)

I find interesting that this fictional case isn't mentionated: https://en.wikipedia.org/wiki/The_Case_of_the_Speluncean_Exp...

It's studied in law schools (at least in some countries).

I usually like Nautilus articles, but this one felt rushed, and didn't seem to dig in deeply at all to the issue of how our legal codes were shaped. It feels like the title could drop the word How and communicate as much information as the article did.

American Nations by Colin Woodard and History of American Law by Lawrence Friedman are probably the best intellectual cocktail if you want to go on a serious historical bender.

Is the Tiger Richard Parker in Life of Pi loosely based on the man in this true story or is that a coincidence?

Luck is definitely a BIG tension in terms of punishment. Anyone for example driving drunk is at risk of killing someone, but only the drunk driver who actually kills someone (bad luck essentially) is put in jail for months or years.

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