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> 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 promote
by etrevino 9y ago
> 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.
- BEEdwards 9y agoOr 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.pdf http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration... https://www.sciencedaily.com/releases/2009/08/090810025245.htm 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 https://nij.gov/five-things/pages/deterrence.aspx
- etrevino 9y agoI'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.
- iandanforth 9y agoIn 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.
- etrevino 9y agoIt 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.
- cavanasm 9y agoI 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.
- etrevino 9y agoNo no, you're right, but the fact of the matter is that deterrence has always been an inspiration for harsh punishment.
- anigbrowl 9y agoWhat 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?
- etrevino 9y agoFoucault 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.
- anigbrowl 9y agoThank 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.
- etrevino 9y agoHaha, 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.