Tag Archives: criminal law

On the criminal prosecution of the government

Individuals, or natural persons in legal jargon, can commit crimes and hence can be prosecuted for crimes. Similarly many jurisdictions provide for the criminal prosecution of juristic persons, popularly known as “corporations”. The question might rise should the criminal prosecution of the government be possible? Continue reading On the criminal prosecution of the government

Crimes and contraventions

Virtually all legal systems do categorize illegal offences in two or three degrees of seriousness. We propose a distinction between two classes of offences: crimes and contraventions.

Contraventions are light offences, i.e. things we do not want people to do but also we do not deem as serious as we feel it necessary to punish them severely. Think about littering or walking your dog unleashed in urban areas. Continue reading Crimes and contraventions

Fines and revenue

But punishment must by definition hurt in some way, be it emotionally, psychologically, monetarily, or physically. Punishment must cause pain. (Peter Moskos 2011, In Defense of Flogging, p.114.)

In modern legal systems fines and imprisonment are the most common penalties which can be imposed on crimes. In classic criminology three functions of punishment have been described since the 18th century: deterrence, rehabilitation and incapacitation. The latter category seeks to disable a criminal from committing another crime in the future, be it through imprisonment or execution. In case of rehabilitation, the aim of “punishment” is to reform the criminal, so he will no longer be willing to commit crimes.

It’s quite obvious that fines or monetary penalties at best can only serve as a deterrent, fines do not incapacitate or reform criminals. Additionally we could argue that fines serve a retributive aim of punishment, as expressed by the quote by Peter Moskos. However, in order to function as a deterrent a punishment should be considered by the would-be criminal as unpleasant.

Deterrence theory is not without severe criticism, but monetary penalties suffer from another “flaw” in this respective. In most legal systems fines are expressed in absolute terms, i.e. the law prescribes a fixed (maximum) sum of money to be paid for a certain offense. The problem of this is, from the perspective of deterrence, is that different people have different levels of wealth.

Suppose that a certain action, say not cleaning up your dog’s feces in public space, is punished with a fine of 50 Stella. Both Alice and Bob have a dog, and as good dog keepers they regularly walk their dogs. But Alice has a monthly income of, say, 5,000 Stella whilst Bon only earns 3,000 Stella. Assuming both person need 1,500 Stella to live from, Alice has 3,500 Stella to spend freely and Bob 1,500.

Now we know that neither of them really like to clean their dog’s feces, and being rational persons they estimate how many times they can afford to pay the fine. Alice can afford 70 fines a month and Bob only 30. Consequently Bob would be more willingly to comply with the law, because one fine constitutes a larger part of his income than it does for Alice. Basically for Alice a fine is (subjectively) cheaper than for Bob.

This example clearly shows a problem with fixed fines from the perspective of deterrence theory: people with higher incomes will be less deterred by fines. At least this would be the case if we assume that deterrence is indeed a valid concept, which is at best only partially the case. But even from a pure retributive point of view, there’s a problem: poorer people are punished more severely by fines than their more affluent fellows. Though fines might be equal to all, but their effects aren’t.

In a normal market this would not be necessarily a bad thing, only criminal law is not meant to be an ordinary market of goods and services. Certain acts are banned because they are harmful to others, and consequently no one is allowed to commit these acts regardless of their wealth. If fines should be part of our legal system, than we should equalize the effects of this kind of punishment. In other words we should make fines dependent on the income of the offender.

One method to establish income dependent fines is by introducing day-unit fines. The basic idea here is: if we put you in jail for one day, you can’t work for a day. Hence you won’t earn any income on that day. More importantly if we put a rich person or a poor person in jail for a day, the unpleasantness for both of them is more or less the same. However instead throwing people in jail, we could just as easily give them a fine equal to their income of one day.

This approach is called the day-fine or unit-fine. One unit is equal to one’s income of one day, and in the law the fine is not expressed in terms of precise monetary amounts, but in terms of such units. In our example this could be for example a fine of unit for not cleaning the feces of your dog, instead of a fine of 50 Stella.

Another important issue related to fines, what to do with the revenues raised by collecting fines? One thing would be to use this money just to fund the government, but this would lead to a perverse incentive to politicians: in order to fill their gaps they will simply resort to increasing fines, regardless of whether this would affect crime in any way.

A better proposal would be in our eyes to put this revenue in a fund for the victims of crimes. This idea is related to the concept of restorative justice. We could use this fund directly to pay financial compensation to crime victims or indirectly. A slightly different idea would be to use this money to undo the effects of crime or to use this money for crime prevention programs.

Reflections on deterrence theory

Before we continue, we want to make a clear statement. It’s without doubt that social-economic factors play a key role in the occurrence of crime. As such improving social economic conditions and better education will be of great importance to reduce crime rates in future space settlements. However, even with proper social economic condition and subsequent low crime rates, some people will still turn to crime.

In modern theory on criminal punishment the concept of deterrence is a predominant one. First introduced by Enlightenment philosopher Cesare Beccaria, and latter refined and defended by English philosopher Jeremy Bentham, deterrence theory assumes that criminals are rational actors. People commit crimes because they believe they will gain more than they will lose from these acts, and because the criminals believe that crime is the easiest way to get these gains.

According to deterrence theorists, the purpose of punishment is then simply to cancel the gains acquired by crime. In other words, due to punishment the costs of a crime will be greater than the expected gains (from the criminal’s perspective). Confronted with such an analysis  a rational person will decline to commit crimes.

If deterrence theory would be “true”, then we should expect that the mere threat of punishment would be sufficient to eliminate crime. But since it’s evident that despite the prospect of harsh punishments, crime is still an important problem in almost every society. Therefore defenders of this theory are facing a difficult challenge, since it seems that deterrence has failed in its objective.

As always the truth is these matters, is a little bit more complex than simply true or false. Let’s therefore look at the fundamental assumptions made by deterrence theory. First, defenders of the theory can make the following point. In order to be effective, the threat of punishment has to be credible. Aspirant-criminals has to believe that the government is willing to carry out the punishments it imposes on certain crimes. If however, the law provides high (maximum) punishments but courts hand out only lesser punishment, then criminals will less likely be deterred from committing crimes. This is even stronger the case if there will be no prosecution at all, and hence no punishment. Therefore simply raising punishments will not necessarily results in less crime.

Empirical evidence further shows that the probability of being caught is a more important consideration in deterring people to commit crimes than the severity of prospective punishments. Since we all know that the police cannot solve each and every committed crime, there’s always a chance that a criminal will get away with his or her crime. Consequently a rational aspirant-criminal will consider how likely it will be that the police will be able to arrest him or her, and the particular punishment (s)he might receive is only of secondary importance. Even if a criminal risks the death penalty, (s)he might still commit the crime if that person believes that the chance of being caught is quiet small.

Instead of raising the amount of punishment, governments should improve the quality of the police to solve crimes and to arrest criminals. The more crimes the police can solve, the less the probability of getting away with crimes will be. But again we hit a problem. Criminals do not act upon the actual probabilities, but on their perception of these chances.The authorities should provide the real probability of being caught, but it should also take care that potential criminals will believe those numbers.

This leads us to the most fundamental assumption of deterrence theory. Deterrence requires that all all people are able to rationally weigh the gains and losses of their actions. Unfortunately, we know that humans have a wide range in intellectual capabilities. Scientific studies have shown that the less intelligent a person is, the more likely it is that he will commit a crime. Less intelligent persons will have more difficulties with understanding and handling complex stuff such probabilities, and the impact of prospective punishments, than their more intelligent fellows.

There is no easy way to improve people’s intellectual capabilities, it would be great if there would be a drug which could raise your IQ with 20 points. In the absence of such drug, we have to face that a substantial part of the population might not be persuaded by the threat of punishment.

Free will and punishment

On several occasions we have published posts about criminal law on this blog. In general our position is that only acts which cause harm on non-consenting others should be prohibited, and should be punishable by law. What constitutes harm is subject to debate. However in this post we want to discuss another topic: whether the existence or non-existence of a free will is relevant in matters of criminal law.

Some authors have argued that if humans do not posses a free will, they cannot be held responsible for their actions and therefore society has no right to punish them. Some people have used the reverse reasoning to defend the existence of a free will: if people have to be held accountable for their actions, they should posses a free will; therefore a free will must exist. This latter argument is a fallacy, the so-called moralistic fallacy or the idea that the existence of A can be established from the moral desirability of A.

The most important argument raised against the existence of a free will is determinism. This is the ontological position that the order of events in the universe has been predetermined and consequently cannot be changed. There are many different types of determinism, but currently the most important one is the determinism of Laplace or Laplacian determinism. French scientist Laplace deduced from Newtonian physics that the universe should be deterministic at the end of the 18th century.

Central to Newtonian physics is the concept of force: a particle on which no forces are acting will either remain in rest or move in a straight line at a constant speed. In order to accelerate or decelerate, or to change its direction, you need to apply a force on it. The change in velocity and direction of the particle, is dependent on the magnitude and direction of the force acting on the particle. Laplace made the conclusion that if you would know the location of all particles in the universe and all forces acting on them at a given moment in time, and you know all laws of physics, you would be able to calculate the configuration of particles and forces at any other point in time.

Laplace’s determinism is based on the idea of a causal chain: cause and effect. Though Newtonian physics has been replaced by relativistic physics, determinism was still strongly established. After all, Einstein’s theory of relativity is no less deterministic than Newton’s theory. Even though many, if not most, physicists believe that quantum mechanics is probabilistic rather than deterministic, there are still many scientists who support deterministic versions of quantum theory.

Even if we, for the sake of the argument, assume that quantum mechanics is probabilistic and that random quantum fluctuations are capable of steering the human mind; the existence of a free will is still not proven. After all, we have no influence on the occurrence of these fluctuations and consequently we do not control their effects. Suppose that the human brain depends on a single quantum event: the spin of a particular hydrogen atom somewhere in our nerve system. The spin is either “up” or “down”, each with equal probability. If the spin is “up” the brain will choose action A, but if the spin is “down” it will choose action B. Since the spin of a hydrogen cannot be controlled by the brain, we cannot strictly speak of “a free will”.

We can conclude that a strong case can be made against the existence of a free will. So the question is now whether the non-existence of a free will matters in case of moral issues such as crime and punishment. I will argue it does not matter at all. Let we consider the following analogy: a game of pool. If a ball lies on a pool table, while no forces are acting on it, the ball will remain where it is. If a player pushes another ball with his cue stick. the second ball will follow a trajectory which is determined by the initial force (from the player) and friction. However when the second ball collides with the first one, the trajectory of the ball will be changed and also the first ball will move. But if the payer had not pushed the second ball, the first ball would have remained in rest.

Determinism is often misunderstood as that outcomes cannot be changed. But in fact, at least in Laplacian determinism, determinism only says that if you know the input, you also know the output: if you know that x+y=z, once you know both x and y, you automatically know z. However if don’t x, y or both, you cannot know z.

We can model the human mind as a function f of y and y: f(x,y)=z. Here are x and y what we can call external variables, and z is the internal state of the human mind. Now for every pair of x and y, there is one value of z; which makes this model a deterministic model of the mind. By changing x and/or y, we can control the state of the mind.

Even we do not have a free will, we can still suffer. Regardless of the (non)-existence of a free will, the reduction or elimination of harm is a good thing to do. By prohibiting harmful action and imposing penalties on such actions, we might reduce harm. How can this work?

First, punishment might act as a deterrent: the imposing of penalties might act as external variable which changes the state of mind z such that the person affected will not commit a crime. Even if the deterrence function of penalties only reduces the amount of crimes committed, it would be a good result. Secondly, punishment might change the way the criminal thinks: either the experience of punishment is such an unpleasant one, that he does not want to experience it again, or as result of punishment the criminal’s “mind function” is transformed from f(x,y) into g(x,y). Also in this case it would a good result, if crime is only reduced by some amount. Thirdly, punishment might remove a criminal from society (either by imprisonment or death), so he cannot commit any further crime.

None of these functions of punishment do require the existence of a free will. In fact the contrary is true, to some degree. In order for these function to work there should be some determinacy in the relation between punishments and criminal behaviour.

Prison reform

This post is based on a presentation I gave as part of an undergraduate course on Modern Political Philosophy.

Crime and punishment is a subject which should be taken into account by Space colonists. If one thing is certain, there will be crime and criminals in any future Space settlement. Therefore we should consider how to deal with issues of criminal law. However, in this post we will not pursue what act should be considered as crime, only that we believe that the harm principle should be used to construe crimes [1].

An important question is whether we should use imprisonment as a punishment. Although the modern prisons system has been invented in the 18th century as a more civilized punishment, it has been controversial ever since. The prison reform movement is in fact as old as the institution itself.

American professor of criminal justice Peter Moskos argues [2]:

For most of the past two centuries, at least in so-called civilized societies, the ideal of punishment has been replaced by the hope of rehabilitation. The American penitentiary system was invented to replace punishment with “cure.” Prisons were built around the noble ideas of rehabilitation. In society, at least in liberal society, we’re supposed to be above punishment, as if punishment were somehow beneath us. The fact that prisons proved both inhumane and miserably ineffective did little to deter the utopian enthusiasm of those reformers who wished to abolish punishment.

Incarceration, for adults as well as children, does little but make people more criminal. Alas, so successful were the “progressive” reformers of the past two centuries that today we don’t have a system designed for punishment. Certainly released prisoners need help with life—jobs, housing, health care—but what they don’t need is a failed concept of “rehabilitation.” Prisons today have all but abandoned rehabilitative ideals—which isn’t such a bad thing if one sees the notion as nothing more than paternalistic hogwash. All that is left is punishment, and we certainly could punish in a way that is much cheaper, honest, and even more humane.

As an alternative Moskos make the following proposal in his book In defense of flogging [3]:

I propose we give convicts the choice of the lash at the rate of two lashes per year of incarceration. One cannot reasonably argue that merely offering this choice is somehow cruel, especially when the status quo of incarceration remains an option. Prison means losing a part of your life and everything you care for. Compared with this, flogging is just a few very painful strokes on the backside. And it’s over in a few minutes. Often, and often very quickly, those who said flogging is too cruel to even consider suddenly say that flogging isn’t cruel enough. Personally, I believe that literally ripping skin from the human body is cruel. Even Singapore limits the lash to 24 strokes out of concern for the criminal’s survival. Now, flogging may be too harsh, or it may be too soft, but it really can’t be both.

[…]

Because not only does incarceration not “cure” criminality, in many ways it makes it worse. From behind bars, prisoners can’t be parents, hold jobs, maintain relationships, or take care of their elders. Their spouse suffers. Their children suffer. And because of this, in the long run, we all suffer. Because one stint in prison so often leads to another, millions have come to alternate between incarceration and freedom while their families and communities suffer the economic, social, and political consequences of their absence.

The benefits of optional flogging as an alternative punishment for prison are clear, both for the criminal as for society. The life of the convict is not destroyed as is the case with years of imprisonment, but is still punished for his crimes. For society the main benefit is the reduced costs of administering justice.

Of course, Peter Moskos realizes that some criminals should be locked up, although this is not for the sake of punishment upon the criminal, but in order to protect society against the most dangerous criminals. Moskos further argues that optional flogging can and should be used in combination with restorative justice.

Video interviews with Peter Moskos:

In Defense Of Flogging As Alternative To Prison (CNN, 4.18 min)

In Defense of Flogging: Controversy Over Prisons and Punishment (PBS Newshour, 6.15 min)

Links

Review of Peter Moskos’ In defense of flogging by The Economist

Interview with Peter Moskos in Salon

Notes

[1] We see the harm principle as a rule of thumb rather than as an absolute rule. We acknowledge that this principle will not work in some circumstances, however we believe it is appropriate as a general rule.

[2] Peter Moskos, In defense of flogging in The Chronicle Review, April 24, 2011. (Visited on April 6, 2013).

[3] See previous note.