Tag Archives: punishment

Voluntary castration for sexual offenders?

In the comment section of our last post on indefinite sentencing, a few regular our commenters made several suggestions for the penal system of space settlements. One suggested that criminals serving an indefinite sentence should be given the opportunity to volunteer for medical experiments, another person argued for the reintroduction of exile. Fortunately for him, we have discussed the concept of penal transportation earlier on this site.

Penal transportation is a kind of exile, and the system of penal transportation we have proposed we combine the idea of indefinite sentencing with exile. In that post we also argued that certain sexual offenders are among the persons who need to be isolated from society.

The primary reason for sending sexual offenders to a penal colony is to prevent them from re-offending, but in case of these category of criminals there might be an alternative: voluntary castration. With castration we mean surgical castration. In countries as Germany and the Czech Republic it is a common practice to offer sexual offenders to undergo surgical castration in return of a reduce sentence. According to Czech authorities this practice is quite effective as almost none of the castrated convicts committed further crimes.

Our proposal is simple: if someone is convicted of a serious sexual crime and therefore sentenced to penal transportation, the convict is offered the choice between either surgical castration or serving an indefinite sentence in a penal colony, with the latter option being the default choice. Just as in the case of using prisoners as medical test subjects, no criminal will be forced to get castrated. Of course, proper regulations have to be devised to ensure the voluntariness of this choice.

A common objection to the idea of voluntary castration is that it’s unfair to female sex offenders. However, we can easily rebut this particular objection. First, most sexual offenders are male. Second there’s a female equivalence of castration, it’s called oophorectomy, the removal of a female’s ovaries.

According to Wikipedia oophorectomies have a multiple negative effects upon a women’s overall physiology. This includes the increased risk of osteoporosis, reduced life expectancy and an adverse effect on sexuality. Of these effects only the last is desirable. However, hormone-replacement therapy improves all of these effects, except sexuality. This because sexual desires in both male and female humans is triggered by testosterone, which is not included in a hormone-replacement therapy. Or more accurately for our purpose, it’s possible to exclude testosterone.

A more fundamental objection to castration as a method to prevent of sexual offenders to repeat their crimes, is that castration is only helpful for those sex offenders whose actions are sexually motivated. However, some sexual offenders aren’t motivated by sexual desires, but by other factors such as sadism. For those criminals castration is not an option, hence they will be transported to a penal colony.

NB. Our series on Education has been delayed due to the need for some more research and personal reasons.

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.

Penal transportation

Some criminals pose such a danger for society, that they need to be removed from society. By doing this citizens are protected from future crimes from said criminals. Such “punishments” are meant to deter or to rehabilitate criminals, the sole purpose of such treatment is incapacitation.

Nowadays prison sentences are often used to incapacitate dangerous criminals. In this post we will defend the “reintroduction” of the ancient penalty of penal transportation. First we will define penal transportation. Then we will analyse what kind of crimes should be punished by penal transportation. Thereafter we will discuss the practical aspects of this penalty.

What is penal transportation and what is the difference with prison? Penal transportation is the compulsory sending of people to a penal colony as punishment for a crime. Prison is any building used to lock people up as a punishment. In the case of penal transportation, the primary restriction is that the convicts remain in the colony. Further restrictions might be imposed upon them, but this not a prerequisite.

In our model the convicts are basically free to do whatever they want, except leaving the colony. Only communication with the outside world will be restricted, not to punish the convicts, but to protect civilized society from them.

This is a great difference with prison, where people are locked up in a small room for a large part of they day. We believe that long prison sentences are a kind of psychological torture, which only make people more dangerous than less.

Since incapacitation is the primary purpose of penal transportation, rather than rehabilitation, we should restrict this penalty to the really dangerous criminals, those who are likely to commit violent crimes again. Further this suggests that this penalty should be of indefinite duration. Under Napoleon’s Code Penal transportation was basically a life sentence, whilst under British law transportation was for time (although after completion this term, one had to pay for his own return).

An indefinite sentence means that the duration of the sentence is not predefined. In practise the actual time served depends on the prisoner’s own conduct. This allows the periodic re-evaluation of one’s sentence. Those criminals who remain a serious threat to society might remain in the penal colony for the remainder of their lives. A minimum term to be served of fifteen years, is in our opinion reasonable.

Peter Moskos suggests that pedophiles, psychopathic killers and terrorists should be locked up for life. We would add (serial) rapists and violent repeat offenders to his list.  These are the types of criminals for whom we believe, penal transportation is appropriate.

The idea of a penal colony is to relocate criminals to a remote place, in order to isolate them from society. The remoteness of the penal colony serves a protection measure in case a convict would escape from the colony. The greater the distance between the colony and society, the more difficult it will be for the fugitive to return to the country.

Any space habitat can serve as a penal colony, no one can escape with out a space ship. The suicidal nature of escaping of a space based penal colony will refrain convicts from attempting escape. However, some might manage to escape by stealing or hiding in visiting space ships. In that case long distances will also mean long travel time, and this will allow authorities to recapture the escapees before their effective return.

What should deportees do in such a space penal colony? Rather than to lock those convicts up in a small cell, they will be encouraged to perform labour. But unlike traditional labour camps, employment will and should be voluntary. However, taking up a job would increase the convict’s prospects of an early release. Besides employment, the prisoners will receive opportunities for education.

What kind of work will those convicts do? First, they have to be fed. Hence farming would be a major source of employment in penal colonies, as would be the processing of agricultural products. Mining would be another possibility, especially if these penal colonies are located in the Asteroid belt. But also some of the supervising of the prisoners could be done by convicts. Of course, the higher levels of supervision will be carried out by non-convicts. But convicts with demonstrated good behaviour could be rewarded with lower level supervision tasks.

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.