Law in Contemporary Society

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NicoGurianFirstEssay 12 - 29 Jun 2015 - Main.MarkDrake
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Scared to be Robinson


NicoGurianFirstEssay 11 - 28 Apr 2015 - Main.MattBurke
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 The question that remains is how do I reverse the splitting and let what I know consciously to be true speak to my unconscious fears?

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Comment: Matt Burke

When I read your title, I thought you would say that you didn’t want to be Robinson because, in short, he’s a miserable asshole—or at least, that’s my read on Robinson.

And maybe that idea’s somewhere in your essay. But my broader understanding of your point is that the criminal justice system has a problem: When a person does a thing that that one might call, in the word’s least technical sense, a wrong thing, at the same time, the person has a world of reasons for doing the wrong thing that one might call, in the word’s least technical sense, good reasons. This touches, in my mind, the distinction Eben laid out in class between loving justice and hating injustice.

Myself, I love justice more than I hate injustice—or at least, I enjoy loving justice more than I enjoy hating justice. What follows is that I would rather try work some good than try to remedy some wrong. It might be overstating the game therefore, but I think—sitting here now and thinking—that it also follows that, at the Tsarnaev trial, I’d rather be seated in the judge’s chair or the jury box than seated as counsel for the defense. And society needs all three, just as it needs the prosecutors. Maybe, then, it’s less about fusing the split and more about understanding the fault lines.

In any case, I think your essay tees up the thought nicely. Thanks for that.

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NicoGurianFirstEssay 10 - 23 Apr 2015 - Main.NicoGurian
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Splitting to Punish

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Scared to be Robinson

 -- By NicoGurian - 11 Mar 2015
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Traditional Law and Economics View of Crime and Role of Punishment

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Aversion to the practice

 
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One of the most popular ways presented to me so far in law school about how to think about punishing people for crimes is that punishment has a deterrent effect on criminal activity.
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Robinson is a smart and successful lawyer, who has managed to create a financially stable practice on his own. He makes deals with prosecutors to help the interests of his clients. He does not defend the mob, and he does not defend large corporate malfeasance. As far as the different practices Eben has presented us with so far, this one should be as appealing as a potential as the next one. Yet, I find myself (and, I would guess, many others do too) having a natural aversion to building this sort of practice. I have this aversion even though I think that the incarceration rates across the country are problematically high and I recognize that social forces have more to do with who ends up in jail than any inherent badness in those people. The problem, I think, is that even though I am consciously aware of it, I fall prey to the disassociation that happens more generally in society, in which people outcast criminals as other so feel okay about punishing them.
 
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That's 33 words, meaning "I have often heard here that punishment is meant to deter crime." Using 33 where 12 will do is a habit to break.
 
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Splitting to justify

 
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Under this calculus, we put someone in jail for a given years in order to ex ante adjust the supposedly rational behavior of putative criminals. Richard Posner, invoking the philosophy of Jeremy Benthem, puts it this way: “People can be deterred from criminal activity by a punishment system that makes the cost of criminal activity greater than the value of at activity to them.” (emphasis added).
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Punishment is violent and cruel. The only way people can subconsciously except the harsh penalties exacted by the state on criminals is to disassociate themselves from criminals. This disassociation functions in a self-protective manner similar to the fission described in Something Split. For Wylie and his fellow lawyers, the only way to handle the knowledge that a given project they are working on “is going to ruin the lives of thousands of people and their families” is to subconsciously sublimate those real feelings into money and power. Similarly, the only way for people to handle the imposition of harsh sentences that will ruin the lives of thousands of people and their families is to outcast them as something fundamentally different. In this framing, social and economic forces as well as pure moral luck no longer play a role. Rather, the reason for why someone is a criminal becomes something inherently wrong in him. The split self is thus someone who made the right choices, avoided temptation, and stayed on the straight and narrow. The criminal is someone who simply failed where we succeeded. This failure makes them bad and fit for punishment.
 
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Why is this an unattributed quotation rather than a link? You're on the Web.
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Intellectually bankrupt

 
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I understand intellectually that this splitting and outcasting is a subconscious tool to justify punishment and to reassure ourselves of our place in society. I understand that the only real difference between a client of the Harlem public defender’s office and me might be that he was born just a little to the north of me on the very same island. Additionally, one of the key themes we have discussed this semester is that conscious “reasons” for human behavior will never adequately explain anything. So any notion of criminal behavior that tries to point to conscious failures or bad choices as evidence of some inherent wrongness does not hold water.
 
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The two biggest assumptions underlying this way of thinking, that the point of punishment is deterrence and that people are rational actors consciously reacting to “costs” and “benefits”, do not comport with either data on the effect of imprisonment or basic understandings of human social activity as discussed in class.
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Yet still so powerful

 
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One is an assumption, the other is a conclusion.
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Yet I still am scared to become a criminal defense lawyer and start a practice like Robinson’s. I cannot help but think that, given the privilege I have of choosing what practice to start, that there are more deserving causes and more deserving people. This idea of “deserving” or not is a direct outgrowth from the idea that criminal behavior can be attributed to conscious choices, one I know is not adequate as a theory of behavior. So one split I feel is the fear of representing someone who does not deserve it while at the same time understanding that the very foundation of this way of thinking is wrongheaded. Another split is that I feel an aversion to becoming a criminal defense lawyer and at the same time think that the level of incarceration in this country is problematically high. The incarceration rate is, of course, a legal problem that lawyers can solve by using words in society. Developing a good criminal defense practice like Robinson or working in more of a policy capacity could actually make a difference on these issues. Furthermore, if any group needs skilled and passionate lawyers it is criminal defendants.
 
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A better way of understanding punishment is through the lens of Leff and Something Split. The process by which society punishes people and labels them criminals mirrors the “fission” or splitting of the corporate lawyer in Something Split. Just like for Carl Wylie, society splits itself into different people when it punishes to protect itself from the reality of its violence and crime.
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Do not have same fear of prosecution

 
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A better way to understand something is by a broad general comparison to something else not yet introduced or agreed upon? I don't think that's apparent at all.
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The uneasiness I have about thinking into the future and seeing myself as a criminal defense lawyer does not rear its head in the same way if I think about becoming a prosecutor. Prosecutors actually put people in prison – they are the ones who help to maintain the incarceration rates I find so problematic. Yet, it just feels so much safer to think about becoming a prosecutor. It feels like my hands would be so much cleaner, even though I know for a fact this would not be the case. Eben asked us if we could handle the responsibility, like Judge Weinfeld did, of deciding how long to put someone in jail for. When Eben asked the question, my immediate thought was that yes, I could shoulder the responsibility. It would be difficult and painful, but I could reason within myself that I could perform the duty fairly and justly. Thinking about it now, however, maybe this is just my version of unconsciously sublimating my guilt not into money and status like Wylie, but into some form of fairness and justice as a way to handle “ruining the lives of thousands of people and their families.”
 
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Traditional View Does Not Comport with Data

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The question that remains is how do I reverse the splitting and let what I know consciously to be true speak to my unconscious fears?
 
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The patterns of imprisonment and crime in this Country do not support the Posnerian view of punishment. There are over 2 million people imprisoned in the United States, compared with 1.2 million in 1991. The incarceration rate increased from 461 in 1990 to 787 in 2008, even though the rate of violent crimes has been independently dropping consistently since 1997. By way of comparison, the incarceration rate in Sweden is 74 while the violent crime rate is three times less than that of the United States. In fact, the strongest relationship data give us is that thing that sending someone to prison does is make them commit more crimes. The National Institute for Justice recently put out a report that tracked 400,000 prisoners in 30 sates and found that after three years more than 70% had been rearrested.

Why is there no link to a document you are heavily depending on?

How does that statistic prove that "the strongest relationship data give us is that ... sending someone to prison make[s] them commit more crimes"? It doesn't even constitute evidence of that proposition, let alone prove the relationship, let alone prove that relationship more than it proves everything else, which is what you've claimed.

In other words, the data proves exactly the opposite of what the Posner hypothesis would suggest. Instead of having created deterrence, our system of mass incarceration has made more people criminals for longer periods of time, inflicting great personal and societal harm.

No, it hasn't proved that, and Posner hasn't been proven wrong any more than he can be proven right, because the deterrent value of punishment cannot be generally proven either way. Why do you think you must prevail on this argument at that level of generality in order to have something useful to say here?

Fallacy of Rational Actor Explains Lack of Conformity Between Data and Theory

The underlying assumption running through the entire traditional view of the punishment-as-deterrence theory is, as Posner writes, that man is a “rational maximizer of his ends in life.” As we have discussed in class, this mode of analysis — trying to explain human behavior based on the reasons people give — lacks a connection to reality. Just like we do not go from Hamilton Deli to Westside Market to Morton Williams comparing deodorant prices, people contemplating rape are not actively weighing costs and benefits when deciding whether to act. This fundamental flaw in the theory explains why the deterrence theory does not work.

No, it does not. Surely you can manage to have a theory of deterrence without having a narrowly rationalist model of human behavior. They're not directly connected, merely associated in your argument so far.

Society Experiences Fission When it Punishes

The real explanation for crime that the law and economics theorists completely miss is that society as a whole experiences fission just like Carl Wylie does. Something Split explains that corporate lawyers, in order to deal with the anger and shame created in themselves by their work, sublimate their real feelings into money, status, and power. The anger - the “poison” - builds up so much that they must be “shizoids,” constantly splitting themselves.

Once again, why do you have to have "the real explanation," as though there were a real explanation for "crime"? Never mind that you have only a metaphor to peddle, there are good reasons for peddling it. But if you try to sell your metaphor as the only product we will ever need, we as readers are certain not to buy it.

Likewise, mass incarceration follows the same pattern. As Robinson taught us, it is not just corporate lawyers that “commit violence against themselves and acts of violence against others,” we all do, our own personal mens rea. Thus, like the lawyer, society needs to protect itself by splitting off the malignancies into what we label criminals because the inner conflict of each individual’s subconscious is too much for us to bear. Once split, we can play Goffman’s game, having one split version of ourselves play the “law and order” role while the other version is not as hard working as “law and order,” is less committed to family and to god. Whatever tension between a given creed’s normative values and a person’s actual life can be flushed away by this other version of himself, always on his way to Rikers or Sing Sing. The fact that we deal with mass incarceration simply reinforces this splitting because our subconscious feeds off of the repetition of imprisonment. The constant presence of a large crime committing population allows us to think that our split self is really our whole self, and that our faults and crimes, whatever they might be, are not so bad.

So What?

Understanding the reasons behind punishment through the lens of Something Split is important on multiple fronts. First, it provides another important example of how the assumption of the rational maximizer as the subject of what the law is supposed to reflect is just a distraction. Further, understanding the role of protective splitting as an engine of punishment in society can inform how we formulate our laws about crime and sentencing. It should make first legislators in writing statutes and then judges and juries in adjudicating cases more reflective and self-critical. Because the subconscious is so often left out of policy discussions, the need for introspection is never though of in the legal or political context. Yet without introspection society as a whole will - like poor Carl Wylie’s colleague - will never confront the anger, poison, and shame all around us.


The comments are still available in the "History" of this page. But the next draft will be sufficiently unlike this one that the comments will no longer be directly relevant.
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NicoGurianFirstEssay 9 - 14 Apr 2015 - Main.EbenMoglen
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Splitting to Punish

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Traditional Law and Economics View of Crime and Role of Punishment

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One of the most popular ways presented to me so far in law school about how to think about punishing people for crimes is that punishment has a deterrent effect on criminal activity. Under this calculus, we put someone in jail for a given years in order to ex ante adjust the supposedly rational behavior of putative criminals. Richard Posner, invoking the philosophy of Jeremy Benthem, puts it this way: “People can be deterred from criminal activity by a punishment system that makes the cost of criminal activity greater than the value of at activity to them.” (emphasis added). The two biggest assumptions underlying this way of thinking, that the point of punishment is deterrence and that people are rational actors consciously reacting to “costs” and “benefits”, do not comport with either data on the effect of imprisonment or basic understandings of human social activity as discussed in class. A better way of understanding punishment is through the lens of Leff and Something Split. The process by which society punishes people and labels them criminals mirrors the “fission” or splitting of the corporate lawyer in Something Split. Just like for Carl Wylie, society splits itself into different people when it punishes to protect itself from the reality of its violence and crime.
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One of the most popular ways presented to me so far in law school about how to think about punishing people for crimes is that punishment has a deterrent effect on criminal activity.

That's 33 words, meaning "I have often heard here that punishment is meant to deter crime." Using 33 where 12 will do is a habit to break.

Under this calculus, we put someone in jail for a given years in order to ex ante adjust the supposedly rational behavior of putative criminals. Richard Posner, invoking the philosophy of Jeremy Benthem, puts it this way: “People can be deterred from criminal activity by a punishment system that makes the cost of criminal activity greater than the value of at activity to them.” (emphasis added).

Why is this an unattributed quotation rather than a link? You're on the Web.

The two biggest assumptions underlying this way of thinking, that the point of punishment is deterrence and that people are rational actors consciously reacting to “costs” and “benefits”, do not comport with either data on the effect of imprisonment or basic understandings of human social activity as discussed in class.

One is an assumption, the other is a conclusion.

A better way of understanding punishment is through the lens of Leff and Something Split. The process by which society punishes people and labels them criminals mirrors the “fission” or splitting of the corporate lawyer in Something Split. Just like for Carl Wylie, society splits itself into different people when it punishes to protect itself from the reality of its violence and crime.

A better way to understand something is by a broad general comparison to something else not yet introduced or agreed upon? I don't think that's apparent at all.
 

Traditional View Does Not Comport with Data

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The patterns of imprisonment and crime in this Country do not support the Posnerian view of punishment. There are over 2 million people imprisoned in the United States, compared with 1.2 million in 1991. The incarceration rate increased from 461 in 1990 to 787 in 2008, even though the rate of violent crimes has been independently dropping consistently since 1997. By way of comparison, the incarceration rate in Sweden is 74 while the violent crime rate is three times less than that of the United States. In fact, the strongest relationship data give us is that thing that sending someone to prison does is make them commit more crimes. The National Institute for Justice recently put out a report that tracked 400,000 prisoners in 30 sates and found that after three years more than 70% had been rearrested. In other words, the data proves exactly the opposite of what the Posner hypothesis would suggest. Instead of having created deterrence, our system of mass incarceration has made more people criminals for longer periods of time, inflicting great personal and societal harm.
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The patterns of imprisonment and crime in this Country do not support the Posnerian view of punishment. There are over 2 million people imprisoned in the United States, compared with 1.2 million in 1991. The incarceration rate increased from 461 in 1990 to 787 in 2008, even though the rate of violent crimes has been independently dropping consistently since 1997. By way of comparison, the incarceration rate in Sweden is 74 while the violent crime rate is three times less than that of the United States. In fact, the strongest relationship data give us is that thing that sending someone to prison does is make them commit more crimes. The National Institute for Justice recently put out a report that tracked 400,000 prisoners in 30 sates and found that after three years more than 70% had been rearrested.
 
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Fallacy of Rational Actor Explains Lack of Conformity Between Data and Theory

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Why is there no link to a document you are heavily depending on?
 
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The underlying assumption running through the entire traditional view of the punishment-as-deterrence theory is, as Posner writes, that man is a “rational maximizer of his ends in life.” As we have discussed in class, this mode of analysis — trying to explain human behavior based on the reasons people give — lacks a connection to reality. Just like we do not go from Hamilton Deli to Westside Market to Morton Williams comparing deodorant prices, people contemplating rape are not actively weighing costs and benefits when deciding whether to act. This fundamental flaw in the theory explains why the deterrence theory does not work.
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How does that statistic prove that "the strongest relationship data give us is that ... sending someone to prison make[s] them commit more crimes"? It doesn't even constitute evidence of that proposition, let alone prove the relationship, let alone prove that relationship more than it proves everything else, which is what you've claimed.
 
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Society Experiences Fission When it Punishes

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In other words, the data proves exactly the opposite of what the Posner hypothesis would suggest. Instead of having created deterrence, our system of mass incarceration has made more people criminals for longer periods of time, inflicting great personal and societal harm.
 
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The real explanation for crime that the law and economics theorists completely miss is that society as a whole experiences fission just like Carl Wylie does. Something Split explains that corporate lawyers, in order to deal with the anger and shame created in themselves by their work, sublimate their real feelings into money, status, and power. The anger - the “poison” - builds up so much that they must be “shizoids,” constantly splitting themselves.
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No, it hasn't proved that, and Posner hasn't been proven wrong any more than he can be proven right, because the deterrent value of punishment cannot be generally proven either way. Why do you think you must prevail on this argument at that level of generality in order to have something useful to say here?
 
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Likewise, mass incarceration follows the same pattern. As Robinson taught us, it is not just corporate lawyers that “commit violence against themselves and acts of violence against others,” we all do, our own personal mens rea. Thus, like the lawyer, society needs to protect itself by splitting off the malignancies into what we label criminals because the inner conflict of each individual’s subconscious is too much for us to bear. Once split, we can play Goffman’s game, having one split version of ourselves play the “law and order” role while the other version is not as hard working as “law and order,” is less committed to family and to god. Whatever tension between a given creed’s normative values and a person’s actual life can be flushed away by this other version of himself, always on his way to Rikers or Sing Sing. The fact that we deal with mass incarceration simply reinforces this splitting because our subconscious feeds off of the repetition of imprisonment. The constant presence of a large crime committing population allows us to think that our split self is really our whole self, and that our faults and crimes, whatever they might be, are not so bad.
 
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Fallacy of Rational Actor Explains Lack of Conformity Between Data and Theory

 
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So What?

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The underlying assumption running through the entire traditional view of the punishment-as-deterrence theory is, as Posner writes, that man is a “rational maximizer of his ends in life.” As we have discussed in class, this mode of analysis — trying to explain human behavior based on the reasons people give — lacks a connection to reality. Just like we do not go from Hamilton Deli to Westside Market to Morton Williams comparing deodorant prices, people contemplating rape are not actively weighing costs and benefits when deciding whether to act. This fundamental flaw in the theory explains why the deterrence theory does not work.
 
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Understanding the reasons behind punishment through the lens of Something Split is important on multiple fronts. First, it provides another important example of how the assumption of the rational maximizer as the subject of what the law is supposed to reflect is just a distraction. Further, understanding the role of protective splitting as an engine of punishment in society can inform how we formulate our laws about crime and sentencing. It should make first legislators in writing statutes and then judges and juries in adjudicating cases more reflective and self-critical. Because the subconscious is so often left out of policy discussions, the need for introspection is never though of in the legal or political context. Yet without introspection society as a whole will - like poor Carl Wylie’s colleague - will never confront the anger, poison, and shame all around us.
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No, it does not. Surely you can manage to have a theory of deterrence without having a narrowly rationalist model of human behavior. They're not directly connected, merely associated in your argument so far.
 
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
 
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Society Experiences Fission When it Punishes

 
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The real explanation for crime that the law and economics theorists completely miss is that society as a whole experiences fission just like Carl Wylie does. Something Split explains that corporate lawyers, in order to deal with the anger and shame created in themselves by their work, sublimate their real feelings into money, status, and power. The anger - the “poison” - builds up so much that they must be “shizoids,” constantly splitting themselves.
 
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Once again, why do you have to have "the real explanation," as though there were a real explanation for "crime"? Never mind that you have only a metaphor to peddle, there are good reasons for peddling it. But if you try to sell your metaphor as the only product we will ever need, we as readers are certain not to buy it.
 
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COMMENT (Abdallah Salam) -- sorry I had trouble finding another place to put the comment
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Likewise, mass incarceration follows the same pattern. As Robinson taught us, it is not just corporate lawyers that “commit violence against themselves and acts of violence against others,” we all do, our own personal mens rea. Thus, like the lawyer, society needs to protect itself by splitting off the malignancies into what we label criminals because the inner conflict of each individual’s subconscious is too much for us to bear. Once split, we can play Goffman’s game, having one split version of ourselves play the “law and order” role while the other version is not as hard working as “law and order,” is less committed to family and to god. Whatever tension between a given creed’s normative values and a person’s actual life can be flushed away by this other version of himself, always on his way to Rikers or Sing Sing. The fact that we deal with mass incarceration simply reinforces this splitting because our subconscious feeds off of the repetition of imprisonment. The constant presence of a large crime committing population allows us to think that our split self is really our whole self, and that our faults and crimes, whatever they might be, are not so bad.
 
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I enjoyed reading your text, thanks for writing it. Based on your social observations, what practical advice do you think can be given to legislatures and other government officials involved in the criminal justice system? For instance, you mention that incarceration, rather than deterring criminal activity, actually statistically increases it; what do you think ought to be done with respect to incarceration as a result? Do you think it ought to be abolished entirely as a method of punishment? Reserved for “extreme” cases only? Or preserved while reforming prisons and jails as well as “law enforcement” officers?
 
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So What?

 
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Abdallah - thanks for commenting. I think you ask the key question that the piece leads up to. I think the first point is that incarceration for what are considered low-level offenses needs to be drastically reduced if not abolished. If you look at the majority of people who are in Rikers based on low-level offenses, for instance, you find that the majority of them have either mental health problems or completely lack stable housing (or both). For these people, the "punishment" of jail time does nothing but (a) make their mental illnesses worse and (b) not address the underlying social, economic, and cultural forces that brought them into their situation in the first place. And I think it goes without saying that the prison system overall needs reform - we read about abuse from prison officials almost every day. Your point about "extreme" cases is probably the hardest? My gut says that there is still a role for incarceration for some people - especially people we think might be "Dangerous" again. But this is surely hard to quantify - and, more broadly, maybe I'm falling prey to my own faults/insecurities in wanting this type of punishment, too. I'd be curious to hear your take!
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Understanding the reasons behind punishment through the lens of Something Split is important on multiple fronts. First, it provides another important example of how the assumption of the rational maximizer as the subject of what the law is supposed to reflect is just a distraction. Further, understanding the role of protective splitting as an engine of punishment in society can inform how we formulate our laws about crime and sentencing. It should make first legislators in writing statutes and then judges and juries in adjudicating cases more reflective and self-critical. Because the subconscious is so often left out of policy discussions, the need for introspection is never though of in the legal or political context. Yet without introspection society as a whole will - like poor Carl Wylie’s colleague - will never confront the anger, poison, and shame all around us.
 
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COMMENT (Henry Ross) - Nico argues convincingly that a propensity to "split" our individual selves (and society) into "law-abiding citizen" and "felon" drives mass incarceration. I think we should keep that hypothesis in mind in when thinking about the practical advice Abdallah is seeking. Assuming that Nico's identification of the splitting phenomenon as the source of the problem is correct, I see several questions that need answers before we can start talking about specific legislative policies. (1) Is our concern that people subconsciously split themselves into good and bad? (2) If that is the concern, is there anything we can do to prevent splitting? As Jack's psychoanalyst discovers in Something Split, making people aware of their split nature may not produce good results either. (3) Or is the concern instead with how people subconsciously distinguish between good and bad when they inevitably do split (e.g., "I'm not the kind of bum who would smoke marijuana")? After all, this type of self-delusion might sometimes be desirable (e.g., "I'm not the kind of person who would rape") (4) Shouldn't we be more concerned about the "splitting" that drives recidivism? Or at least, isn't presenting the issue that way more palatable than telling "law-abiders" about their own mens rea? Nico, you seem to suggest that recidivism results from those whose prison experiences facilitate splitting in the opposite direction (e.g., "I'm locked up, so I'm a felon for life"), yet your essay focuses on the psyche of the law-abiders. (5) Is the law powerful enough to redefine our (the law-abiders' and the felons') subconscious categories of good and bad (e.g., will people stop thinking marijuana is bad if we stop imprisoning people for it)? If deterrence theory is a hoax, we may be skeptical of the ability of the law to influence our thinking in this regard too. (6) Sweden, pre-Reagan America, and many others seem to have promoted splitting in a socially desirable direction without having to lock away two or three million inmates as foils. Do places with less of an incarceration problem have less of a "civil war" (in Judge Day's words) going on, and is that because the criminal laws don't feed it? I've gone on too long already...
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A quick word on the original premise--are Nico's divisions and Judge Day's similar "civil wars" the direct outgrowth of psychological, subconscious splitting at the individual level? I think Eben expressed some skepticism about this idea a couple weeks ago, and I hope we can give it a closer look in class sometime soon.
 
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Comment (Abdallah Salam): After I read your response Nico, I wondered whether you felt equally comfortable about the different available theories of punishment - desert/retribution, deterrence, incapacitation, and correction - and if not whether this might be a useful starting point for you to determine what actual punishments you want to keep and which you want to reject. It seems that you think that some form of deterrence and incapacitation is good, at least sometimes, so maybe you want to keep the punishments that are based on these forms of justification but want to eliminate any "extra" punishment supported on desert/retribution or correction grounds? By the way, I just posted on the class webpage a few articles, two of which might be of interest to you: "Prison Planet" and “The high cost of calling the imprisoned”
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The comments are still available in the "History" of this page. But the next draft will be sufficiently unlike this one that the comments will no longer be directly relevant.
 
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Comment (Matt Burke): Your argument provides insight into some of the psychological processes underlying mass incarceration. I wonder, though, how the analysis looks through other lenses or at other layers of analysis? For example, your response to Abadallah above mentions that society itself is "split" along socio-economic lines.
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NicoGurianFirstEssay 8 - 02 Apr 2015 - Main.MattBurke
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 A quick word on the original premise--are Nico's divisions and Judge Day's similar "civil wars" the direct outgrowth of psychological, subconscious splitting at the individual level? I think Eben expressed some skepticism about this idea a couple weeks ago, and I hope we can give it a closer look in class sometime soon.

Comment (Abdallah Salam): After I read your response Nico, I wondered whether you felt equally comfortable about the different available theories of punishment - desert/retribution, deterrence, incapacitation, and correction - and if not whether this might be a useful starting point for you to determine what actual punishments you want to keep and which you want to reject. It seems that you think that some form of deterrence and incapacitation is good, at least sometimes, so maybe you want to keep the punishments that are based on these forms of justification but want to eliminate any "extra" punishment supported on desert/retribution or correction grounds? By the way, I just posted on the class webpage a few articles, two of which might be of interest to you: "Prison Planet" and “The high cost of calling the imprisoned” \ No newline at end of file

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Comment (Matt Burke): Your argument provides insight into some of the psychological processes underlying mass incarceration. I wonder, though, how the analysis looks through other lenses or at other layers of analysis? For example, your response to Abadallah above mentions that society itself is "split" along socio-economic lines.
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NicoGurianFirstEssay 7 - 01 Apr 2015 - Main.AbdallahSalam
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 COMMENT (Henry Ross) - Nico argues convincingly that a propensity to "split" our individual selves (and society) into "law-abiding citizen" and "felon" drives mass incarceration. I think we should keep that hypothesis in mind in when thinking about the practical advice Abdallah is seeking. Assuming that Nico's identification of the splitting phenomenon as the source of the problem is correct, I see several questions that need answers before we can start talking about specific legislative policies. (1) Is our concern that people subconsciously split themselves into good and bad? (2) If that is the concern, is there anything we can do to prevent splitting? As Jack's psychoanalyst discovers in Something Split, making people aware of their split nature may not produce good results either. (3) Or is the concern instead with how people subconsciously distinguish between good and bad when they inevitably do split (e.g., "I'm not the kind of bum who would smoke marijuana")? After all, this type of self-delusion might sometimes be desirable (e.g., "I'm not the kind of person who would rape") (4) Shouldn't we be more concerned about the "splitting" that drives recidivism? Or at least, isn't presenting the issue that way more palatable than telling "law-abiders" about their own mens rea? Nico, you seem to suggest that recidivism results from those whose prison experiences facilitate splitting in the opposite direction (e.g., "I'm locked up, so I'm a felon for life"), yet your essay focuses on the psyche of the law-abiders. (5) Is the law powerful enough to redefine our (the law-abiders' and the felons') subconscious categories of good and bad (e.g., will people stop thinking marijuana is bad if we stop imprisoning people for it)? If deterrence theory is a hoax, we may be skeptical of the ability of the law to influence our thinking in this regard too. (6) Sweden, pre-Reagan America, and many others seem to have promoted splitting in a socially desirable direction without having to lock away two or three million inmates as foils. Do places with less of an incarceration problem have less of a "civil war" (in Judge Day's words) going on, and is that because the criminal laws don't feed it? I've gone on too long already...

A quick word on the original premise--are Nico's divisions and Judge Day's similar "civil wars" the direct outgrowth of psychological, subconscious splitting at the individual level? I think Eben expressed some skepticism about this idea a couple weeks ago, and I hope we can give it a closer look in class sometime soon. \ No newline at end of file

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Comment (Abdallah Salam): After I read your response Nico, I wondered whether you felt equally comfortable about the different available theories of punishment - desert/retribution, deterrence, incapacitation, and correction - and if not whether this might be a useful starting point for you to determine what actual punishments you want to keep and which you want to reject. It seems that you think that some form of deterrence and incapacitation is good, at least sometimes, so maybe you want to keep the punishments that are based on these forms of justification but want to eliminate any "extra" punishment supported on desert/retribution or correction grounds? By the way, I just posted on the class webpage a few articles, two of which might be of interest to you: "Prison Planet" and “The high cost of calling the imprisoned”
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NicoGurianFirstEssay 6 - 27 Mar 2015 - Main.HenryRoss
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Abdallah - thanks for commenting. I think you ask the key question that the piece leads up to. I think the first point is that incarceration for what are considered low-level offenses needs to be drastically reduced if not abolished. If you look at the majority of people who are in Rikers based on low-level offenses, for instance, you find that the majority of them have either mental health problems or completely lack stable housing (or both). For these people, the "punishment" of jail time does nothing but (a) make their mental illnesses worse and (b) not address the underlying social, economic, and cultural forces that brought them into their situation in the first place. And I think it goes without saying that the prison system overall needs reform - we read about abuse from prison officials almost every day. Your point about "extreme" cases is probably the hardest? My gut says that there is still a role for incarceration for some people - especially people we think might be "Dangerous" again. But this is surely hard to quantify - and, more broadly, maybe I'm falling prey to my own faults/insecurities in wanting this type of punishment, too. I'd be curious to hear your take! \ No newline at end of file

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COMMENT (Henry Ross) - Nico argues convincingly that a propensity to "split" our individual selves (and society) into "law-abiding citizen" and "felon" drives mass incarceration. I think we should keep that hypothesis in mind in when thinking about the practical advice Abdallah is seeking. Assuming that Nico's identification of the splitting phenomenon as the source of the problem is correct, I see several questions that need answers before we can start talking about specific legislative policies. (1) Is our concern that people subconsciously split themselves into good and bad? (2) If that is the concern, is there anything we can do to prevent splitting? As Jack's psychoanalyst discovers in Something Split, making people aware of their split nature may not produce good results either. (3) Or is the concern instead with how people subconsciously distinguish between good and bad when they inevitably do split (e.g., "I'm not the kind of bum who would smoke marijuana")? After all, this type of self-delusion might sometimes be desirable (e.g., "I'm not the kind of person who would rape") (4) Shouldn't we be more concerned about the "splitting" that drives recidivism? Or at least, isn't presenting the issue that way more palatable than telling "law-abiders" about their own mens rea? Nico, you seem to suggest that recidivism results from those whose prison experiences facilitate splitting in the opposite direction (e.g., "I'm locked up, so I'm a felon for life"), yet your essay focuses on the psyche of the law-abiders. (5) Is the law powerful enough to redefine our (the law-abiders' and the felons') subconscious categories of good and bad (e.g., will people stop thinking marijuana is bad if we stop imprisoning people for it)? If deterrence theory is a hoax, we may be skeptical of the ability of the law to influence our thinking in this regard too. (6) Sweden, pre-Reagan America, and many others seem to have promoted splitting in a socially desirable direction without having to lock away two or three million inmates as foils. Do places with less of an incarceration problem have less of a "civil war" (in Judge Day's words) going on, and is that because the criminal laws don't feed it? I've gone on too long already...

A quick word on the original premise--are Nico's divisions and Judge Day's similar "civil wars" the direct outgrowth of psychological, subconscious splitting at the individual level? I think Eben expressed some skepticism about this idea a couple weeks ago, and I hope we can give it a closer look in class sometime soon.

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NicoGurianFirstEssay 5 - 26 Mar 2015 - Main.NicoGurian
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 COMMENT (Abdallah Salam) -- sorry I had trouble finding another place to put the comment

I enjoyed reading your text, thanks for writing it. Based on your social observations, what practical advice do you think can be given to legislatures and other government officials involved in the criminal justice system? For instance, you mention that incarceration, rather than deterring criminal activity, actually statistically increases it; what do you think ought to be done with respect to incarceration as a result? Do you think it ought to be abolished entirely as a method of punishment? Reserved for “extreme” cases only? Or preserved while reforming prisons and jails as well as “law enforcement” officers?

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Abdallah - thanks for commenting. I think you ask the key question that the piece leads up to. I think the first point is that incarceration for what are considered low-level offenses needs to be drastically reduced if not abolished. If you look at the majority of people who are in Rikers based on low-level offenses, for instance, you find that the majority of them have either mental health problems or completely lack stable housing (or both). For these people, the "punishment" of jail time does nothing but (a) make their mental illnesses worse and (b) not address the underlying social, economic, and cultural forces that brought them into their situation in the first place. And I think it goes without saying that the prison system overall needs reform - we read about abuse from prison officials almost every day. Your point about "extreme" cases is probably the hardest? My gut says that there is still a role for incarceration for some people - especially people we think might be "Dangerous" again. But this is surely hard to quantify - and, more broadly, maybe I'm falling prey to my own faults/insecurities in wanting this type of punishment, too. I'd be curious to hear your take!

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NicoGurianFirstEssay 4 - 25 Mar 2015 - Main.AbdallahSalam
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COMMENT (Abdallah Salam) -- sorry I had trouble finding another place to put the comment

I enjoyed reading your text, thanks for writing it. Based on your social observations, what practical advice do you think can be given to legislatures and other government officials involved in the criminal justice system? For instance, you mention that incarceration, rather than deterring criminal activity, actually statistically increases it; what do you think ought to be done with respect to incarceration as a result? Do you think it ought to be abolished entirely as a method of punishment? Reserved for “extreme” cases only? Or preserved while reforming prisons and jails as well as “law enforcement” officers?


NicoGurianFirstEssay 3 - 23 Mar 2015 - Main.NicoGurian
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NicoGurianFirstEssay 2 - 16 Mar 2015 - Main.NicoGurian
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NicoGurianFirstEssay 1 - 11 Mar 2015 - Main.NicoGurian
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Splitting to Punish

-- By NicoGurian - 11 Mar 2015

Traditional Law and Economics View of Crime and Role of Punishment

One of the most popular ways presented to me so far in law school about how to think about punishing people for crimes is that punishment has a deterrent effect on criminal activity. Under this calculus, we put someone in jail for a given years in order to ex ante adjust the supposedly rational behavior of putative criminals. Richard Posner, invoking the philosophy of Jeremy Benthem, puts it this way: “People can be deterred from criminal activity by a punishment system that makes the cost of criminal activity greater than the value of at activity to them.” (emphasis added). The two biggest assumptions underlying this way of thinking, that the point of punishment is deterrence and that people are rational actors consciously reacting to “costs” and “benefits”, do not comport with either data on the effect of imprisonment or basic understandings of human social activity as discussed in class. A better way of understanding punishment is through the lens of Leff and Something Split. The process by which society punishes people and labels them criminals mirrors the “fission” or splitting of the corporate lawyer in Something Split. Just like for Carl Wylie, society splits itself into different people when it punishes to protect itself from the reality of its violence and crime.

Traditional View Does Not Comport with Data

The patterns of imprisonment and crime in this Country do not support the Posnerian view of punishment. There are over 2 million people imprisoned in the United States, compared with 1.2 million in 1991. The incarceration rate increased from 461 in 1990 to 787 in 2008, even though the rate of violent crimes has been independently dropping consistently since 1997. By way of comparison, the incarceration rate in Sweden is 74 while the violent crime rate is three times less than that of the United States. In fact, the strongest relationship data give us is that thing that sending someone to prison does is make them commit more crimes. The National Institute for Justice recently put out a report that tracked 400,000 prisoners in 30 sates and found that after three years more than 70% had been rearrested. In other words, the data proves exactly the opposite of what the Posner hypothesis would suggest. Instead of having created deterrence, our system of mass incarceration has made more people criminals for longer periods of time, inflicting great personal and societal harm.

Fallacy of Rational Actor Explains Lack of Conformity Between Data and Theory

The underlying assumption running through the entire traditional view of the punishment-as-deterrence theory is, as Posner writes, that man is a “rational maximizer of his ends in life.” As we have discussed in class, this mode of analysis — trying to explain human behavior based on the reasons people give — lacks a connection to reality. Just like we do not go from Hamilton Deli to Westside Market to Morton Williams comparing deodorant prices, people contemplating rape are not actively weighing costs and benefits when deciding whether to act. This fundamental flaw in the theory explains why the deterrence theory does not work.

Society Experiences Fission When it Punishes

The real explanation for crime that the law and economics theorists completely miss is that society as a whole experiences fission just like Carl Wylie does. Something Split explains that corporate lawyers, in order to deal with the anger and shame created in themselves by their work, sublimate their real feelings into money, status, and power. The anger - the “poison” - builds up so much that they must be “shizoids,” constantly splitting themselves.

Likewise, mass incarceration follows the same pattern. As Robinson taught us, it is not just corporate lawyers that “commit violence against themselves and acts of violence against others,” we all do, our own personal mens rea. Thus, like the lawyer, society needs to protect itself by splitting off the malignancies into what we label criminals because the inner conflict of each individual’s subconscious is too much for us to bear. Once split, we can play Goffman’s game, having one split version of ourselves play the “law and order” role while the other version is not as hard working as “law and order,” is less committed to family and to god. Whatever tension between a given creed’s normative values and a person’s actual life can be flushed away by this other version of himself, always on his way to Rikers or Sing Sing. The fact that we deal with mass incarceration simply reinforces this splitting because our subconscious feeds off of the repetition of imprisonment. The constant presence of a large crime committing population allows us to think that our split self is really our whole self, and that our faults and crimes, whatever they might be, are not so bad.

So What?

Understanding the reasons behind punishment through the lens of Something Split is important on multiple fronts. First, it provides another important example of how the assumption of the rational maximizer as the subject of what the law is supposed to reflect is just a distraction. Further, understanding the role of protective splitting as an engine of punishment in society can inform how we formulate our laws about crime and sentencing. It should make first legislators in writing statutes and then judges and juries in adjudicating cases more reflective and self-critical. Because the subconscious is so often left out of policy discussions, the need for introspection is never though of in the legal or political context. Yet without introspection society as a whole will - like poor Carl Wylie’s colleague - will never confront the anger, poison, and shame all around us.


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Revision 12r12 - 29 Jun 2015 - 20:47:48 - MarkDrake
Revision 11r11 - 28 Apr 2015 - 17:22:16 - MattBurke
Revision 10r10 - 23 Apr 2015 - 13:20:41 - NicoGurian
Revision 9r9 - 14 Apr 2015 - 14:41:47 - EbenMoglen
Revision 8r8 - 02 Apr 2015 - 17:15:34 - MattBurke
Revision 7r7 - 01 Apr 2015 - 02:29:07 - AbdallahSalam
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