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< | Splitting to Punish | >
> | Scared to be Robinson | | | -- By NicoGurian - 11 Mar 2015 | |
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< | Traditional Law and Economics View of Crime and Role of Punishment | >
> | 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. | >
> | 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). | >
> | 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. | >
> | 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. | >
> | 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 | >
> | 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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