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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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