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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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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?

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!

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.

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”

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.