Mistakes of Anger

Burning of Sodoma - Alexander Bida

Retribution is sneaky business.  It hides in the shadows, waiting for a crime vicious enough to warrant it, brazen enough to distract us momentarily so that it may rise up and plant itself in our feeble minds.

I came across a terrible case of a young girl "in special ed" who wasn't listened to by school officials when she accused a boy of raping her.

Following instructions from the school, the girl wrote an apology to the boy she accused of raping her and had to personally give it to him, according to the lawsuit. She was then expelled for the remainder of the 2008-09 school year. The school also told "juvenile authorities" that she filed a false report.
The girl returned to the middle school for the 2009-10 school year and tried to avoid the boy, according to the lawsuit. It didn't work. She was sexually assaulted again but didn't tell anyone because she was afraid of being expelled again, her lawyers wrote in the lawsuit. She was allegedly raped a second time Feb. 16, 2010.
School officials were notified of the incident and allegedly doubted the girl's claim, saying they'd "already been through this," according to the lawsuit. The girl was also examined and found to have been sexually assaulted. However, she was suspended from school for "disrespectful conduct" and "public display of affection," her lawyers wrote in the lawsuit.

Who would be blamed for expressing outrage, disgust, and anger upon hearing of such a case.  Yet I was reminded of a grave mistake we allow ourselves to make, when I read the following commentary on the story (of which a great number of other commenters expressed approval).

"The officials responsible for the girl's plight will rot in hell. They should get a second term in hell for blaming the hapless victim -- a special ed middle school girl."

It is so important that we remember that while what these people did was (assumedly) wrong, there are very strong causal mechanisms driving people to make decisions like this.  Blaming the victim is common in rape cases, as is a likelihood of bias against those in special ed (whether cognitively or behaviorally challenged).  There is also the bias against transparency and accountability.

So, there are social and cultural power dynamics at play, as well as no doubt everything that goes into that in a persons' development that allows a person to "do the right thing" in situations where their conscience might be tested.  This could be any number of things - possibly their ability to stand up to a more dominant co-worker or boss, especially if there are gender, racial or class dynamics there, not to mention the interaction of temperamental components.

Without a more detailed investigation, we'll never know what lead the district officials to make what appears a terribly wrong-headed decision.  But from what we know about human development, culture, society and history, we can make reliable predictions about what may or may not have gone on behind closed doors.

What we don't really know, however, is how it could have been possible for the officials not to have had their decisions determined by larger social factors as well as their own individual life histories.  In fact, I submit it is impossible to imagine how they could simply *choose* on their own to make an immoral decision; that is, to make a decision that was removed from any prior emotional or rational causality.

Thus, to suggest anything like their deserving eternal damning punishment - or even any retributive punishment at all - would be a poor trick to play on what amount to tragic individuals caught up in a web of causality that began long before their birth, gave rise to their limited consciousnesses, and caused them to take the actions they did.


It has been suggested that the original biblical story of Sodom was written not in sexual condemnation, but merely as a response to a perceived inhospitality of the inhabitants of the city.  In either case, sexual or no, would not God's wrath having rained down on the souls within, burning them alive for nothing more than rudeness  at best, sexual impropriety at worst, be a prime example of over-reaction's bloodlust being paraded as "justice"?  Maybe the better lesson ought to be that all of us continually be searching to quell our own silly desire for retribution, deserved as we might think it in the heat of the moment?

Instead, let us mourn the sad events that unfolded, let us help the victim, let us take steps to hold the officials accountable so as to maintain the integrity of their office as well to deter similar future behavior, let us chastise them with an appropriate sanction so that they may find some measure of rehabilitation in their wrong-doing.

The Executioners

Another tragic mass-murder.  This time in Norway, a country that does not put its criminals to death.  Questions arise to as to what this man, clearly culpable, deserves.

But what does it mean for him to “deserve” anything? Should he be made to feel uncomfortable as a sort of payback for the pain he caused? How could he possibly suffer enough?
You could torture him for the rest of his life and it wouldn’t even come close to the sadness he has caused. Could the manner of suffering even be replicated?

Would it make people feel better to see him suffer? How much suffering would be enough? Surely there could never be a knife long enough, or a whip fast enough.

Is there some “debt” to society that he must pay back? What would that transaction be? What could possibly be done with his blood?

Maybe what we seek in vengeance is a vain attempt to erase the past, because we did not *deserve* what he did to us. Maybe we seek to right some cosmic wrong we see in the universe, by hammering our dull and useless limbs against the sky, in vain. Yet, there is nothing we can do, and this final truth is too much to bear.

But, maybe it doesn’t have to be. Maybe by acknowledging our humble place in this violent world, we can make some sort of peace. Horrific things happen to us, everyday, sometimes just as brutally – plane crashes, car wrecks, volcanoes, hurricanes, tidal waves, etc.

Yet where are the calls for vengeance then? Who is to pay the debt? Only a fool would demand justice. And thus these tragedies are so much more honorable, and less troublesome. Who would blame an earthquake, nothing more than the forces of nature at work?

And so the question is: how is the murderer any less of a force of nature? He is either clearly a man with a troubled life, or a psychopath. In either case, it had nothing to do with his ability to make a rational decision. He was an assembly of factors that resulted in a coordinated force of destruction and evil, a walking tornado, a talking plague.

And yet what may be most disturbing of all, is that unlike most natural disasters, society is at least partially to blame. From reading the man’s manifesto it was clear that he had plenty of help in the formulation and determination of his nightmarish plans. In fact, we’ve heard similar remarks from our elected politicians, pundits, and friends and neighbors.

He is certainly guilty. But so too are we.

When Justice Doesn't Feel Like Justice

The Gilded Cage - Evelyn de Morgan

While discussing the DSK case, Katherine Mangu-Ward (Reason) and Erica Grieder (The Economist) have an interesting discussion of the philosophical uncertainty surrounding the court system, in particular the jury selection process.

I was reminded of my own experience as a juror.

A couple of years ago I served on a jury in a rape trial. I would certainly say it was one of the most profound experiences of my civic life. At the end of the process I had much more conflicting views about our legal system - not that it was necessarily flawed, I think it does a pretty good job considering. But it raised many philosophical issues for me, as well as a sad sense that serious mistakes can be made by well-intentioned people.

So, our case was a young woman accusing an older man of rape. They were both meth addicts, and by the end of the trial, neither seemed trustworthy in the slightest. The two had been "partying" for almost 2 days straight - going from house to house, cavorting with sketchy people, until finally ending up with another woman in a tiny, dilapidated auto trailer lit by an extension cord, its windows covered in tin-foil, where they smoked a bit of crack. Up until now the stories aligned, but it was at this point that it became a he-said, she-said.

She claimed he and the other woman raped her. He claimed it was consensual. She fled to a nearby fast-food place, called her boyfriend. He was upset with her for having been where she was. She then told him she was raped. They went to the ER, where the rape kit turned up nothing.

We deliberated for a couple of hours, and found him not-guilty. However, we almost unanimously agreed that he had probably done it. Yet we simply didn't feel we could say so beyond a reasonable doubt. It seemed just as likely that she was lying, considering her past behavior demonstrated in the testimony.

Did we do the right thing? I don't know. I feel like the question was exactly this: is it better to let a guilty man go free or to lock up an innocent man? If we were wrong, he would certainly be facing years in prison for a crime he didn't commit. I remember one female member of the jury breaking into tears. The defendant seemed perfectly capable of being a rapist, based on prior testimony, but there just wasn't any clear evidence that he had done so.

We walked solemnly back into the courtroom and almost hung our heads in shame. We did what made us uncomfortable, but that we felt was right. When it was over, we simply walked out into our normal lives, leaving the accuser behind, likely in sadness and anger.

So the question is this: what happens when a crime is committed. but there is no evidence? We kept looking for it, hoping to find something strong enough to back up our intuition. But there just didn't seem to be. And you can't convict someone based on intuition.

Adding to the vagueness and unease I felt was the sense also that I was unqualified to judge the case. Before we went into deliberation, we were read an enormously long and difficult to interpret series of instructions, many of which we were informed only applied in the state of California. I remember sitting in the deliberation room, wishing I could talk to the judge, to the lawyers, to the defender and the accused. But all of that is designed to be taken care of in testimony.

Would I have been more comfortable making my decision had I had legal training? Or possibly experience in forensics or rape cases? Probably, but maybe not. We were a jury of peers. I was elected foreman, and one of the jurors was seriously worried about losing his job if we deliberated too long. He wanted to hurry up and give a verdict after little discussion, because all he could think about was supporting his wife and child.

There was an air of inexpertise about our decision that really bothered me. The judge and lawyers seemed to have done an excellent job, yet ultimately it was in the hands of mere people off the street. I'm sure there are very good, considered reasons for this. But I'm no legal scholar. Neither am I a scholar of the philosophy of jurisprudence.

A mere citizen, I took the facts as I saw them. And I did my best to deliver a verdict for justice. Did I? I'll never be sure. __________________

Reform through Dignity

Law and Grace, Franz Timmermann

Well God damn it, Keith Humphreys just made up for a terrible post with an excellent one.  He describes a piece for Newsweek he co-authored with Mark Kleiman, about a promising new sobriety program in South Dakota.  My favorite part of the piece:

For a criminal justice program, 24/7 Sobriety is remarkably respectful of offenders. I sat in one morning at a breath test station and watched dozens of people convicted of DUI come in, blow their breath test and then move along, each taking no more than a minute or two. The staff members were friendly, greeting each person by name and wishing each a good day. The building looked like a credit union. Because there were no uniformed officers, cell bars or guns visible, offenders with aversion to law enforcement would not have any instinctive ambivalence about coming in. The offenders also had some camaraderie among themselves, expressing pleasantries as they saw other offenders they knew in the testing station.

This is an excellent point. Society has to get over the notion that there are “bad people”. There are bad behaviors, and there are people who have a really hard time not doing them. But it is a moral imperative that we honor the dignity of every man, woman and child. Not only is this a moral issue, but as you point out, a utilitarian one as well. People do not respond well to humiliation. Most negative behaviors arise from dysfunctional feelings of low self-worth. They know right from wrong, but they choose the negative behavior because they lack the inner strength to choose otherwise. Doing the “right” thing seems unimportant because they don’t feel valued enough to show they have integrity – why bother?.

So what every “deviant” needs desperately is a sense that they are valued and that their behavior matters. In my classroom, my philosophy is that every kid is a “good” kid. There is nothing they can do to show me otherwise. There are rules, and consequences. But this is made clear, and then – most importantly – they are shown that they will be loved no matter what. As soon as a kid is on my side, the defiant behavior stops. They want to please me. They want to show me that they can do the right thing. I'm no miracle worker, and there are plenty of students who are just dealing with too many issues.  But regardless, this becomes one of the few places in their lives where they feel like they actually matter.  And that is a start.

Justice and Retribution

The SF Chronicle reports:

A jury found former BART police Officer Johannes Mehserle guilty Thursday of involuntary manslaughter, concluding that he did not intend to kill train rider Oscar Grant when he shot him in the back on New Year's Day 2009 but acted so recklessly that he showed a disregard for Grant's life.

There are questions as to whether this was an appropriate sentence, with many thinking he got off too easy.  Mark Kleiman agrees with the sentence and finds the retribution fair:

It’s good to see the people who otherwise condemn the pointlessness of harsh retributive justice making an exception in this case. Perhaps retribution is actually a legitimate function of punishment after all?

On what basis are we making a case for retribution? Who is he “paying” by his stay in prison?
Let me back up… I don’t believe in contra-causal free will, so he wasn’t ultimately responsible for his actions, in the sense that whatever impulses he was acting on were causing his actions. So if anyone should be “paying” for his crime, it should be the various factors that created in him the impulse to act as he did. But since that is a degree of knowledge that we can’t know, such retribution would be impossible. Retribution always seems to require causal knowledge that does not exist.

It seems then the only real question is one of utility. What deterrence does his incarceration provide to his future behavior, as well as other officers? Is he a danger to the community? And what level of rehabilitation is possible for him while imprisoned.

There is also the consideration of a sense of justice for the family. But if he was not ultimately responsible, their hurt, while understandable as a human impulse, seems misguided. If a tree falls on your house, whether or not you feel the need for justice, or revenge, and thus to chop it to bits, it seems misguided. Should you not be angry at the storm that blew it over? Or the low pressure and humidity?
All of this may seem too abstract. But that doesn’t mean it isn’t correct.

Civilization At its Best

I know I have a tendency on this blog to return to a recurring set of issues and themes.  And for those of you out there bothering to read I apologize for that.  But what you're witnessing is the process by which my ideas unfold and cohere.  So, without further adieu, I return to the concept of Student Capital.

Glenn Loury can really bug me at times, especially his more apologetic framing of issues.  And he's a smart guy so he gets ahead of himself at times, which can lead to a tendency for nebulous philosophical blundering.  But his Bloggingheads here, with Ross Levine (a fellow professor at Brown), on the subject of mass incarceration in the United States and what it says about our current level of moral coherence, is quite good.


Yet what I think it fails to adequately address  - and only so much can be expected from any 1 hour conversation - is the degree to which the problem of criminal justice is ultimately a problem of social justice, in that the level of criminality in society is proportional to the level of social development we are promoting through our political, economic and cultural institutions.

Because really, what what Loury is talking about is social determinism. And in case my use of that term be misunderstood, I mean that our lot in life, aside from luck, is determined by our access to human and social capital. With very few exceptions (learning disabled, mentally retarded, etc.), we all have a very similar capacity to become successful at birth (putting aside fetuses affected by high levels of maternal stress, environmental toxins, etc.).

What this means is that you take a kid and stick him in a home with little human and social capital, his chances of developing capital of his own are much lower. The reverse is true for kids from high capital homes. This has been studied at length. Differences in parenting can have profound effects on development. Cognitive skills, emotional development, vocabulary, etc. vary greatly between socio-economic groups - based solely on what the kid is being exposed to.

So this means kids are entering public education with enormous achievement gaps. And as currently structured, schools don't have near enough resources to even begin to make-up for what many children lack in human and social capital. As a constitutional right to education is based on the principle of a human right to some basic level of equality in capital - that a kid should be able to go into adulthood with the proper training to be competitive and successful, we are not guaranteeing that right.

While it is true that the parent should be responsible for raising their children, the fact is that many are not capable. This is either because they don't know how or because of their own lack of priorities, but either way it is a fundamental lack of human and social capital - they lack the emotional or knowledge skills to effectively develop in their children an adequate amount of capital. We can blame the parents all we want - but it isn't going to change the fact that meanwhile their children are being denied basic human rights. In so far as there is an argument that we should "shame" the parents into being better parents - it obviously doesn't work. As a utilitarian argument it is pathetic.

So, what can we as society do? Well, the obvious answer is strengthening public education. Our current attempts at "reform", when thought of as intervening responses to a human & social capital gap, are laughable. Because were they serious, we would be looking at results that would truly be the holy grail of social policy and justice: 100% graduation rate with an equality of cognitive, emotional, social, etc. skills. It's entirely possible. Schools have shown that poor kids can do it. But what it will take is a paradigm shift in thinking.

What needs to happen is, essentially, means-tested education. But the "means" is not a simple racial or economic calculation. Instead it is a multi-level, sophisticated assessment of each students' human and social capital: is their family intact? Is there drug use at home? Did both parents go to college? Is there a history of criminality? What neighborhood do they live in? What are their verbal, emotional and cognitive skills? How much basic knowledge do they have? Have they ever heard of Paris or Mt. Everest? Etc., etc.

This is obviously a monumental task. There's a realistic limit to the assessment regime any district can effectively implement. How does one go about verification? Can parents be tested as well? My guess is that if we seriously take this sort of project on, we could come up with some interesting solutions. In the end, instead of the basic education model - 30 kids, one teacher, library, free lunches, etc. - the emphasis needs to be on what I like to call "Student Capital". This is is basically a kid's human capital + social capital / their age. So for instance, one kid might come into Kindergarten with a score of 900 for her age. Another might only have a 250. Those kids have very different needs. Our social response should therefor be very different. This is targeted, efficient, soulful, community strengthening and revitalizing.

This is civilization at its best - doing its best for equality and brotherhood of man.

Punishing the Universe

I came across the following thought experiment:

If a pill were to be discovered that had a 100% cure rate for sex offenders. After taking this pill, the recidivism rate was 0% for adjudicated sex offenders. Would anyone step up to advocate that we could now simply send the adjudicated sex offender to the clinic for a pill and then return him on his merry way back home without any jail time or pure punishment?

 
The proposition was deemed absurd because, regardless of pragmatism, there are some things we must do simply because they are right.

Surely, if something is right then we ought to do it. But first we must determine if it is right. Something isn’t right because it is right. Maybe we can’t answer the question. But that seems all the more reason to ask it.

The point of the sex offender question is that it solves the practical question, but not the retributive one. The problem with it is that it assumes we know the full causes of sex-offenses. Because we don’t, we have to accept that it is purely genetic and that all prior behavior can simply be wiped away.

I think retribution is a basic human impulse. In our moments of pure reptilian idiocy, we even punish inanimate objects. Have you ever kicked a coffee table after stubbing your toe on it? We see this is punishing wild animals – it may have been perfectly natural for a mountain lion to have attacked a hiker, yet we feel the need to kill it out of pure revenge. We need to “make things right”. But when a house is crushed by a falling tree, we don’t feel the need to exact revenge. That would be silly, hah! My argument is that the human desire for retribution is no less absurd.

Now, it may be true that we’ll never go along with it. But we’ve come a long way in our understanding of human nature and crime. We no longer torture. We no longer have public executions. Although many conservatives no doubt experience frustration over this. We will likely always personally feel irrational emotions when the victims of crime. But that isn’t the way to structure society.

Some will argue that retribution serves a practical purpose in that it is therapeutic for the victim. I’d like to see studies on how this might work. How would you determine such a thing? One victim might require a few days imprisonment. Another might never get over it. I imagine that this is a false hope – a way of justifying revenge. But even if it works, it doesn’t make it right. What if prison wouldn’t work, but an amputation might? Or some old-fashioned torture?

In the end it still seems mysterious and barbaric. Maybe that’s all we are. But I’d like to think we can be better than that.

Who to Blame for Prison Rape?

via Matt Yglesias,  Liliana Seguara writes about the frightening prevalence of rape in American prisons.

It is probably impossible to know exactly how many prisoners are raped behind bars. “According to the best available research,” reports JDI, “20 percent of inmates in men’s prisons are sexually abused at some point during their incarceration. The rate for women’s facilities varies dramatically from one prison to another, with one in four inmates being victimized at the worst institutions.” With some 2.3 million people behind bars in the U.S., the implications are nothing short of a human rights and public health epidemic.                    

I guess the main rationale for allowing this to continue is that because we use prison as a deterrent, then rape (as well as all of the other violence that goes on) would be an extension of that pressure. Of course it is barbaric, and so its allowance must be tacit. But there is a widespread cultural willingness to indulge in our own fantasies of vengeance.  To the degree that we allow it, we are its perpetrators.

How we treat our prisoners is a powerful illustration of the incoherent way we think about human consciousness. We think they could have made different decisions, and so we lock them up. Yet the fact that prisons exist, and include such horrific conditions, seems an argument that deterrence doesn’t work – at least not for those that end up in prison. It seems the only evidence for deterrence working is the people who it pressured into not doing the crime.

So we have this massive population for whom deterrence did not work, and yet they are then forced to endure the punishment that ostensibly deters others. How could we show so little empathy? One reason I think is our willingness to indulge in vengeance.

It seems there are 3 main reasons for prison: deterrence, social protection, and rehabilitation. A fourth, perhaps falling under the category of deterrence, is punishment, more specifically social vengeance. As an emotion, it is purely selfish. Although it hides behind a facade of “justice”, all it really does is bring pleasure to the accuser. To the extent that it acts as a deterrent, it may be externally justified to a degree.

However its impulse is not driven by social policy considerations, but by basic emotional satisfaction. No one says, “I hope Bernie Madoff gets his in prison in order to deter future financial malfeasance.” The emotion is understandable, in that it comes from a sense of very real unfairness. But as a delivery of “justice”, it is little more than a satiation of emotional blood lust. In this respect, it isn’t really different than any other emotional satisfaction, such as sex, hunger or entertainment. This is evident in the rich history of literal revenge fantasy in popular entertainment.

The tragedy is that the criminal population, already a statistically disadvantaged demographic before landing in prison, becomes part of an organ of popular self-pleasuring. While each criminal represents an individual case of unfairness, the larger social stratification seems at least an equal injustice. And considering the inefficacy of prisons as social reform, as judged not only by their continued existence in such large numbers but by terrible recidivism rates, our stubborn refusal to reform them is absurd.