Ever since Skeptic magazine gained widespread distribution in bookstores, newsstands, and libraries in the early 1990s, we have received a steady stream of letters from prisoners (several a week), some to request free magazines and books, others to complain about the religious indoctrination they receive (both Christians and Muslims actively evangelize in prison), and a few to offer their own theories and conjectures about this or that scientific controversy that we covered. We even had a death-row inmate write to request that we devote a special issue of Skeptic to abolishing the death penalty, with his contribution as the lead article of course. After reading about what he did—multiple rapes and murders — we passed on the suggestion in honor of his victims. And in any case, he told me that even after his trial, conviction, and sentencing to death, cuffed and shackled to the seat on the way to prison, all he could think about was bolting out of the van and grabbing the first woman in sight so he could rape and kill her. I was relieved to know that death’s clock was ticking close to midnight for him.
As a libertarian I’m conflicted about the death penalty. On the one hand, from the victims’ families perspective, when it comes to first-degree murder — premeditated and with malice aforethought — my sense is that justice will only be served when the murderer is dead; an eye for an eye. And since the murderers didn’t worry about the humaneness of the death they forced on their victims, then I say fry ‘em ‘til their heads catch on fire and ol’ sparky runs out of juice. On the other hand, from a political perspective, I’m always leery about giving the state even more power, especially that over life and death; plus there is no reason to think that bumbling bureaucrats who run the government will magically transform into competent commissioners when it comes to the allocation of justice, as the Innocence Project has demonstrated in freeing 16 innocent people from death row based on irrefutable DNA evidence. As I said, I’ve not made up my mind on this issue.
Although we have largely avoided political controversies in Skeptic magazine, in our most recent issue (Vol. 15, No. 1) investigative journalist Steve Salerno’s article on the criminal justice system (“Criminal Injustice: The Flaws and Fallacies of the American Justice System”) generated a lot of mail in response to the questions he asked about “whether we’re punishing the right people for the right reasons, and even what constitutes a crime in the first place.” Which is worse, Salerno asks: “stealing a six-pack of beer from a 7-Eleven one time, or verbally abusing your wife, children and friends daily?” As well, given the current economic recession, Salerno argues “that corporate raiders and stock speculators — even when they break no actual laws — cause widespread job loss and severe economic dislocations in their pursuit of personal wealth and/or ‘maximum shareholder value,’” and that perhaps these too should be considered a punishable crimes. Finally, there is the problem of mistrials, planted evidence, coerced confessions, institutional racism in police departments, the criminalization of victimless (and harmless) crimes like prostitution and smoking pot, and the fact that “correctional institutions” are not really designed to “correct” criminal behavior, and one can’t help but be skeptical of the system we have.
Of the many letters from prisoners we received, one in particular stands out for its erudition and literary sophistication. I’ll only identify him by his prison I.D. #771782, incarcerated at the Clallam Bay Corrections Center in Clallam Bay, WA, where he is serving two life sentences plus 205 years for murdering his algebra teacher and two students when he was 14. #771782 fully admits his guilt even while agreeing with Salerno that “emotion and political expediency hold far more sway than facts in every stage of a criminal proceeding.” Nevertheless, when Salerno asks, “Cannot white-collar/financial crime of such disruptive magnitude be construed as a far greater offense against the social contract than any single crime against the person, up to and including homicide?,” #771782 answers no. “For starters, the ideology is ugly. This is a world of individuals, not interchangeable Alphas, Betas and Epsilons. We ascribe value to each individual. The social contract is useful only when it serves those individuals. Living individuals are arguably better served by a social contract riddled with white-collar crime than dead individuals are with one that’s white-collar free. I’ll hazard a guess that most victims of these crimes will agree. Ask Madoff’s victims which they’d prefer: to be bilked by him or killed by me.”
There is also the matter of making amends: “A white-collar criminal can, at least in theory, always redeem himself. Murderers cannot. Someone who’s scammed a billion can earn a billion. I, on the other hand, can never resurrect those I’ve killed. I’m vile enough to take a life, but not smart enough to restore it. Society recognizes this, and incorporates it into the criminal justice system.” Point well made.
A perennial issue in criminal justice is volition and accountability: in order to have a civil society we need to hold people accountable for their actions, and this assumes that people have free will and that their crimes were committed by choice. Despite this presumption, the trend in the social sciences is to look for and find mitigating circumstances, societal determining factors, and causal agents of crime outside of the criminals themselves. #771782 disagrees: “Hardship does not negate free will. Madoff and I could have chosen to be decent human beings rather than what we are.” Salerno noted that Madoff’s scheme led to at least two suicides, thereby justifying the moral equivalency argument between violent crimes and white-collar financial crimes. “That same choice is available for Madoff’s victims, no matter how tragic their loss. There is no need to commit suicide. If you’ve lost only your fortune, you are fortunate indeed compared to those whom I’ve hurt. You may be unemployed; maybe even destitute. But you’re alive, able to make or lose some more.”
What about juveniles? Doesn’t the justice system need overhauling here, as suggested by Salerno? #771782 agrees that “many juveniles are poorly served by declination into the adult system (I cannot honestly claim to be one of them),” yet notes that the argument “‘adult enough for the crime, adult enough for the time’ is far more prevalent among cable-news pundits and vote-lusty politicians than in a courtroom. When deciding whether to try a juvenile as an adult, the court must apply eight factors derived from the Supreme Court’s ruling on Kent v. United States,” and thus the criminal justice system has already nuanced this issue.
As for Gerry Spence’s observation (quoted by Salerno) that “correctional institutions do not correct anything” and that their “only real purpose is to punish people or keep them away from other people,” #771782 notes that this is another false dichotomy: “Punishment is a form of rehabilitation. When you punish your child for playing baseball in the house, it’s not because you get pleasure or a sense of justice from sending him to bed without supper. You simply want to protect your windows. You hope to condition your child to associate unpleasant consequences with the behaviors you’d like to inhibit.”
Many liberals think that conservatives want to just “lock ‘em up and throw away the key,” and that this negates the notion of rehabilitation and correction. Regardless of what liberals and conservatives actually believe and how that differs from what they accuse each other of believing, #771782 runs the thought experiment in a personal way: “I consume around $20,000 every year. I produce nothing. Thus, from a financial perspective, incarcerating me make little sense. To paraphrase Hannibal Lector: Any civilized society would either execute me or put me to some use.” But this isn’t so easy or practical: “Unfortunately, the capability to re-offend increases as we come into contact with more people and resources. What can nourish can kill. How can society calculate the odds of any one individual re-offending? And if I do, the consequences would be irreversible. From the perspective of society and its representatives, it makes sense in cases like mine to play it safe. Throw away the key.”
Taking the thought experiment one step further, #771782 makes this economic calculation with what could be done with the budget currently set aside to feed and house criminals like him: “The world’s resources are limited. Why not allocate them to, say, feed a hundred starving children instead? Would not society be better served? So why not execution? Why not dispose of me and spend the money I consume elsewhere? Posed with this question, I cannot offer any honest defense of my existence.”
So why do we keep murderers like #771782 alive? Emotion. “Rightly or wrongly, people value emotional experiences. One of those experiences is the sense of justice derived from making wrongdoers suffer in proportion to what they’ve made others suffer. Our victims feel good knowing we suffer. The question is what that satisfaction costs.” Consider this economic analogy from #771782:
Compare the complaint over the idleness of inmates to complaints about the inequality of wealth. In a world where wealth is constantly created and destroyed, the income gap is meaningless, provided it’s predicated on consensual trade. However, that matters little, because, as critics point out, unequal wealth promotes social instability. You could view wealth redistribution as the rich paying extortion money to those who have earned less. Likewise, you could classify throwing away the key as a sort of emotional ransom to those who cannot tolerate lighter sentences. Whether these things are logical doesn’t matter. Given our history as a species, we may have to do them simply to maintain social order. You could classify both phenomena as ransoms to our genes.
Ransoming our genes. Whatever else #771782 has been doing in prison, he’s obviously been reading, as these are not the idle scribblings of an uneducated man. But where does it leave us? If we want the perps to suffer as much as their vics, then maybe the death penalty is not the solution since in order to experience suffering you do need to be alive. On the other hand, happiness researches claim that our genetically hard-wired happiness set-point rebounds even after a devastating loss, such as that of a job, marriage, or spouse, and even the loss of freedom through incarceration, so if we abandon the death penalty maybe jail conditions need to be much harsher. Then again, think of the lives that could be saved by investing some of the monies spent on the long-term incarceration of prisoners on AIDS drugs, potable water, food to the starving, or mosquito nets for the malaria infested.
Finally, I think #771782 is on to something important in the notion of restitution. What is the purpose of the criminal justice system? Justice. Whatever else justice is (and it represents a lot of things in our complex society), justice for those who have been wronged should certainly incorporate restitution. The wrongdoer should make restitution for those who have been wronged. The victims of Bernie Madoff may glean some small satisfaction in knowing that he’ll rot away in a tiny cell until he dies, but how does that form of justice help recover their losses from his theft? Surely Madoff could be put to work under tightly controlled conditions doing something useful for society while simultaneously paying back those he wronged. Although the logistics of implementing total restitution for all crimes would be far more complicated than just throwing the wrongdoers in a cell and throwing away the key, it seems to me that at least in principle the goal of total restitution to the wronged is a worthy goal for an advanced civilization like ours.
In the meantime, as I said I remain conflicted on this issue and I’m not sure that science can help us find an answer. It may be a purely political issue that depends on what the majority wants at any given time, which grates on my rationalist sensibilities and our quest for universal principles. Are there any to be found here? Can science at least inform our politics, if not determine them? I invite your comments.
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Science and Criminal Injustice,