I.עַ֚יִן תַּ֣חַת עַ֔יִן
The Lex Talonis– “An eye for an eye and a tooth for a tooth”. We’re taught that our society rejected it as barbaric and harsh, and inclined itself further to mercy. However the maximum prison sentence in New York for felony assault is at least 3 years, and frankly, I’d rather lose an eye than spend three years in prison. In Texas if you knock the tooth out of a public official you’re looking at a minimum of 5 years, and up to life. Who are we to criticise the lex talonis as brutal?
II. The case against Draconian punishment in brief
First- That punishment hurts and reduces people, and thus its first order effect is necessarily bad.
Second- That available evidence tends to suggest that it is the degree of certainty of punishment, not the severity of punishment, that acts as a primary deterrent.
Third- That while there is a longstanding view that punishment, especially but not only imprisonment, incapacitates its target, preventing them from doing further wrong, people are able to do plenty of violence in prisons, and no it doesn’t count less just because it’s against other prisoners.
Fourth- That a cruel system of punishment works brutalise a society, making it accustomed to accepting cruelty.
Fifth- That punishment always hurts the vulnerable more.
Sixth- That there is little empirical evidence that harsher punishment truly makes victims feel better in the long run.
III. Social mercy as an alternative to prison abolition
I’m not a prison abolitionist, I think that a lot of people who believe they are prison abolitionists would if they were being honest with themselves, recognise they are not prison abolitionists either. Suppose Sam is going around and doing terrible things to people. He’s not going to stop. He cannot be reasoned with. In this very real case, we basically have two choices, kill him or constrain him against his will. I don’t like the first option if it can be avoided, and the second option, which I prefer, is just another way of saying prison. Ergo I’m not a prison abolitionist.
You could argue that prison isn’t just the custom of constraining people against their will, it’s a specific social formation. A society might constrain people against their will, yet for vastly different reasons and in vastly different ways- so different that to call it “prison” would be misleading. Back when I considered myself a prison abolitionist, this was how I squared it. I see the argument, but to my mind, if you have someone locked in a room or compound as punishment for a transgression on an ongoing basis that’s a prison. In the absence of slap-drones, that’s our only choice.
However, I try to come as close to being a prison abolitionist as is possible within the bounds of realism and I try to be consistent about it. I’m not one of those leftwingers who is in favour of carceral reform right up until someone we dislike is involved, thereupon becoming a screaming red-faced tabloid. I believe in reduced punishment even for the very nasty crimes. I believe that 99.9% of all prison sentences should be shorter and that a large majority of prison sentences shouldn’t be prison sentences at all. I say this despite recognising that most prisoners are incarcerated for violent crimes.
I am telling you this because I want to be clear that I’m not the “tough on crime” sort, despite not supporting prison abolition. I am softer on crime than the vast majority of the population perhaps even a majority of those who claim to support prison abolition.
I’m serious about that last bit. I’ve met “prison abolitionists” who, when pressed, will admit that their plan for the murderers, rapists, DV perps etc. is to kill them. I’ve met “prison abolitionists” who cheer when these same sorts of offenders are locked up and the key is thrown away. Now maybe this is the right attitude to take, I can’t rule that out for sure. However, it’s not “prison abolitionism” in any meaningful sense of the term.
Exactly through its utopianism, the concept of “prison abolition” has the potential to act as a thought stopper- a nice slogan without sincere belief, blocking serious discussions about a more humane justice system. At its best, it might be a provocative ideal, and in this capacity, I think it’s grand, but a social movement cannot thrive on provocations alone.
As an alternative to prison abolitionism, I wish to propose social mercy. Social mercy, intended as a complement to the ideal of social justice, is the position that society should, in general, be vastly more merciful than we are now to wrongdoers.
Social mercy distinguishes itself from the usual bleeding heart position in that it isn’t restricted to the formal punishments handed out by the justice system. It identifies a culture of vengeance and opposes it. Punishment and sanction is interwoven through institutions as diverse as schools, collective shaming and employment. We need to reconsider in all these cases the cruelties, big and large, we have become accustomed to. Social mercy then aims to make visible the culture of vengeance, and disassemble it.
Social mercy also separates itself from many other forms of bleeding heartism in that it recognises that while many who suffer punishment are innocent, many more are not. The prisons aren’t full to bursting with non-violent drug offenders and people who didn’t pay for copies of Winrar. Believing in mercy is hard, and it’s easy to think you’re merciful when really you just don’t think much has been done wrong. As Chesterton put it:
“For it seems to me that you only pardon the sins that you don’t really think sinful. You only forgive criminals when they commit what you don’t regard as crimes, but rather as conventions.”
IV. Opportunity cost, consequentialism and murder
A while ago I proposed on this blog that a politician deliberately misallocating money that could otherwise save a life is as bad as murder. A sceptical reader quite reasonably replied that if we’re going to start counting opportunity costs as murder then we’re all likely murderers. It doesn’t cost very much to save a life, after all, and most of us have saved nowhere near as many as we could. This follows from the consequentialist insistence that there is no distinction between acts and omissions- between killing and letting die.
There’s a couple of ways of responding to the reader’s concern that my view implies we are all killers. They rest upon trying to argue that, despite appearances, the average person could not have saved extra lives. I do not think they ultimately succeed.:
A) Psychological needs- Although it may be physically possible for me to put in the hours or forego the expenditure necessary to save a life, we are limited in what we can do by our psychological frailties and needs. Ergo it is not really possible for me to have saved additional lives.
B) Flipping- If we push ourselves too hard, we might give up on humanitarian ideals altogether. Hence by keeping time and resources that could have saved a life to ourselves, we’re actually maximising the total good that we do.
The problem with both these replies is that while there is such a thing as pushing yourself too far, I don’t think I’m so near that border. A reasonable maximum estimate of the cost of saving a life is $7000. I believe that I could have given at least an extra $7000 dollars throughout my life without exhausting my psychic stamina, or causing myself to give up on doing good altogether.
Thus there is at least one life that I could have saved, which I haven’t. So if killing and letting die are the same I am a murderer. Likely you are too. I’m almost certainly less dangerous than the average murderer who kills by act rather than omission, but that’s only partial comfort.
In order to escape this implication, we could give up on the idea that the opportunity cost of a life is equivalent to murder. The most obvious consequentialist way to do this- regarding the direct causation of death itself a bad consequence- still leaves us on the hook for the value of one life, surely a terrible thing. Probably then, we would have to ditch consequentialism if we wanted to put enough ground between us and the garden variety murderer to feel fully comfortable.
My preferred solution is to bite the bullet. There is a certain ethical sense in which I am no better than a murderer because I could have saved several extra lives fairly easily and didn’t. Obviously, I should try to do better in the future but how can I live with myself in a way which doesn’t trivialize my failings? Well, there’s a tough question. I would suggest that part of the way is developing mercy for others. How could you consistently forgive yourself and not forgive others? Does this contradict my previous insistence that we should regard politicians who knowingly squander opportunities to do good as worthy of the same anger as murderers? Maybe, I dunno, it’s difficult.
This sense, that forgiving others is the prerequisite to forgiving oneself, and that much vengefulness is really hypocrisy, is the true reason I can’t endorse draconian punishment.
V. Universal liability and the argument from moral luck
Call the situation in which we’re all culpable for terrible things, at least by omission, universal liability. If universal liability is true, we’re surely required to reconsider and critique punishment, because as things stand we’ve effectively built a punishment system on the lie that there is a vast gulf between ourselves and the wicked.
In addition to the argument in the previous section that most of us are culpable for the loss of several lives, I think universal, or near-universal, liability is true for another reason- one that doesn’t depend on consequentalism. If over a year, the wrong chain of events befell you, an ordinary person, there’s every chance you’d do something awful. In other words, you might do plainly awful things by commission and not merely omission were your circumstances very different. Only moral luck protects you.
The above isn’t just the argument from childhood determinism “oh if you had been raised different you might do awful things”. Rather I am saying that if the next year developed very badly for you right now, structured in a way so as to precisely coax you towards evil, most people would do great evil. If I am right all that stands between you and evil is chance. This seems like another form of universal liability, albeit a hypothetical kind. I will admit I can’t prove this, but I don’t think you can disprove it either, and that alone should shake your self-conception.
VI. Punishment in a world of universal liability
It was Jesus who said: “Why do you search for the splinter in your brother’s eye when there is a plank in your own.” An excellent question, but it’s more like planks all round. Admittedly some planks are much larger than others.
But although there’s something oddly humanistic about the fellowship of sinners with forests in their eyes that universal liability conjures, we can’t dwell in this space forever. On a personal level, wallowing in guilt won’t do us any good. On a social level, there is a small but sizeable chunk of the population that would commit horrors but don’t only because horrors are punished, and we must steel ourselves to deter these people.“Let he who is without sin cast the first stone” is nice as a philosophical meditation, but won’t work as a system of social governance.
So while we’re ending the essay by reinstating a distinction between those who “deserve” punishment and those who don’t on purely pragmatic grounds, I think it’s important to reflect on how tenuous those categories really are. At least pause before you throw that stone.