Thu Sep 19, 2002

Crime and Punishment, Part 3

My conversation with Iain Murray about crime and incarceration continues. (See 1, 2, 3 and 4 for previous installments.)

Iain claimed that “In a just society … the incarceration rate reflects the level of criminality in communities. Spending on corrections is therefore reactive.” He also said he thought “the American experiment is one of the closest to ‘justness’ that there has ever been.” I suggested that there were three difficulties with this: (1) We need to decide what’s illegal: the things you can be locked up for have a tendency to vary over time and across societies. (2) There’s room for argument over whether U.S. society is “one of the closest to ‘justness’ that there has ever been”. (3) I question whether it is a “plain fact” that the prison boom was “driven by an increase in violent crime.” Iain responds to the first two points:

Taking Kieran’s difficulties one at a time, the first is easily answered. We lock people up for such offenses as our elected representatives from time to time think deserving of the sanction of incarceration. The fact that blasphemy is a crime in England and an enforced crime in Islamic countries, but is not in the US, makes no real difference to the fact that breach of the law as written is what drives the various criminal justice rates in each of the countries concerned.

On the second point, I’d like to know what countries Kieran thinks are, or have been, more just. He may have some good candidates, but it would be helpful to know where we both stand in relation to that point.

A Minor Point: The third sentence seems to have two errors. First, I think Iain meant to write “incarceration rates” rather than “criminal justice rates”. Second, I think he should also have said “the law as enforced” and not “the law as written”, because otherwise the sentence contradicts itself. If a law like blasphemy is on the books but not enforced, as in England, then this obviously does make a difference to whether you end up in jail for blaspheming.

More substantively: There’s a conflict between what Iain Iain says about crime and what he implies about justice. He says that crime is just what a society’s members (or their elected representatives) say is punishable by jail time. It doesn’t matter what the offences are, as long as people are locked up when they commit them. Does this mean he thinks a “just society” is simply one where the law is enforced, regardless of what the law is? I doubt it. When Iain asks what countries I think are more just than the United States, I’m pretty sure he’s not asking me to name the country where incarceration is most highly correlated with criminal activity, however defined. He’s asking for my substantive beliefs about justice, and wants to know whether they square with his. That implies that he thinks justice is different from the law. The law is supposed to implement our principles of justice, but may do so imperfectly (or not at all). On this view, Iraq might have a terrifically efficient criminal law system, but we wouldn’t want to say it was a just society.

The problem is that Iain can’t employ a positive definition of crime in one breath (crime = what the law says it is) and a normative concept of justice in the next (justness = say, personal freedoms, equality of opportunity, other good things about America). This brings us back to my original point, which was that there’s a lot of disagreement over what justice is. And that means there’s a lot of disagreement over what should be illegal, and how severely certain crimes should be punished. Iain bypasses these questions and starts his argument by assuming that the U.S. is a just society where the incarceration rate “therefore” reflects criminality. Yet that’s what’s at issue in the first place.

The judiciary used to have a lot of leeway about how to punish people convicted of drug offences. If we introduce manatory minimum sentences, we can ask whether the new punishment fits the crime, whether it will further the broader goals of a “just society”, or whether it will just put more people in jail to no real purpose and exacerbate social inequality no end. Much of the prison boom of the late 1980s and 1990s, I suggest, was driven in large part by active policy choices about what counted as serious crime and how to deal with it. That, in the main, is what brought about the vast increase in the prison population. It didn’t happen simply because the crime rate went up.