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< | As of mid-July, this is a WORK IN PROGRESS. Re-reading my essay two months after I somewhat hastily wrote it in between finals, I was struck by how utterly incoherent and flat it was. I am replacing it piece by piece with something more thoughtful. |
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> | What appears below is a complete overhaul of my third paper, elaborating on the one interesting idea in my first draft and getting rid of the rest. As of mid-July, it is still something of a work in progress. |
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< | Rethinking Crime and Punishment |
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< | Why do people break the rules? |
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> | Effecting Change Through Law |
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< | I ride the tram to the office every day without paying for it. I get on through the back door, sit down, and get off if I see a man in uniform. I work in a judge’s chamber; I break the rules on my way to an office where my job is to labor over the anatomy of justice. The irony does not escape me. Why do I do it? Because I can. Because I would rather spend the money on something else. |
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< | A decade and a half ago in Rwanda, Hutu farmers turned on their Tutsi neighbors, hacking them to death with machetes. When they were done killing, they were eager to collect the bounty. Why did they do it? Because they could. Because they wanted their victims’ land or television sets. |
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> | People Break Rules |
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< | In the aftermath of Hurricane Katrina, one New Orleans resident appeared on CNN carrying an armload of stolen sneakers. Cheerfully, she told the camera: “Katrina gave us new shoes.” Why did she do it? Because she could. Because everybody else was doing it. |
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> | I ride the tram to the office every day without paying for it. I get on through the back door, sit down, and get off if I see a man in uniform. I work in a judge’s chamber; I break the rules on my way to an office where my job is to labor over the anatomy of justice. The irony does not escape me. Why do I do it? Because I can get away with it, and because I would rather spend my money on something else. |
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< | We’re all Potential Criminals |
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> | Many New Orleans residents participated in the looting that emptied shelves in unguarded stores throughout the city in the aftermath of Hurricane Katrina. One woman appeared on CNN carrying an armload of sneakers; cheerfully, she told the camera that “Katrina gave us new shoes.” Why did she do it? Because she could, because it was profitable, and because everybody else was doing it. |
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< | Most people break at least some rules under certain circumstances. The same holds true for the law. When faced with the impression that social norms do not apply, or that the benefit of illegal behavior is greater than its cost, we break the law. If we accept that human being are lazy, selfish and stingy by nature, we must also accept that Most people – I dare not say all – are capable of criminal conduct. |
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> | A decade and a half ago in Rwanda, Hutu farmers turned on their Tutsi neighbors, hacking them to death with machetes. When they were done killing, they took their victims’ land, bicycles, television sets. Why did they do it? Because they could. Because their leaders told them that the cockroaches had to be annihilated. Because everybody else was doing it. Because killing was profitable. |
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< | We commonly assume that people who commit crimes are “bad people.” The Anglo-American criminal law has traditionally used a variety of mental-state requirements as proxies for “the guilty mind” – without further inquiry into the factors that produced that mind or triggered the criminal action. But how can we be sure that they are in any way worse than the rest of us? |
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> | The Fall of My Moral Empire |
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< | Crime is Circumstantial |
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> | Human beings do not live by moral codes; we live by rules. The rules themselves are man-made, relative to time and space. The strength of a rule is roughly proportional to the efficiency and force with which society upholds it. If the benefit of breaking a rule outweighs the cost, we do so. If we notice other people breaking a rule, we tend to follow suit. And if we perceive that breaking a particular rule is legitimate – for example, when a person of authority tells us so – we no longer feel constrained by it. |
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< | If we accept the premise that all or most of us are capable of a “guilty mind,” we can dispel the view of criminals as a distinct group and instead focus on the factors that trigger this latent criminal propensity. In that combination of triggering factors we might find an alternative to the current failing system of criminal punishment. |
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> | These may seem like simple, obvious truths. In fact, I fear that I admitting that they are conceptually new to me will reveal the naivete that I now realize has always shaped my view of the world. I have long struggled – emotionally and intellectually – with the “evils” of the world. Observing my surroundings through a lens that allows for no nuance between black and white, I have attempted to figure out why people do “bad” things: Why did children tell on their parents in Pol Pot’s Cambodia? Why do priests molest altar boys? Why did thousands of “regular people” work in Nazi Germany’s death camps? Why do we in the West use more than our share of the global resources? Why do people sell their children into sex slavery? Why do Columbia law students throw plastic in the bin clearly labeled “paper only”? |
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< | The traditional approaches to criminal punishment have one thing in common: They approach crime from a band-aid perspective. But while we scratch our heads attempting to figure out how to punish, we miss the point. Perhaps we should stop obsessing about reprimanding past harm and try to learn how to reduce crime and the need for punishment in the future? |
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> | Until recently, the only answer that I could come up with – along the lines of “because they are deaf to their own sense of moral” – has been as unsatisfying as it is trite. Because what do you do with that? Telling someone who is selling drugs at a high school that his actions are immoral is useless; and preaching what is “right” and “wrong” is a futile way of preventing genocide from reoccurring. I can see this clearly now. But I came to law school thinking it would be populated by people who, like me, have spent the last decade attempting to cure the world’s ills by wielding blunt tools like “values” and “morals” and “ethics.” As long as I can remember, I have operated under the assumption that I could effect change by appealing to people’s gut moral instinct: Thus I wrote alarmist columns about climate change in my college newspaper, preached veganism from behind the counter at Burger King, and told everybody and his mother about the plight of Afghan women. All of the above with very limited success.
In law school, I thought, me and my fellow moral warriors would embark, arm-in-arm, on a mission to eradicate “bad” and “evil” in society and the world. Yeah. Hello. Earth to Anja. |
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< | IN PROGRESS. |
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> | Law is the Answer, You Fool
It took me one year of law school to realize that the power of law is not that it is rooted in some vague concept of what is morally right and wrong. The power of law is that it can force people to behave in a certain way, that it is backed by threats of punishment, and that it can be changed and enforced to serve the purposes of those who are smart about it. In this way, law actually allows me do something about the world’s problems in a way that is much more direct than I had foreseen.
If we accept the contention that human beings live by rules, not moral codes, we should necessarily focus our efforts to effect change on the law and its enforcement. If you do not like society’s disregard for climate change, advocate for legislation that force people into carbon-friendlier behaviour. If you suffer at the thought of animal factories, how about some creative litigation? And if you want to prevent genocide or impunity for war crimes, put your weight and energy behind the emerging system of international criminal law. |
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> | Sometimes, I believe, successfully effecting change through law calls for a pragmatic approach. We are looking to cure the ills of society not by eliminating their cause – that would be a moral-ethical quest – but by taking a realistic look at the problem and search for a way to minimize their negative effects. In this vein, the Netherlands has already rid itself of some of the nasty byproducts of drugs and prostitution by a two-pronged legalize-and-regulate policy. While legalizing prostitution may instinctively feel “wrong,” reality is that it has allowed for a crackdown on things like human trafficking, exploitation of children, gender-motivated violence, and disease. Sometimes, it seems, making rules more realistic can be a way to effect change.
So if you want me to pay my tram fare, I would suggest either making it cheaper or threatening me with time behind bars.
IN PROGRESS. |
| | Eben's comments on the original draft: |