Rethinking Crime and Punishment

Why do people break the rules?

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.

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.

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.

We’re all Potential Criminals

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.

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?

Crime is Circumstantial

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.

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?

IN PROGRESS.

Eben's comments on the original draft:

• Yes, all of this said and you haven't made any progress on your well-chosen (if not exactly recondite) topic.

• This is therefore the draft before the draft. You have written around your subject enough to know that you have picked a good subject, because the usual stuff said in the usual way is unsatisfying. You mash up several different points of view (you begin by saying that retribution has been our central theory of criminal punishment, only to say a graf later that it has been incapacitation and general deterrence), you assert that rehabilitation doesn't work, and that deterrence doesn't either (on the basis of a single exceptional anecdote, although much better evidence for your proposition is available), and then skip to the "social roots of crime" analysis that joins the 18th century radical, the 19th century liberal, and the 20th century progressive in a multi-generational parade of "right before their time."

• But none of it is helpful in dealing with Madoff, as you say. So now it becomes necessary to write the draft that one writes after one realizes that all the stuff everybody says all the time doesn't really explain anything. If you seriously set about doing it, and find a way to express your exploration and discoveries in 1,000 words, you will have a memorable and irreversible intellectual experience. Go for it.