Cages

-- By LeylaHadi - 08 Apr 2013

Deterrence

There is a running theme this semester, it seems, that is, the purpose of the law. But that is too broad a concept; the purpose of a law depends on the particular law. For example, I suppose the law against operating a vehicle while under the influence exists to establish that the state officially condemns the act, in hopes of preventing drunk driving. But a part of this law is the punishment, the axe that compels us to adhere to the rule. What is the purpose of this punishment for this law? To deter others from driving under the influence? As a form of retribution to the particular driver? But retribution for what exactly? What real evil has the drunk driver committed when he's tailed and stopped by a police officer? He drank and drove, which doesn't necessarily show that he is evil or in need of retribution. Is it, then, to prevent a possible harm from occurring if he is allowed to continue drinking and driving? Well, no, because a police officer need only put him in the back of his car and take him home.

So, continuing with this particular situation, the purpose of punishing a drunk driver who has yet to actually harm anybody should not be retributive, if retribution is based on the moral right, and what is deserved. It must be, then, to make an example out of this particular drunk. Society has been warned that if they drink and drive (and are caught), they will pay. If they do it more than once, they will pay in more ways than one.

If you don't punish the drunk driver who is caught before there is an accident, for what will you punish the one whose conduct results in an accident claiming lives? Is he punished for being unlucky?

Is preventing those who drive drunk from driving punishment? Or is it prevention with negative personal consequences?

Perhaps the problem with the conversation is the analytical categories, which prevent us from addressing clearly enough the range of social motivations and the nature of the collective behaviors we adopt.

Eviction

Take a different criminal law though: larceny.

This sentence doesn't do the job of explaining to the reader the structure of the argument she is following.

The purpose of the rule against stealing from others is, again, to establish that the state condemns taking another person's property without consent, to prevent theft from happening. But if the law did not exist, and the government did not condemn larceny in some overtly dog-eat-dog world, I don't think it is clear that people would steal more, or that more people would steal.

Why is that not clear? Is the evidence inconclusive? What we observe about looting, banditry, "ethnic cleansing" and so on in times of civil disturbance, cross-culturally, seems pretty suggestive. Events occurring in Indian history (to take one possible locale among many) in 1857 and 1947 seem also to confirm the principle.

Society would have some sort of unwritten understanding not to take other people's things, thus pretty much having the same people steal for the same reasons, regardless of the nonexistence of the law. They would still suffer condemnation from society, they would still become outcasts, except they would not be behind bars. So here, then, is the purpose of the punishment for larceny to rid society of thieves? And why is that ok, and why is it that the people who get to decide get to decide, and does it actually accomplish anything?

Surely it would be right to say that societies that have satisfactorily subjected themselves to the rule of law achieve on the whole very much higher levels of protection of property from force and fraud, private and public, than those that haven't. The property of the rich is always better protected than the property of the poor, but it is hard to name a society with weak commitment to the rule of law in which the property of the poor is as well protected as it is in the most oppressive and grasping society performing the rule of law, which is probably our own. Making theft illegal is what makes public corruption illegal, which restrains the power that most pitilessly plunders the poor.

Seeing the Many

During my third year at Cornell, a string of sensationalized suicides occurred on campus; notably, the kids jumped off bridges. The last suicide that took place before the administration decided it needed to erect fences across all the bridges was of an acquaintance of mine. In hindsight, there were many signs, despite his very tight group of friends, his stellar grades, the job he had lined up, his very loving girlfriend. One night a few of us were drinking together, and he burnt each of his knuckles with a cigarette. Since Matt, no students have jumped into the gorges; and three years later, the fences are now removed, replaced with heat-detecting nets under the bridges. The student body has successfully finished its time in prison, and is now only on probation.

Matt's actions brought about the first time I critically contemplated the multiplicity of our person. This young man who appeared to have everything going for him literally threw it all away. The people close to him knew about his struggle with depression and that he had even attempted to kill himself before. But he was so scared of what would happen to him if he asked for help, that he'd be locked up, or anesthetized. He felt there was no safety net, and so he didn't look for safety, even though I'm sure there were conflicting forces within him that yearned for help. His friends didn't think he would ever reach that point, and couldn't look through the facade of unity to see that there were parts of him that could reach that point, which tragically took over that one afternoon. If only the idea of oneness wasn't viewed as a given, and instead understood as the position we reach through deep study and acknowledgement of the many.

The criminal justice system puts people inside cages, rather than spending more energy and money on preventing the need for the cages, fences, in the first place. Like with suicide, there is a fearful perplexity which surrounds some of the worst human crimes, from rape to murder. We want to understand, we want to know what causes people to act in ways most cannot imagine. We need to figure out what causes the seemingly normal Dzhokhar Tsarnaevs of the world to commit nightmarish, unforeseeable acts, presumably so we can pick up on the signs, the behavior, and prevent the worst. When we can't understand the behavior, or logically connect the dots, we are left frightened and disconcerted. Instead of picking apart the plurality of the person, analyzing the many parts to understand why one part won over the rest to control the body's actions, we see the person as a one unified actor. Because we cannot understand them, we banish them. [note: we label them with ugly terms]

The Bigger Picture

What comes of my awareness of this heterogeneity? I can use the understanding for my own betterment, to improve myself, my relationships, and my abilities as a lawyer. But in terms of the bigger picture, how will this understanding penetrate its way into the legal system? And what if sometimes the understanding doesn't matter? Watching a documentary about Jeffrey Dahmer recently left me with a sick feeling of confusion. For a while, I have believed in rehabilitation over punishment. Watching this man's story, of seduction, brutal murder, and consumption of his prey, followed by his time in prison repenting and turning to spirituality, made me question how much rehabilitation can really accomplish. The monster inside came out, without anyone close to him knowing. The damage was done. Why should we care if he is rehabilitated; how can we ever take the risk of setting him free?

Of course, Dahmer is an anomaly and an extreme case. For me, however, people who kill for the pleasure of killing should never be allowed back into society. Regardless of understanding that there are many causes, genetic and otherwise, that create a particular type of bloodthirsty person, and that the particular person has multiple incompatible parts to him, some of which may despise his outward actions, the person is still a very real threat. The cost of failed rehabilitation is far too great.

And even less sociopathic, take Dzhokhar. Even if we can analyze

Whether I think killers should be punished is a different question. Punishment and reentrance into society are not the only options, of course. We

Using his story as a map, guide, to rehabilitate potential Dahmers -- and then take it to how seeing everyone's multifaceted parts makes that more attainable.

Which everybody understands. Would it not be right to say, however, that the motive for arresting is making the numbers, while the motive for searching was to check for weapons, incidental to which the drugs turned up, allowing the arresting officer to make a number? That in fact this, like other decisions about what to charge and how to dispose, are affected by a variety of "incidental" factors, arising themselves in sequences of quite separate social actions, that can't be accounted for on the basis of any specific social policy towards particular offenders or offenses? Modeling what happens on the basis of what we expect to happen is a particular failure of lawyers, whose interest is in power rather than public administration.

But what exactly do these realizations accomplish? Punishment is the institution, rehabilitation the naive dream. What can I do to change that? Do I want to do something to change that? Either way, once I decide, I should be able to pursue it, be able to have the knowledge, skills, and network to shake up the system. Otherwise, I am just putting myself in another form of prison.

It does not follow, analytically, that not to be shaking up the system is to be in another form of prison. Indeed, perhaps shaking up the system is another form of prison, less easily escaped once entered. In any event, I'm not sure that the conclusion has anything much to do with the preceding ideas. Perhaps another look at the outline, to define clearly what you want the essay to do, is the first step in improving the draft. I think the present three stages are less well integrated than the could be, because the strategy of explication is unclear. You want to say something about the logic of punishment as a part of social order-keeping, I think. This is indeed a tricky subject, right at the heart of matters, where justice and injustice are both forged. It's necessary to be very precise. I think you need to state your own ideas clearly, through explicit statement followed by illustration.

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