Effective Punishment

Now this is outside my area of expertise, so the following is just my thoughts on the matter, not the expression of scholarly knowledge.

The liberal/conservative split these days over Iraq, war on terror, FISA, Guantanemo, habeas corpus and the rest is driven by differences over how to properly administer a system of rules and punishments. Everyone agrees that we need to define some rules for acceptable behavior, at all levels of human interaction from small social groups to the interaction of nations. But we also all realize that as much as everyone might agree during times of comfort, what those rules are and should be, we cannot rely upon folks sense of morals to adhere to these rules, but we must also have a system of punishments, if any are violated. All well and good.

For those of us on the left, however, we also recognize that for any such system to work well, you must do two things as well as can possibly be done:

1. Identify ahead of time exactly what constitutes a violation
2. Correctly identify those who have violated the rules an punish them, leaving all other unmolested.

Both of these are vital and both are marked out specifically in the United States Constitution precisely because they are essential to have a system of rules and punishments work. The first item above is covered by Article I, section 9 " No bill of attainder or ex post facto Law shall be passed." The role of item 2 above is covered by several of the amendments in the Bill of Rights, in particular amendments IV, V, and VI.

Personally, I think that there are some factions within modern conservatism that are more than a little weak on applying number 1, but generally there is not much disagreement between us on this point.

Both parts of number 2 are essential. The failure to punish those who have violated the rules is equivalent to not having a rule in the first place. Even up to this point conservatives and liberals do not disagree. The second part of 2, however, is also vital, and indeed may be the more important. For to the extent that you punish the innocent, I believe, you are encouraging the behavior you wish to forbid. This is, I believe, then the rational basis of Ben Franklin's adage that "it is better one hundred guilty Persons should escape than that one innocent Person should suffer". Letting the guilty go free makes the rule ineffective. Punishing the innocent is counterproductive, which is worse. Not to mention the rather obvious point, that for many crimes and violations, the punishment of the innocent means, ipso facto, that the guilty party has gone free. It is here, it seems to me that conservatism and liberalism go off in totally different directions, with the liberals taking, by far the better path.

Consider an example of this. Let us say there is an empty lot near where you live where people have taken to dumping trash. This is forbidden and a punishment of $50 is assigned should one be caught so dumping. If the rule is so badly administered that few are ever caught then it will have very little effect. But worse yet, if the rule is administered so poorly that you are about as likely to get hit with the fine whether you dump your trash there or not, it becomes attractive, financially at least, do start dumping there, even if you were not inclined to do so prior to the maladministration of this rule.

All the debate over FISA, application of Geneva Convention, habeas corpus, and the rest boil down to the liberal insistence that we need to, and can, correctly and clearly identify those who have violated the rules, punish only them, and leave all others unmolested. Conservatives take the position that they want to punish the terrorists and liberals do not. Nothing could be further from the truth. The liberal position is simply that, both as a matter of morals and a matter of having a successful system of rules and punishments, we must correctly identify the violators of the peace and punish them, leaving all others unmolested.

The conservative approach to this, it seems to me, is a complete failure. They seem completely unwilling to even try to make sure that we get the guilty and leave the innocent be. The reason given seems to be that doing so is too dangerous. This is foolish in two distinct ways. The first is the reason given above, punishment of the innocent encourages the behavior you are trying to forbid. But additionally, you do not put the fear of God into your enemies by projecting the notion that you cannot take any chance of getting hurt. You put the fear of God into your enemies by projecting the notion that no matter the danger to yourself you will not change alter your adherence to what is right and proper. Today's Americans are among the safest human beings to exist on the face of the earth for all of human history. Yet conservatives want to tell the world that the minuscule chance we face by adhering to our principals of justice and the correct application of rules and punishment is too great for us to take. Such a position is raw fear and cowardice and should have no place in American politics. Governments are formed to provide security, not an absolute guarantee that no one will ever harm you. The United States provides such security, better than has ever been provided. To do so properly there remains some small chance that every citizen faces of possibly being hurt. The proper response of those who are actually of "the land of the free and the home of the brave" is to face that small danger with courage and without complaint.

So out of fear of getting hurt, conservatives insist that the system of rules and punishments be administered very badly. As it is being administered very badly it does not work well, the conservative response is to make the punishments ever harsher. But that is simply administering the system yet worse. Consider the example above. Raising the fine to $100, or $1000 or imprisonment, or death or death by torture, won't make your responses better, won't make you more inclined to adhere to the rules. Making the punishment harsher while still punishing the innocent will simply make your willingness to violate the rule greater, or perhaps move you into open rebellion against the authorities misadministering the rules. The conservative response to people moving to open rebellion and violence is to claim that this proves the moral failure of the people so rebelling which justifies the harshness of the punishments. But this is getting to be perverse. First we establish a complex system of rules and punishments precisely because we cannot simply rely upon people's sense of morals. Then we administer it so badly that people will be moved to open rebellion against those administering the system so we claim that we should be able to rely on the people's sense of morals for the system to work in spite of the maladministration? No, what we need to do is to properly administer rules and punishments. Doing that involves applying the principals of habeas corpus, fair open trials, due process and the like, and applying these principals however much it might scare conservatives. They simply need to grow a pair.