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.

Perspective

What Matt says here. The injustice suffered by the Duke Lacrosse players is one that is possible to suffer if you are upper or middle class white, but one that you are very unlikely to suffer. But it seems to me that this is part and parcel with the similar view that has been shaping our foreign policy for years. A large part of the population (largely overlapping the group Matt is talking about) believe that the United States is barely able to survive against a great force of enemies that is almost overwhelming us at every turn. That the United States is constantly being abused and mistreated by the world and that we rarely ever get anything we want, we rarely get our way. People who believe that Newt Gingrich's view that the United States today is very much like Washington at Valley Forge is just about right.

The fact is that citizens of the United States, and in particular middle-class or more prosperous white male ones, live it a state of such awesome security as has scarcely been imaginable to any other humans in the history of mankind. Our security is not absolute, not perfect, but it is unparalleled and great. Yet a large fraction of our populace is in a constant lather that this extraordinary state of security is not enough, and must be augmented at whatever cost to other people (generally people whose state of security is less than that of those who are complaining.) To someone of my outlook (and apparently to Matt's as well) this is absurd.

The expectation of absolute security is impossible. It cannot be realized and we each need to recognize that we might face harm or ruin through no fault of our own. We need to make the system as fair and just as possible and we need to fix problems that are uncovered. But we also need to be able to face the possibility of personal harm with courage. For one thing, the ability to face danger with courage is one of the most powerful tools a people can have for overcoming enemies. In other words, a willingness to face danger decreases the need to do so. A paradox I know, but the nature of the world nonetheless. Or from another perspective, if we display to the world that we can only function if we are guaranteed absolute security, then we look weak, very weak.

It is also the case that to improve the security of any one group to absolute security we would have to reduce the security of some other group. Indeed that is what we do. As Matt points out the kind of mistreatment that the Duke Lacrosse player's faced is faced regularly by poorer and minority folks all the time. But such disparities are unjust and serve to erode confidence in our legal system and thus reduce the security it can provide. In other words such shifting of security to a favored group serves to provide a short term increase (or perhaps only ever the illusion of an increase) in security, but in the long term weakens us all.

We, as a nation, particularly those of us in a position of comfort and relative safety, need to get away from listening to the Victor Davis Hanson's of the world, recognize our high degree of security, embrace courage, and work to make others more secure and worry far less about our own safety.