“With authority, punishment will pass away. This will be a great gain – a gain, in fact, of incalculable value. As one reads history, not in the expurgated editions written for school-boys and passmen, but in the original authorities of each time, one is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted; and a community is infinitely more brutalised by the habitual employment of punishment, than it is by the occurrence of crime. It obviously follows that the more punishment is inflicted the more crime is produced, and most modern legislation has clearly recognised this, and has made it its task to diminish punishment as far as it thinks it can. Wherever it has really diminished it, the results have always been extremely good. The less punishment, the less crime. When there is no punishment at all, crime will either cease to exist, or, if it occurs, will be treated by physicians as a very distressing form of dementia, to be cured by care and kindness. For what are called criminals nowadays are not criminals at all. Starvation, and not sin, is the parent of modern crime. That indeed is the reason why our criminals are, as a class, so absolutely uninteresting from any psychological point of view. They are not marvellous Macbeths and terrible Vautrins. They are merely what ordinary, respectable, commonplace people would be if they had not got enough to eat. When private property is abolished there will be no necessity for crime, no demand for it; it will cease to exist. Of course, all crimes are not crimes against property, though such are the crimes that the English law, valuing what a man has more than what a man is, punishes with the harshest and most horrible severity, if we except the crime of murder, and regard death as worse than penal servitude, a point on which our criminals, I believe, disagree. But though a crime may not be against property, it may spring from the misery and rage and depression produced by our wrong system of property-holding, and so, when that system is abolished, will disappear. When each member of the community has sufficient for his wants, and is not interfered with by his neighbour, it will not be an object of any interest to him to interfere with anyone else. Jealousy, which is an extraordinary source of crime in modern life, is an emotion closely bound up with our conceptions of property, and under Socialism and Individualism will die out.”
Oscar Wilde, The Soul of Man Under Socialism
“When it comes to crime and punishment, far too often politicians confuse toughness, longer sentences, greater use of imprisonment, harsher treatment, with effectiveness, dealing with addictions, mental health, unemployment and homelessness and requiring offenders to make amends to their victims.”
Juliet Lyon, Director of the Prison Reform Trust
“Train any population rationally, and they will be rational. Furnish honest and useful employments to those so trained, and such employments they will greatly prefer to dishonest or injurious occupations. It is beyond all calculation the interest of every government to provide that training and that employment; and to provide both is easily practicable.”
I want to challenge a set of beliefs that are absolutely fundamental to our society. Beliefs that are not only embedded in our social practice and our laws, but in the language we speak.
The most core of those beliefs is in the idea of what we call ‘good’ and ‘evil’. The word ‘bad’ is used to present a less superstitious impression, but in truth it still conveys the same superstitious meaning. It is put upon us from a very early age that people and actions alike can be divided cleanly into ‘good’ and ‘bad’. It is this idea that forms the basis of our concept of ‘justice’. These ideas are collectively thrust upon us by parents, teachers, churches and entertainment. God and the Devil, Superman and Lex Luthor, the Sheriff and the Outlaw; all are manifestations of the same conceptual divide. When we tell our children about the ‘bad people’, we still do so in a superstitious manner, identifying them in terms of their actions rather than any inherent factor that causes them to be ‘bad’; as if they are not people who perform actions for a reason, but some manifestation of supernatural evil. In fact the logic behind this, as far as the ordinary thinker is concerned, runs dry at this point. It is simply established that there are ‘bad people’ who ‘are bad’ and therefore do ‘bad things’ because they are ‘bad’.
This ties in very much with the religious systems upon which Western society has been founded. Throughout the history of religion, belief systems have also been intertwined with the systems of crime and punishment. The legal and penal systems we use today are still based on the principles set out by religion. Beyond this, the very way we think about wrong and right, good and evil, is rooted in religion rather than science. The concepts of “sin” and “crime” have long been at least partially interchangeable, with ‘debt’ also crossing over at many points.We therefore find the intersection of concepts such as ‘original sin’, in many ways considered a ‘debt’ that is owed by a person to God.
Many still have the false belief that it is impossible to have morality without religion – that science is unable to guide such matters — which is of course untrue. The fundamental change that comes from the transition from religious morality to rational ethics is that ethics is required to be based in fact and must have objectives; morality can decree that something must be done purely because God says it must. Morality decrees that crime is sinful and sun must be punished; ethics has to consider instead what corrective actions might be taken and what will actually be achieved by them.
The earliest systems of laws did not deal with ‘crimes’ in their current form. Instead, they described ‘wrongs’, leaving it to the victim of that wrong to bring about punishment or compensation. This system focussed on retribution – an ‘eye for an eye’ form of justice – enacting an equal amount of suffering or loss on the person who has committed the crime. In many ways, this is the most natural form of justice, since the instinctive response to an offence is to return force in roughly equal proportion. Retribution, or revenge, generally yields positive emotions for those enacting it, at least in the short-term. The exact problem therefore is that since retribution does feel like such a natural thing to enact, it is often taken as an assumption, despite being significantly more difficult to justify rationally.
It is a cliché, but to kill the person who has killed your loved-one will not bring them back. In terms of harm and benefit, it will only cause more harm. Yet we are still left with this ethereal concept of ‘punishment’ — ‘the bad person must be punished’ — with no rational justification. It ceases to make sense when we consider the killer as only a human being who, for some reason has acted malevolently, rather than as a manifestation of some pure evil. Once we realise that evil does not exist — it is, in fact, a non-thing — then we are liberated from its association with the criminal and all that remains is the realisation that the criminal, like any other person, is simply a human being who makes choices for reasons. At this point we shake off the fuzzy concepts of ‘good’ and ‘bad’ and can start to finally address the real problem: why do some people cause harm?
The first factor that we must consider — one that completely undermines the traditional concept of punishment, particularly capital punishment — is the questionable nature of free will. Free will is something that your average Joe on the street takes for granted, but that any educated psychologist, neurologist or philosopher has to concede is at least in question, at some level. At the very least, we must concede that free will is limited by the information we have and the intelligence with which we process it, which along renders free will less-than absolute.
We must consider that a criminal act is, in its physical causes, the same as any other act. All acts we perform are a product of our mental functions directing our physical actions. So why does a person decide to commit a crime? Again, the logic is exactly the same as any other act. The actions we take are the result of our mental logic planning actions based on our view of the world. Assuming for this time that the law in question is valid and the circumstances not exceptional, why then, does this result in the subject committing a crime? Simply, why does a person do a bad thing? One or both of two factors must be responsible. Firstly, our subject’s mental reasoning may be flawed. They may take their view of the world and make a poor decision based on that information. Secondly, their view of the world may be distorted, so even a valid decision yields the wrong results, because the information that decision was made on was wrong. It is important to state here that the subject’s view of the world is not just in that moment. Everything we have experienced up to a point affects how we perceive everything in future. Everything we perceive in the present is interpreted by association with our memories. Traumatic experiences can even change the chemical make-up of the brain, predisposing an individual to certain emotions.
Labelling someone as ‘bad’ accounts for none of these things. Nobody deliberately makes bad decisions. From the over-zealous home defender, to the career assassin, to the paranoid psychotic who believes his neighbour is trying to kill him, the rationale of all their actions makes perfect sense to them at the time. None are inherently ‘evil’.
So how do these two factors facilitate a harmful act? Firstly, if the subject’s mental processing is flawed, then they may make bad decisions based on the information they have. One factor here is mental illness. Many people labelled bad, in the past and even today, are mentally ill. We obsess over the idea of sanity vs. insanity, but in reality, there is a completely gradual continuum between a sound and an incoherent mental reasoning system. Arguably, we are all insane, since none of our reasoning systems are completely identical; if we are all different then none of us are normal. Another factor to consider in light of recent science, which ties into the second aspect of distorted world view, is epigenetics and neurone physiology. Simply put, unlike what was thought in the past, experiences can change our physical make up. The significance of this is that our past experiences change not only our view of the world, but the very way we think.
Although the law defines a binary choice between sane and insane, psychiatrists have been aware for many years that a lot of conditions operate on a spectrum, a continuum whereby different individuals are affected with different severity and effects. It is for this reason that many mental and neurological disorders are undiagnosed or misdiagnosed, especially when they manifest themselves in subtle ways. We also apply our own social biases to the application of mental issues: someone who has a fascination with dolls might be considered to have “something wrong with him”, but someone with a fascination with “God” is considered to be “faithful”. Society does in fact need to take the approach that every human has something “wrong with them” – once we realise that we all have mental nuances and that “sane and insane” are mere labels that we try to attach at points of varying spectra, we can start ensuring everyone gets not only the physical but also the psychological care they need.
Secondly, if a person’s perception of the world is tainted, then they may make a good decision internally, based on bad evidence. Remember that everything we perceive about an immediate situation is based on everything we have perceived in the past. When we step outside and look at the sky, we rely on the assumption that the blue hemisphere above the our heads is the sky with which we are familiar. This is an assumption based on past experience. Therefore, how we view any situation depends on our past assumptions. It is our memory that provides the context for our observations, on a very fundamental and subconscious level. If a young man has grown up being stopped and searched by the police for no good reason, that will distort his world view into the assumption that the police are operating against his interests. If a group of people are continually treated with the presumption that they have ‘criminal tendencies’, then it should not surprise us if they come to fulfil that expectation – as a direct result of not being given a fair chance.
Many conservatives argue against the idea of criminals as products of their environment, because they believe they would not make the same decisions in an equivalent situation. They neglect the changes in their own thought mechanisms and world perception that would take place if they had the same previous experiences as the “criminal”. It is a critical flaw in human reasoning and empathy that when we put ourselves in someone else’s position, we only do so in terms of immediate position. Another great flaw in current thinking is the idea that indirect wrong is more acceptable than direct evil. For example, a common thug who shoots a man is considered a deeply evil person, yet the CEO of a company that exploits its position to manipulate food prices, thereby causing starvation in a foreign country, is considered to be “doing their job”. In this way, we shy away from consideration of the greater good, confining our judgement of good and evil to immediate, physical effects.
The two fundamental causes we have considered tell us the nature by which criminal decisions, alongside all other decisions, are made. Let us now consider what factors are in play to cause a harmful decision to be made. I will also momentarily point out that there is an imperfect intersection between harmful acts and illegal acts: some acts are harmful but not illegal, others are illegal but not harmful.
Firstly, there are those acts where the subject genuinely believes what they are doing to be the right thing. This can yield one of two conclusions: either they are acting on poor logic and/or evidence; or the law is wrong. Assuming the law is correct, this is the simplest illustration of our model – the harm comes directly from flawed logic or a misinterpretation of the situation.
There are also those acts where the subject arguably knows what they are doing is wrong. In this situation, matters are more complex. The conservative logic here is that the person is “bad”, but this is an incredibly simplistic analysis. The reality is that the human mind is a complex thing and while one part may realise that an action is harmful, another part may believe the the action is acceptable. Many people who have committed crimes express confusion over their own actions, as indeed many of us do over our own, day to day, behavioural quirks. Ultimately, decisions are taken because a dominant part of the subject’s psychology determines that this is an appropriate decision. Often this is the result of conflicting information: when something is commonly regarded as harmful, but the subject is exposed to a social environment where it is regarded as acceptable. There is also a certain level of mental entropy involved; our brains, like everything else, are subject to a level of random interactions internally.
We must also consider that on a sociological level, crime is also a product of the way we live today. Capitalist culture encourages competition at any cost. It fosters possessiveness and its counterpart, jealousy. These are natural functions of our neurology that are multiplied by a social environment. When we create, for example, an environment in which people are judged by what they own, we should not be surprised when people are tempted to increase their ownership (and therefore social standing) by inappropriate means.
Criminal actions are often argued to be based on ‘greed’ and other negative personality trails. But does the greedy person choose to be greedy? Do the wise choose to be wise and the ignorant choose to be ignorant? Those with an IQ below eighty-four are judged to have ‘borderline intellectual functioning’, but are we so naïve to believe that if someone can manage eighty-five, they have suddenly acquired a divine responsibility for actions that may be the result of their lack of intelligence? None of us choose how intelligent we wish to be. Nobody chooses their own character.
One other challenge to the idea that criminals are entirely responsible for their own actions comes from the psychological evidence pertaining to how easily the direction of a person’s behaviour can be externally influenced. In the 1960s, Stanley Milgram set out to investigate the phenomenon whereby a large number of people would seemingly act irrationally and harmfully when under authority; the particular case in point being the people of Germany during World War Two and the Holocaust. Essentially, the experiment involved a volunteer, who was told the experiment involved learning through electro-shock therapy. They were then introduced to another volunteer (who unbeknown to them, was an actor) who was wired up to an electric chair. They were to question the other subject and when an incorrect answer was given, to press a button to shock them, in increasing increments. Furthermore, the supervising researcher was sure to mention that the subject had a heart condition – expressly ensuring the subject knew what they were doing was a bad idea, if they didn’t otherwise. As thevoltage increased, most subjects paused, but continued when reassured they would not be held responsible for any harm. The subjects were told that they must keep shocking as the voltage increased (and the actor simulated more violent electrocutions).
The results of the Milgram experiment were contrary to what many expected. Despite disagreeing with what they were doing, believing it was harmful and unethical, 65% of the subjects in the first trial continued to the maximum “voltage”. Milgram concluded himself:
Ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a terrible destructive process. Moreover, even when the destructive effects of their work become patently clear, and they are asked to carry out actions incompatible with fundamental standards of morality, relatively few people have the resources needed to resist authority.
It seems remarkable that this effect could be real, but the alternative is to think that somehow, the entire population of Germany in the 1930s so-happened to be born ‘bad’. Now consider the implications of this effect on vulnerable young people, urged towards petty crime.
One lesser-known aspect to the experiment was that no participant, even those who refused to administer the final “shock”, called for the experiment to be ended, or rushed over to check on the other “subject”. This brings us to the quite uncomfortable, but significant conclusion that while people are sometimes willing to no longer take part in harm, they were unlikely to stop others from exercising harm, provided those people have a form of authority. We see this in many ways today, when officials resign from malevolent governments or companies, yet these institutions are not driven out of existence.
Another experiment that interpreted our social motivations was performed by Solomon Asch in the 1950s. The crux of the experiment was that people were asked simple questions based on a series of lines and everyday knowledge. In a control group, the answers given were nearly always right. Asch then introduced to a group a number of plants, people told to deliberately give an incorrect answer. The effect of one was small, but as two or three were introduced, their influence caused the rest of the group to follow their incorrect answers and agree with them, despite having proven their ability to know otherwise. The experiment demonstrates the nature of most people, possibly instinctual from our pack evolution, to defer their own decision-making to that of a group. It also therefore shows the great power that can be gained by a small group deliberately seeking to exploit and influence.
So given the conclusions we have arrived at, does this absolve the criminal of their crime? No, it does not. What it does however, is to change what consequences that should come about as a result. Once we have set aside our primitive need for revenge, we realise that our priorities are to reform the subject in question and in the mean time, protect the public (and potentially themselves) from them. In this way, our focus must move away from “punishment” to education. Revenge can never be allowed to cloud our judgement – we must use our every device to help a person realise the error of their ways. If there should be any retributive aspect of punishment, it should be trying to set the state of things right. This cannot be done in the case of murder, but a petty vandal can repair their damage. When retribution is used in a minimal and controlled manner, where the subject is directly exposed to the consequences of their actions and charged with, instead of undergoing meaningless suffering, making things right, there is a direct connection to responsibility and opportunity for learning.
Unfortunately, the current prison system does not meet the requirements which we have now set out. The first problem is that we are putting the majority of criminals in prison with people who have worse behaviour than themselves. They are thrust into an environment where they must learn more violence in order to protect themselves. We also realise from looking at evidence such as the Stanford Prison Experiment, that the way we arrange the roles of prisoners and officers, while conducive to authority, does not facilitate the development of normal human relationships – a fundamental requirement for rehabilitation. As a point aside, the Stanford Prison Experiment also illustrated how reasonable people can end up taking unreasonable action as a result of their environment.
Several studies suggest that incarceration actually increases the likelihood of re-offending compared to community-based penalties. The effect is thought to be worse among minor offenders – in other words, a minor offender may well be more likely to commit a crime after time in prison than he was beforehand. This shows that while the rhetoric of ‘coming down hard on crime’ is popular with the public, logically and empirically speaking, it is incredibly flawed. In many ways, society must ask itself, what is more important: vengeance? or reducing crime?
There are several other effects worth considering in regard to incarceration. The first is the phenomenon whereby offenders who have spent long periods in prison feel unable to operate in the outside world – something that has parallels with those leaving the armed forces. This increases the likelihood of committing crime simply to return to a comfortable environment. A second point is the effect on the future prospects of those with a criminal record. Someone who has spent a long period in prison will find it difficult to get a “trustworthy” job because they are viewed as morally corrupt. This again, by denying them a normal role within society, actually increases their chance of re-offending.
Another aspect of crime and punishment we must consider is that of deterrence. Deterrence has always stood next to retribution as a mainstay of conservative law and order. It is one of the primary arguments for the death penalty, for example. Ironic, then, that the death penalty provides one of the best rational arguments against deterrence-based justice. Simply, someone who believes they have killed, will probably be caught and will now face the death penalty, will go to any ends to cover up their actions – even killing many times again to silence witnesses. As they see it, they have nothing to lose. Thus, deterrence can only be effective if justice is proportional and limited. If punishment is unlimited, then it literally gives criminals ‘nothing to lose’. Certainly, it is the feeling among many front line police that the death penalty does little to deter crime, which is backed up by research. In fact, in the United States, the murder rate is higher in states that do have the death penalty than those who do not.
Another point to consider with capital or corporal punishment is that giving official sanction to such acts also demonstrates and justifies the idea of ‘tit-for-tat’. This is unlikely to have a positive effect on the rate of other ‘tit-for-tat’ crimes.
In the case of murder, the divide between our previously considered causes of crime become even more evident. A high proportion of murders happen either in the spur of the moment, or as a result of a specific stressor. These people are most likely not thinking about the penalty. They are also not likely to kill again. Conversely, the majority of people who are likely to kill multiple times in a premeditated fashion likely have some form of psychological disorder, whether that be psychotic, neurotic or a personality disorder. Anyone with any kind of mental disorder is likely to react less-well to a deterrent.
The idea perpetuated in the conservative media that shorter sentences do not provide a sufficient deterrence, and this is to blame for increasing crime rates, is therefore flawed. Any significant inconvenience is generally as effective as a greater inconvenience. Ultimately however, the primary reason for people not committing crime is not deterrence; that is, even if there were no penalty for crimes, the majority of people would not commit serious crime. Very few people who do commit crime do so because they do not care about the penalty if they get caught — with the exception of a recent trend for those in poverty to commit crime with the explicit intention of going to jail and having a roof over their heads, which is an unfortunate reflection on the way we treat our poor more than the way we treat our criminals.
It is therefore considerable better to have a justice system that catches every thief and gives them a day of community service, than one that catches one in a hundred thieves and gives them one hundred days in prison. Time and resources are far better spent on law enforcement and early intervention than on incarceration.
Our change in thinking also mandates a change in the way we deal with crime on a collective level. It is important that communities feel able to trust the police, to act with reason and proportion. A critical failing of zero-tolerance policing is that it fosters a culture of paranoia and hostility. It is impossible to build cooperation and trust with people who are unforgiving. We must also realise that the culture we create, the divisions and wealth disparities, the hostility with which we treat certain communities (“chavs”, “pikeys”) – all these contribute to crime for generations to come. The police are required to protect the public, but only deep-rooted cultural changes along with effective education can have a real effect in reducing crime. In the simplest terms, crime will fall when we remove the reasons that people commit crimes. We can treat those who are mentally ill, educate those who are ignorant, and with the redistribution of wealth and dissolution of capitalist culture, a lot of the financial causes of crime will be gone.
Crime is not a matter of justice, in the traditional sense. There is no such thing as evil. Criminals are human beings, no different to the rest of us, and that realisation alone justifies a fundamental change in how we think about them. The fact that someone has acted harmfully does not void their rights, especially to life, nor does it justify any retributive punishment. Crime must instead be seen as a public welfare issue; like disease or famine, but enacted by society upon itself in a way that, on the societal level, is involuntary. Casting aside our primitive desires for revenge and biblical morality, we can apply ethics to determine a justice system focussed on maximising benefit and reducing harm, while our economic and social policy aims to remove the causes of crime, which we now know is not simply ‘bad people’.
It is ironic then, having started with a mandate to throw out our biblical ideas of good and evil, that we should be left with a form of justice based on rehabilitation and ultimately, an almost-Christian ideal of forgiveness and compassion for those who have done wrong against us. It is interesting too, thinking back to Measuring Success, how having cast off the idea that the marginal utility of someone’s labour represents how they deserve to be remunerated, we now also break the connection between ‘crime’ and ‘debt’, realising that the degree to which someone ‘deserves’ to be punished is not fixed to the consequences of their harmful action. Just as there is more of an ethical case to reward workers based on effort, so there is also more of an ethical case to apportion justice based on intent.
It seems therefore, that there are a common set of assumed values throughout the capitalist society in which we live — a common subconscious cultural framework — and we may find more parallels as we continue to challenge this.