Crime and Irrevocable Punishments

To a certain extent all punishments are irrevocable.  There’s no time machine where you can go back and give a person the time they spent in jail back.  Even in the case of a fine you can’t give a person the use of the money they would have had (basic economics:  wealth now is almost always more valuable than the same wealth later).  But for most of them, at least some form of recovery can be made if the punishment is invoked in error.  In some cases, however, they cannot.

On social media there was a post going around about a lawyer advocating that certain sexual offenders, specifically sexual assault of a minor, be castrated.  Sorry, I don’t have the link to hand now and can’t find it readily.  Doesn’t matter.  This is an idea that comes up from time to time.  Some people tend to cheer these kind of proposals on the grounds of “they’ll never commit that crime again!”  (Erroneously in this case–after all, it doesn’t take a penis to sexually assault someone.)

But there are further problems.  A big one is the imperfection of the justice system.  If you invoke an irrevocable penalty–castration in this case; death in others–then sooner or later you’re going to apply that punishment to someone who did not commit the crime for which the punishment was imposed.  And when (if) you find that out, well, it’s too late to do anything about it.  You can’t restore the unjustly punished’s genitals or bring the dead back to life.

Flip side, of course, is if you don’t invoke irrevocable penalties then sooner or later a mistake will be made the other way–a person who was actually guilty will later be deemed to have been unjustly punished, freed, and then go on to commit the crime again, victimizing someone else.

In either case the justice system will sometimes fail leading to someone being unjustly victimized, either by the state or by criminals erroneously returned to society.

There is no perfection this side of Gold Thatched Gimle (and I have my doubts about it even there).

That said, there is an old cliche about “it’s better that 100 guilty go free than one innocent man be convicted.” Frankly, I’m not sure that ratio goes far enough.  While the guilty getting away with their crimes does its part to erode confidence in rule of law and the societal trust necessary for civilization, far more important to that trust is the belief that innocence protects one.  The innocent in society need to be able to say, and believe “as long as I obey the law, I’m safe from the law.”  Nothing erodes trust in law, in the very fabric of civilization itself, than the belief that innocence is no protection from the law.

All the more so when the protection is from something irrevocable, something where you can’t say “whoops” later and make the unjustly punished feel better with a cash settlement.

And so, the first class of error on the case of irrevocable punishments is of far greater concern than the second.  I might not go so far as to say they should never be imposed because the second class of error is also valid, but the bar needs to be extremely high and extraordinary care needs to be taken to ensure that everything is correct, not just as to form but as to content, before such punishments are imposed.

In the case of that suggestion on social media, that sexual assault of a minor?   You might want to consider what that entails.  It could entail a person who legitimately thought the person then had sexual relationships with was of age.  Permanent, irrevocable punishment because the person failed to identify a fake ID?  In most US states age of consent is 16 (people think 18 because that’s what California has and so that’s what they see in movies and TV shoes).  And while you might think that a 16 year old having sex with a 15 year old girlfriend is wrong, do you really think it calls for castrating the stupid teen for life?  Yet that, too, is “sexual assault of a minor”.

Before invoking something from which there is no going back, be sure.  Be really, really sure.  And recognize that no matter how sure you are in this case, sooner or later someone will be equally sure…and be wrong.

Sometimes you don’t have any choice but to make the best decision you can on short or incomplete information, with no time for careful consideration.  The operation of the legal system is not one of those times.

Take the time.  Take the care.  And if you must err, then err on the side of “better 100 guilty go free than one be unjustly punished.”

Civilization and rule of law depend on it.

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10 thoughts on “Crime and Irrevocable Punishments”

  1. As one person put it regarding castration, “The problem is between the ears, not between the legs.” I have suspicions that a wrongly castrated person might just become (or get MORE) violent as result, hormones be damned – after all if he’s already partway dead, why not go all the way and ‘fix’ those who did that to him, but good?

  2. I agree with you that castration is not an appropriate punishment for a civilized society to be engaging in, not because it is irrevocable (as you point out, all punishment is irrevocable, although restitution can be made for some) but because amputating healthy tissue is barbaric. It is a perversion of medical technology to use it to punitively disable an otherwise healthy person. I have the same objection to amputating hands for theft, cutting out tongues for perjury, and so on.

    That having been said, I disagree strenuously with the ideal of “better ten (a hundred, or whatever) guilty men go free than one innocent be punished.” Jonah Goldberg dedicates an entire chapter to discussing the concept in “The Tyranny Of Cliches”, but the essence of the argument is that the social cost of freeing criminals is greater than that of imprisoning innocents.

    1. The problem with that is that it eliminates one of the greatest foundations of the Rule of Law, the idea that if one does not break the law one is safe. That’s the essence behind Thomas Moore’s speech n A Man for all Seasons on “give the Devil benefit of law” the “cut down all the laws where would you hide then”. It’s also behind the serious problem we face now where are are laws are so voluminous, complex, and self-contradictory that no one can avoid breaking them (and that will probably be the topic for another blog post).

      Rule of Law must start with the idea that “so long as I obey the law, I’m safe”. Eroding that erodes the very concept of Rule of Law. Take, for example Civil Asset Forfeiture. It’s justified as hampering organized crime, particularly drug dealers and I suspect in most cases the folk targeted for CAF are actual criminals. But one doesn’t have to be convicted (let alone actually guilty) or even charged a crime to have ones property or cash stripped away and only via an expensive (often more expensive than the value of the assets taken) process can one, maybe, get the property back. Look at “no knock warrants”. Most of the time, they are breaking into actual criminals places of operation. But occasionally… Then there are police shootings–let’s play “Simon Says” until the guy makes a mistake and then shoot him (rare, but they do happen) and exonerate the officer.

      Those are two major factors in increasingly driving a wedge between the police and generally law abiding citizens. (Can’t be totally law abiding; see “voluminous, complex, and self-contradictory” laws.) More and more people aren’t seeing police as public servants keeping the peace and helping keep them safe, but instead seeing them as one of the threats to their own peace and safety. This despite the fact that most no-knock warrants are against actual criminal enterprises, most CAF are taking the actual ill-gotten gains of criminals, and most police shootings are fully justified.

      Rule of law requires trust in the law and unjustly punishing the innocent severely erodes that trust.

      1. All that you say is true, but I think you’re missing the fact that unjustly failing to punish the guilty also erodes the rule of law. People who are afraid of being locked up for no reason don’t trust the police, but neither do people who are convinced that the police either can’t or won’t protect them by locking up criminals. When citizens see the local criminal element operating freely they see no reason to cooperate with the police. They know that testifying will only make them a target since the defendants are unlikely to be convicted, or if convicted be off the streets for long.

  3. All that you say is true, but I think you’re missing the fact that unjustly failing to punish the guilty also erodes the rule of law.

    Not missing it. Simply noting that people are a lot more forgiving of “the system doesn’t always work” than they are of “I might be incarcerated, or shot by the Law even when obeying the law.”

    One one factor is that criminals rarely commit just one crime. When the criminal does get away with it, there’s an element of “we’ll get him next time” as at least some mitigation. Still sucks, but at least it’s not over. When the innocent are punished, however, how are you going to mitigate? “We aren’t going to unjustly punish him next time?”

    Look at the examples I gave. In all cases, those things are overwhelmingly more aimed at actual criminals than they are catching innocents in them. Yet that small percentage of miscarriages of justice that incorrectly harm the innocent are largely responsible for a huge degradation in trust in police and the justice system.

    Ideally, all criminals would be caught and punished and no innocents would ever be unjustly harmed. Ideally. Well, we don’t live in an ideal world. Mistakes both ways will happen. It’s just far better the mistakes be the former rather than the latter. Yeah, it sucks when someone gets away with it. But it more than sucks when people start thinking “the law is a threat to me.” For most people, the former has a certain distance to it. The latter is personal. The former: “That guy may have gotten away with it but I’m over here living my life in reasonable security.” The latter? “Oh, shit. A cop!” without even being able to say “Well, I’m not doing anything illegal so I’m good.”

    We can’t have “perfect” so we try for “good enough” or even “the best we can manage.” But “good enough” for catching and punishing criminals is a lot lower bar than “good enough” for the law avoiding victimizing the innocent. There’s a trade on these two bars–to a great extent pushing one up drives the other down. In pursuit of “best we can manage” for in terms of actually catching criminals has already pushed the case of bar for “don’t punish the innocent” well below “good enough”. That’s why trust in the police, trust in “the system” is so low, not just for extremist groups like “BLM” but in a wide swath of the population.

    1. Sure, people who live in relatively low crime areas are more concerned with being unjustly accused by police than the police failing to protect them from crime. People who live in high crime areas–areas where being robbed or burglarized is a regular occurence–are more concerned with lack of policing than overzealous policing. It’s a Type I/Type II error problem and which error bothers you more is a consequence of which error effects you more.

      This is an entirely separate issue from whether or not a particular law is just. Many are not, and Civil Asset Forfeiture tops the list. The problem with that is not that people are unjustly convicted of a crime, it is that they are being deprived of property without even being accused of a crime.

      1. People who live in high crime areas–areas where being robbed or burglarized is a regular occurence–are more concerned with lack of policing than overzealous policing.

        Assumes facts not in evidence. From having lived in some pretty high-crime areas the distrust of police is not because of the police not catching/punishing the bad guys. Instead, the police are seen even more as the enemy. What you may be missing is that the police in high crime areas are more likely to use the very same tactics that penalize the innocent in those areas (who remain the majority, however high the crime is there) than in “low crime” areas. And so, from many folks’ perspective, the police are just another gang.

        When I started college, I moved into a really cheap apartment (all I could afford at the time). I had essentially nothing in the way of furnishings or household stuff, including not having any drapes. As a stopgap, to keep the light out so that I could sleep, I taped old newspapers over the window of my bedroom. I was almost immediately warned that by doing so I was inviting a raid by police as a potential “crack house”. Since I’d emptied out my bank account to cover tuition (even including student financial aid) I had to scrounge for something that at least looked like curtains and yet kept that light out of my eyes so that I could sleep.

        So, no, the police in this poor, high crime neighborhood did not see the police as “officer friendly” protecting them from the criminals, but merely as someone else you needed to guard yourself from.

        Many are not

        Yet those laws, like Civil Asset Forfeiture owe their existence to the exact same argument you are attempting to make here–that the unjust penalizing of the innocent is justified by the “greater good” of being able to punish more bad guys. If one accepts that penalizing the innocent is an acceptable collateral damage to catching the actual criminals then the basis for calling these laws “unjust” goes away. That you consider these laws unjust merely underscores that that argument is not valid. Claiming it’s valid one place and not in another is the logical fallacy of special pleading.

        1. What you may be missing is that the police in high crime areas are more likely to use the very same tactics that penalize the innocent in those areas (who remain the majority, however high the crime is there) than in “low crime” areas.

          This. Why? Well, at least partially because of the tendency to take the easy way out. Officer needs to show that he’s doing something, but catching gang members is hard, without getting himself hurt or possibly killed, so he picks up the low-hanging fruit: someone who can be seen as violating a law, without him actually being a criminal. Obviously, not every policeman will do this, but it will be more common in the high crime areas.

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