APR 21

28: APR 21

Assigned

• Cavadino, Michael and James Dignan. "Penal policy and political economy". (17)

• Tax rates by country.[1]
• Crime rates by country [2]
• Homicide rates by country [3]

Cavadino, Michael and James Dignan. "Penal policy and political economy"

• Huge increase in US incarceration rate since 1970s. 5x, highest in the world.

• Two claims:

• Diffs in penalty likely to continue in spite of globalization
• One reason for this is that penality tracks political economy. (Think of it as a "local mental adaptation" in American culture -- like our libertarianism or our "car culture" mentality or our "suburban" mentality.)

• Starts with an overview of the influence of the US on global penal policy. To the extent that US exerts influence on other countries to move in a neo-liberal direction there may be "penal convergence". Also, incarcertation systems are one of our global exports! "correctional imperialism"

• Some elements of the US "justice model" (retributive punishment and retributive deterrence) travel faster than others. "3 strikes" and "zero tolerance"

• In Europe, the European Convention on Human Rights is influential. Moved Russia away from capital punishment.

• Political Economy and Penality

• 441: Table: Typology of political economies and their penal tendencies.
• Neo-liberal. Example: US
• Conservative corporatism Example: Germany in 2008 recession reinvests in industrial modernization and worker skills.
• Social democratic corporatism (more egalitarian and secular)
• Oriental corporatism

• Let's review some of the connections the authors make in their discussion. (bring in crime rates)

• 447: Table: Political economy and imprisonment rates.

• Is neo-liberalism "criminogenic"?

• Possibly: Evidence that unequal societies with weak community relationships suffer from worse rates of crime. 447. [Note how this might support a public health / social justice model for (instead of) punishment.]
• Interesting: Weak link bt crime rates and imprisonment rates.
• Some possible mechanisms: Neo-liberal societies have high social exclusion: labor market and CJ failures treated similarly. The authors suggests a "feedback loop" here: the socially excluded confirm the neo-liberal narrative.
• By contrast, Corporatist and social dem states are inclusionary, have a communitarian ethos. (Less likely to intervene, less likely to ask citizens, “Are you alright?” Old MRFW news example [4]

• Beckett and Western (2001) and others claim that high welfare spending correlates with low incarceration (except Japan). Also, economic inequality predicts high incarceration rates.

Some Ways of Thinking about Moral Responsibility and Justice

• Traditional/Current Theories of Punishment

• Retributive punishment / retributive deterrence.

• Requires very strong concept of MR and FW to be just. Retribution is justified by "moral desert". It can also involve "social exclusion" -- making it hard for offenders to vote or hold a job. One can also advocate for a punishment dimension as a deterrence. Even is not wholly "deserved," punishment deters bad behavior.

• Utilitarian models of punishment: General principle: Goal of penal system is to reduce harm to public and offender.

• Versions include: Public Health-Quarantine Model, Community welfare model (crime is a kind of welfare issue, also for communities), Rehabilitative approaches, Restorative justice. These models can overlap and tend to assume that crime has natural causes that can either be mitigated through preventative welfare measures (addressing poverty and homelessness, for example) or through rehabilitation, confinement, and/or monitoring. Does not require a strong position on FW or MR, but these approaches can trigger liberty objections. (Present discussion option here! Could you imagine a criminal insisting on being treated retributively? Maybe.)

• Accountability and Interventions

• Distinguishing retributive punishment from "penalties and interventions". Punishment is about pain. Penalties (like speeding and parking tickets) might also hurt, but they can be justified not only on utilitarian grounds, but also more simply as ways of making the standards for behavior clear and reminding us of them, e.g. promoting accountability. Interventions include conditioning liberty (staying out of jail) on getting help with a problem, suspending privileges like driving on better behavior, asking for and listening to an offender's "plan" to avoid recidivism. Using social science knowledge about the patterns of our behavior to offer solutions. Technology (leg braclets and geo-location) and options for medications (libido killers) are also morally controversial in terms of consent, but might be preferable to more painful methods.

• Grounding punishment in the consent of the punished.

• Consider responses you might have to causing a harm to others. "Thanks! I needed that!" "I understand there will be consequences..." But what kind?
• Try the "veil of ignorance" approach to finding just principles of punishment. (mention law review article)

• Substituting the concept of a "tort" where we currently use retribution to establish restore justice.

• Instead of victims seeking revenge to be "made whole," (often by learning that a perpetrator will be incarcerated) you could see their loss as "insurable." Think about how would a "wrongful death suit" would proceed for a typical upper middle class person with "umbrella liability" coverage as opposed to someone who causes damage they are not insured for (underinsured motorists, for example)? Example of friend hurt by negligent driver Problems generalizing this as a form of guaranteed insurance!

Small Group Discussion on punishment

• Recall our theories of punishment from last class. Here are two thought experiments to help you sort out your views on punishment:

• 1. Imagine you are in the original position in Rawls' theory. You don't know if, when the veil is lifted, you will be a crime victim, criminal, or neither. Moreover, you don't know if you will live in a crime prone area, have good parents, and other factors that affect criminal behavior, like Socio-economic Status (SES). But you do know everything we currently know about the causal factors (both social and individual) that produce crime. You also know how victim's families feel and how you would feel if you were a victim of crime.

• Here are three choices you might make. Does one sound better than the other two? Is there a fourth?

• A. Contractors would choose a retributive punishment system, much like the current US system.
• B. Contractors would choose a "public health model", more like corporatist cultures (Cavadino & Dignan).
• C. Contractors would choose a "dual system" allowing for mix A and B. (Maybe using the tort concept.)

• 2. Faculty sometimes talk about how "punitive" the grading systems in our courses need to be. This can pit "softies" vs. "toughies". As with the moral responsibility and punishment issue in the criminal justice system, some faculty (toughies) worry that if they don't give more C, D, and F grades, students will become lazy. They also might believe that a higher level of performance would occur if we put students in fear of failing the course. (!) However, other faculty (softies) have the feeling that many differences in student performance are "baking in" prior to the first day of class and grading is largely "sorting" the same people over and over again. We need to give students good information about their performance, but we don't need to make harsh final judgements. If this is true, praising and blaming students more severely than needed to motivate the work seems undeserved. Softies sometimes acknowledge the "free rider" problems with their view. Do you find yourself agreeing with one group of faculty over the other? How punitive do we need to make a particular process for it to work? What are the variables? Do you have an analysis? How would you want your kids graded?

PP2: Free Will, Moral Responsibility, and Punishment Position Paper

• Stage 1: Please write an 1500 word maximum answer to the following prompt by Tuesday, May 3rd, 11:59pm. There will be no peer review process for this paper, but you will receive comments from me along with your grade.

• Topic: In this unit, we have explored different ways to think about free will, moral responsibility and punishment. We've looked at arguments (from philosophy and the law) for "moral responsibility skepticism," critiques of our ordinary ideas about free will, and the justification of our culture's approach to punishment. Respond to these challenges as you provide your own view, with supporting reasons, of free will and responsibility and how we should approach crime and punishment. Are there important reasons to retain retributive approaches? How should we take into consideration the growing body of knowledge about biological influences on our behavior? Should the approaches of other cultures influence our views?

• Advice about collaboration: Collaboration is part of the academic process and the intellectual world that college courses are based on, so it is important to me that you have the possibility to collaborate. I encourage you to collaborate with other students, but only up to the point of sharing ideas, references to class notes, and your own notes, verbally. Collaboration is also a great way to make sure that a high average level of learning and development occurs in the class. The best way to avoid plagiarism is to NOT share text of draft answers or outlines of your answer. Keep it verbal. Generate your own examples.

• Prepare your answer and submit it in the following way. You will lose points if you do not follow these instructions:

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