Determined, page 32
Yes, yes, there is so much to reform about the criminal justice system. Prisons are criminogenic, a training ground for revolving-door recidivism. Implicit bias makes a mockery of the notion of objective judges and juries. The system offers all the justice money can buy. All of this needs to be reformed, and the people in the trenches trying to do it—the Innocence Project, candidates for district attorney intent on change from within, lawyers helping underdogs pro bono—are amazing. I’ve now had the chance to work on around a dozen murder cases with public defenders, and they’re inspiring—underpaid, overworked, passing up the riches of the corporate world, losing most of their cases defending broken people who were usually already lost by the time they were second-trimester fetuses.
Yet if there’s no free will, there is no reform that can give retributive punishment even a whiff of moral good.
Here is what criminal justice reform can look like:[*] In sixteenth-century Europe, a variety of tests were used to identify witches, all truly awful. One of the more benign ones was to read the suspect the biblical account of the crucifixion of Our Lord. If they weren’t moved to tears, they were a witch. In 1563–68, Dutch physician Johann Weyer tried to reform the witch-justice system, publishing a book, De praestigiis daemonum et incantationibus ac venificiis (“On the Illusions of the Demons and on Spells and Poisons”). In it, Weyer calculated that Satan had an army of 7,405,926 devils and demons, organized in 1,111 divisions of 6,666 each. So Weyer had bought into the system big time. The book made three suggestions for reforming it. First, obviously nonwitches might confess to anything, including being witches, just because they were being flayed. The second, which caused Weyer to be viewed as one of the forefathers of psychiatry, was that someone might appear to be a witch but actually just be mentally unbalanced. The third referred to that tears test. By all means use it, urged Weyer, but keep in mind that lacrimal glands often atrophy in old age, so that the tearless old woman hearing the crucifixion story is organically impaired from crying, rather than a witch.[*],[4]
That’s what it looks like when you try to reform a system based on sheer gibberish. Ditto if reformist phrenologists excluded any potential subjects from their studies who had gotten a bump on the head from ice hockey, or if reformist alchemy journals required authors to list their funding sources. Or when reformers try to bring more equality to a criminal justice system; this is trying to make the actual meting out of justice more aligned with its Platonic ideal, when that very ideal is without scientific or moral justification. Just to start off things off in an understated kind of way . . .
Justice Served II
Of the long line of King Louises in France, Louis XV was certainly underwhelming. He was ineffectual with his few policies and was scorned as a corrupt sybarite who had brought economic and military ruin to France; the celebration of his death by the citizenry in 1774 foretold the French Revolution fifteen years later. In 1757, an assassin stabbed him with what was essentially a penknife, which, after penetrating layers of clothing (it was outdoors in midwinter), caused a superficial wound; to help out the grievously injured monarch, the archbishop of Paris commanded forty hours of prayers for his speedy recovery.[*]
History is unclear as to the motives of his would-be assassin, Robert-François Damiens, a household servant dismissed from a series of jobs for stealing from his employers. One interpretation is that he was deranged, psychiatrically unwell. Another concerned a religious controversy at the time where Damiens was on the losing side, which was suppressed by Louis, and decided to take revenge. The king particularly feared that Damiens was part of a larger conspiracy, although Damiens didn’t give up any names while being tortured. Motives aside, the only pertinent thing was that he had attempted to kill the king; Damiens was convicted, destined to be the last person drawn and quartered in France.
The execution, which took place in a public square in Paris on March 28, 1757, was well documented. Damiens’s feet were first crushed with a torture device called the “boot.” The offending hand with which he had held the knife was then scorched with burning pincers; a mixture of molten lead, boiling oil, burning resin, wax, and sulfur was then poured on his wounds. He was then castrated and the burning mixture applied there as well.
These actions, along with Damiens’s wailing and begging for death, provoked cheers from the massive crowd that filled the square, as well as from the apartments above (which had been rented out to the wealthy as box seats at exorbitant prices[*]).
But these tortures were merely the warm-up act for the main event, which was the “quartering”—each of a victim’s limbs would be tied to a horse, and the four horses would be led off in opposing directions, tearing off the person’s limbs. Damiens apparently had tougher-than-expected connective tissue; his limbs remained intact, despite repeated attempts with the horses. Eventually, the overseeing executioner severed the tendons and ligaments in Damiens’s four limbs, and the horses were finally successful. Damiens, reduced to a torso and still breathing, was flung onto a fire, along with his severed limbs. When he was reduced to ash after four hours, the crowd dispersed, justice having been served.[5]
Reconciliation and Restorative Justice as Band-Aids
Suppose trials were abolished, replaced by mere investigation to figure out who actually carried out some act, and with what state of mind. No prisons, no prisoners. No responsibility in a moral sense, no blame or retribution.
This scenario inevitably provokes the response “So you’re saying that violent criminals should just run wild with no responsibility for their actions?” No. A car that, through no fault of its own, has brakes that don’t work should be kept off the road. A person with active COVID-19, through no fault of their own, should be blocked from attending a crowded concert. A leopard that would shred you, through no fault of its own, should be barred from your home.
So then what should be done with criminals? There have been a few approaches that, while swell, still accept the premise of free will, but at least show that really smart, serious people are thinking about radical alternatives to our current responses to people who damage. One possibility is the “truth and reconciliation commission” model, first mandated in postapartheid South Africa and since used in numerous countries recovering from civil war or a violent dictatorship. With South Africa as the archetype, architects and henchmen of apartheid could appear before the commission, rather than go to jail. About 10 percent of applicants were granted the opportunity, where they were required to confess to every detail of their politically motivated human rights violations—whom they had killed, tortured, and disappeared—even the ones whom no one knew about, who hadn’t been pinned on them. They would vow to never do it again (e.g., to not join the White militias that formed a threat to the peaceful transition to a free South Africa); family members of the victims who were in attendance essentially vowed not to take revenge. The killer would then be released rather than imprisoned or executed. Mind you, there was no requirement for remorse—no photo ops where some apartheid murderer, anguished with contrition, is hugged and forgiven by a widow he created. Instead, the approach was pragmatic (to the frustration of many family members), helping the country rebuild itself.[*] Most important, it provided a parallel to the police strategy of getting the goods on some entry-level organized-crime schnook and offering him immunity in exchange for implicating his higher-up, who would then be similarly squeezed, and so on, all the way up to implicating the shadowy crime boss. In this case, immunity was being offered to the soldiers of apartheid in order to implicate the crime boss at the top, namely the very foundation of the apartheid government. Unlike with the Holocaust or the Armenian genocide, there could never be repulsive apartheid deniers, insisting that the violence was exaggerated as propaganda or the work of unsanctioned lone wolves.[6]
While moving and surprisingly successful in preventing subsequent violence, the relevance of such commissions to our concerns is limited. Something similar might arise during the sentencing phase of a convicted crime, when the perpetrator takes responsibility for his crime and expresses remorse to his victims, often resulting in a lesser sentence. But this whole approach is just reform, where a criminal is simply punished less by a system that makes no sense. Basically, someone claims that their criminal actions to have been freely willed and that their current freely willed actions are those of a changed person. Not what we’re dealing with here.
Another model with some similarities and the same ultimate irrelevance arises from the “restorative justice” movement, which concerns the relationship between criminal and victim, rather than between criminal and state. As with truth and reconciliation commissions, the criminal is expected to take responsibility for all the details of his actions. The emphasis then is on mutual understanding. For the perpetrator, it is to recognize the pain and suffering that he has caused—to understand, to feel, to the point of remorse. And for the victim, the goal is to understand the circumstances, often awful and completely alien, that made the offender the damaging person that he is. And from that point, the aim becomes for both parties (often with a mediator) to figure out what they can do to eliminate some of each other’s pain, and to find ways to lessen the likelihood of this happening again.
Restorative justice seems to work, decreasing recidivism rates. That said, there’s the likelihood of self-selection bias—a criminal who chooses to face their victim this way is almost certainly not your average prisoner, and is already heading in a good direction.
Restorative justice also seems to impact victims in salutary ways. Those who go through the process report less fear and hatred of the perpetrator, less anxiety about safety, better functioning, more enjoyment of everyday activities. Nice but, again, there’s the probability of self-selection bias.[7]
But restorative justice has nothing to do with our focus. This is because it accepts the need for retribution as a given, with the prisoner, now understanding the pain they inflicted, more accepting of the legitimacy of being punished by an irrational system.
The approach that actually makes sense to me the most is the idea of “quarantine.” It is intellectually clear as day and completely compatible with there being no free will. It also immediately sticks in the craw of lots of people.
As outlined by the hard incompatibilist philosopher Derk Pereboom of Cornell University, it’s straight out of the medical quarantine model’s four tenets: (A) It is possible for someone to have a medical malady that makes them infectious, contagious, dangerous, or damaging to those around them. (B) It is not their fault. (C) To protect everyone else from them, as something akin to an act of collective self-defense, it is okay to harm them by constraining their freedom. (D) We should constrain the person the absolute minimal amount needed to protect everyone, and not an inch more.
It’s leper colonies, involuntary hospitalization in some cases of psychiatric illness, the late-fourteenth-century European requirement that ships sailing in from Asia sit in the harbor for forty days (hence the quar in quarantine) to avoid bringing another round of bubonic plague.
This medical quarantine model is a given in everyday life. If your kindergartener has a cough or fever, you’re expected to keep them home from school until they’re better. If you’re a pilot, you can’t fly if you’re taking a medication that makes you drowsy. If your elderly parent is sliding into dementia, they can’t drive anymore.
Sometimes quarantine is imposed out of ignorance—it turns out that not all forms of leprosy are particularly contagious, obviating the need for many of those quaint leper colonies. Sometimes it is imposed because of the profoundly unknowable—when the Apollo 11 astronauts returned from the first moon landing, they spent twenty-one days in quarantine, just in case of who knows what. Sometimes it is laden with abuse and bias—a striking example concerns Mary Mallon, the “Typhoid Mary” of history. As the first identified case of an asymptomatic spreader of typhoid, responsible for sickening more than a hundred people, Mallon was arrested in 1907 and forcibly isolated on a quarantine island in the East River in New York.[*],[8]
From day one, medical quarantine has generated controversy, a battle between the rights of the individual and the greater good. We certainly saw just how incendiary this could be during early COVID-19, with those jackass don’t-tell-me-what-to-do coronavirus parties, where super-spreaders killed droves of people by practicing unsafe exhalation.
The extension of this to criminology in Pereboom’s thinking is obvious: (A) Some people are dangerous because of problems with the likes of impulse control, propensity for violence, or incapacity for empathy. (B) If you truly accept that there is no free will, it’s not their fault—it’s the result of their genes, fetal life, hormone levels, the usual. (C) Nonetheless, the public needs to be protected from them until they can be rehabilitated, if possible, justifying the constraint of their freedom. (D) But their “quarantine” should be done in a way that constrains the least—do what’s needed to make them safe, and in all other ways, they’re free to be. The retributive justice system is built on backward-looking proportionality, where the more damage is caused, the more severe the punishment. A quarantine model of criminality shows forward-looking proportionality, where the more danger is posed in the future, the more constraints are needed.[9]
Pereboom’s quarantine model has been extended by philosopher Gregg Caruso of the State University of New York, another leading incompatibilist. Public health scientists don’t just figure out that, say, the brains of migrant farmworkers’ kids are damaged by pesticide residues. They also have a moral imperative to work to prevent that from happening in the first place (say, by testifying in lawsuits against pesticide manufacturers). Caruso extends this thinking to criminology—yes, the person is dangerous because of causes that they couldn’t control, and we don’t know how to rehabilitate them, so let’s minimally constrain them to keep everyone safe.[*] But let’s also address the root causes, typically putting us in the realm of social justice. Just as public health workers think about the social determinants of health, a public health–oriented quarantine model that replaces the criminal justice system requires attention to the social determinants of criminal behavior. In effect, it implies that while a criminal can be dangerous, the poverty, bias, systemic disadvantaging, and so on that produce criminals are more dangerous.[10]
Naturally, quarantine models have been strongly criticized, in at least three major ways.
The issue of indefinite detention. With prison, there’s an upper limit to the length of incarceration (except in the case of life without parole), but a quarantine model could keep you constrained as long as was Mary Mallon. Thus, it resembles its disfigured troll cousin, sending a criminal who is not guilty by reason of insanity to a psychiatric hospital, where the average stay is often longer than if they had been jailed instead. Unfortunately, it makes sense that if the person continues to be dangerous, constraints have to continue for as long as necessary—but in the context of least infringement, where “constraint” might consist of having to register with the police whenever you move, or wearing a tracking bracelet. And notice that in this cheery, perfect world I’m imagining, if things have gotten to this point, people wouldn’t be recoiling from this constrained person as a loathsome, blameworthy criminal anymore, but merely as someone whose problems in some domain require that they not be allowed to do this or that. Yeah, I know, we have a long way to go.[*]
The issue of preemptive constraint. If you can predict whether a quarantined (“Please—we don’t call them criminals anymore”) criminal is likely to offend again, you should have been able to see it coming even before they damaged someone in the first place. This raises the specter of creepy precrime apprehension (as well as the need to keep an eye on the biases of the folks predicting the future criminality). Definitely something we don’t want to go near, even if Tom Cruise is willing to star in the movie adaptation. But yet. We do “precrime apprehension” all the time in public health. The rule for parents of schoolchildren is “if your child isn’t feeling well, keep them home,” not “if your child wasn’t feeling well, infected everyone else in their class, and still feels crummy, then keep them home.” Precough constraint. Ideally, you keep an individual increasingly impaired by dementia from driving anymore before they hit someone, rather than after. An equivalent of precrime apprehension is a standard in public health. What, then, should the same look like in our post–criminal justice world? Something decidedly undystopian, once we recall Caruso’s emphasis that “least infringement” has to be coupled with a paramount focus on the social determinants of criminality—another version of “And where did that intent come from?” Identify the next high school shooter and, yes, make it impossible for him to buy an automatic weapon, or a big sharp knife, or an unregistered black-market shillelagh. But also do something about how he’s getting bullied at school and home and is close to sinking from unaddressed psychological problems. Sure, spot the guy whose costly and growing addiction to a street drug is about to lead him to mug people, get him into rehab to writhe and shiver and puke in a safe setting, but also do something about how he was taught no skills and has no job options. I know, after trying to be a mixture of Emma Goldman in a bad mood and John Lennon singing “Imagine,” I’m sounding like a mildly progressive candidate for the town council, complete with an endorsement from Mister Rogers. All I can say is any version of preemptive constraint would have to be in the context of a world in which people truly accept that terrible people are produced by terrible circumstances (one minute before, one hour before . . . ). We have a really long way to go.
