Determined, page 33
The issue of all that potential fun. A seemingly strong objection comes from Israeli philosopher Saul Smilansky, who argues that no matter how minimally you constrain someone’s behavior to make them safe, they’re still being constrained for something that is not their fault. Given this, the only morally acceptable stance must be to compensate the constrained person appropriately. In this view, if you’re a convicted pedophile and thus, as is often the case, are constrained from coming within a certain distance of schools or parks, at least you should get discounts on drinks at strip clubs; if you’re so violent that you have to be placed on a small island, at least make it a five-star resort with private golf lessons. If constraint, no matter how minimal, involves an adverse element that is undeserved punishment, quarantine advocates must provide, in Smilansky’s words, compensatory “funishment.”[*] And in his view, this will generate more crime—if you get away with it, you benefit; if you get caught, you’re compensated; win-win. It would cause what he calls a “motivational catastrophe.”[11]
Caruso’s convincing response is based on solid empirical evidence from those fun funishers, the Scandinavians. Compared with the U.S., Norway, for example, has one eighth the murder rate, one eleventh the rate of incarceration, one quarter the rate of recidivism. Well, that must be due to a really draconian prison system. Quite the opposite; it is of the type that Smilansky anticipates with dread—in Norway’s “open prison” system, criminals, even those under maximal security, have rooms rather than cells, computers and TVs in each, freedom of movement, kitchens to cook in communally, workshops for hobbies, music studios filled with instruments, art on the walls, trees on the campus-like grounds, a chance to ski in the winter and go to the beach in the summer. But what about the cost, which must be ruinous? It is true that the annual cost of housing a prisoner in Norway is about three times that in the U.S. (roughly ninety thousand dollars versus thirty thousand). Nonetheless, if you really analyze things, the overall per-capita cost of containing crime in Norway is far less than in the U.S.: fewer prisoners, who are educated enough in prison so that most eventually return to the outside world as wage earners rather than as likely recidivists; huge savings from smaller police forces; fewer families disrupted and driven into poverty by the incarceration of the primary source of income; heck, even the well-off save money, with less need for expensive home security systems with CCTV and panic buttons.[*] But what about Smilansky’s motivational catastrophe, with folks lured into criminality in order to head off to a prison resort? The much lower recidivism rate shows that no amount of art on the walls and well-equipped kitchens can outweigh the incalculable value of freedom. Apparently, we need not fear turpitude and mayhem caused by funishment.[*],[12]
I really like quarantine models for reconciling there’s-no-free-will with protecting society from dangerous individuals. It seems like a logical and morally acceptable approach to take. Nonetheless, it has a doozy of a problem, one often framed narrowly as the issue of “victim’s rights.” This is actually the tip of the iceberg of a gigantic problem that could sink any approach to subtracting free will out of dealing with dangerous individuals. This is the intense, complex, and often rewarding feelings we have about getting to punish someone.
Justice Served III
Predictably, southern states lagged behind northern ones by a few decades, but, spurred by growing condemnation of the yahoo carnival atmosphere that typically ensued, public hangings were banned throughout the United States by the 1930s. Everywhere, that is, except Kentucky, where, in the town of Owensboro in 1936, there was what proved to be the final public hanging in American history.
The case was some mutation of “perfect.” An elderly White woman, Lischia Edwards, had been robbed, raped, and murdered in her home. Soon came the arrest of Rainey Bethea, a twentysomething[*] African American with a record of house break-ins. The law had seemingly gotten their man. Bethea confessed, which obviously meant little when a Black man was interrogated by police in the Jim Crow South. But the perpetrator had stolen some of Edwards’s jewelry, and after confessing, Bethea led police to where the jewelry was stashed. The trial lasted three hours; Bethea’s lawyer neither cross-examined prosecution witnesses nor called any witnesses;[*] the jury deliberated for 4.5 minutes, and Bethea was condemned to be executed two months after committing the crime.
There’s an extraordinary detail. Despite having both raped and murdered Edwards, he was charged only with rape. Why? Under state law, murderers were executed by the electric chair, within the prison. In contrast, a rapist could still be hanged publicly. In other words, the joy of getting to publicly hang a Black man for the rape of a White woman was irresistible.
The planned execution had a juicy detail that made the national news—Bethea would be hanged by a woman. In 1936, the long-standing sheriff of Owensboro, Everett Thompson, had died of pneumonia. In an act of “widow’s succession,” the county appointed Thompson’s widow, Florence Shoemaker Thompson, to fill in. She had been sheriff for only two months when she presided over the hunt for Bethea, and now she was to preside over his hanging.
The press and public went wild. There was a national guessing game—would Thompson actually pull the lever, or would a professional executioner do it with Thompson officiating? Rumors spread, clairvoyants weighed in, people placed bets. The day before the hanging, Thompson announced that there’d be a professional executioner (something she had actually decided weeks earlier).[*]
During this period of frenzied speculation, Thompson became one of the most polarizing figures in the nation. To some, she was inspiring, a member of the delicate sex suited for embroidery and childcare but nonetheless willing to step into the breach as her civic duty. To others, she was an abomination, taking a man’s job and neglecting her children; she received death threats. In an odd paleo-feminist spirit (it being merely sixteen years since women had won the right to vote), she was praised by some for showing that women were as capable as men in this occupational niche. Throughout, there was the powerful narrative of Thompson as some sort of retributive spirit animal for the slain Edwards—a Black man who had despoiled White Southern womanhood would be hanged by a White Southern woman. Newspapers fixated on her being a mother (killer to be hanged by mother of four ran the headline in the Springfield, Massachusetts, Republican); the Washington Post called her “plump, middle-aged”; the New York Times referred to her as the “fair sheriff”; she was “matronly” in another newspaper account, while another noted that she was a good cook. In addition to the mountains of supportive letters and hate mail, Thompson received several marriage proposals.[*]
When the day arrived, every hotel room in Owensboro was taken by people from across the country. Bars stayed open all night in anticipation. The hanging venue had to be moved from the front of the town courthouse to a larger open square, as it was anticipated that the huge crowds would trample the recently planted flowers at the courthouse. People camped out the night before in hopes of a good view; fights broke out among attendees for prime spots (including between women holding babies); enterprising young men sold hot dogs and lemonade to the crowd. An Owensboro man who was a fugitive from the law was arrested when he returned to his hometown to see the hanging. Twenty thousand people jammed the square.
Bethea was led to the gallows. He paused at the bottom of the steps with an unlikely request—in his pocket was a new pair of socks, which he wanted to wear. After hurried consultations, the request was granted; shackled, he sat on the first step to make the clothing switch and was then led up the stairs shoeless, in new socks.
There were only scattered shouts from the crowd to hang him; most craned their necks in silence.
Bethea’s head was hooded, and after the trap door failed to open on the first try, he was properly hanged. Some members of the crowd surged forward while Bethea was still breathing, to rip up the hood for bits of souvenir cloth. Despite this whiff of mob violence, most attendees peacefully dispersed, justice having been done.[*],[13]
Punishing Cheaters
So now we’ve got the plan to abolish prisons and the idea of criminality and switch to quarantine approaches. All set. But likely to be unsuccessful because of those “intense, complex and often rewarding feelings we have about getting to punish someone.” Which raises the key issue of how punishment evolved.
It’s easy to get impressed with the extent of our own human sociality; 2.9 billion users of Facebook, Europe opening its doors to Ukrainian refugees,[*] Mbuti rainforest hunter-gatherers in Congo being up on the Kardashians. But we’re not the only ones. Baboons live in groups of fifty to a hundred. A gazillion fish school together. A million wildebeest migrate as a herd in the Serengeti each year, leaving mountains of gnu dung. A mob of meerkats, pack of wolves, clan of hyenas. Social insects, slime molds, single-cell bacteria living in colonies.
A driving force on the evolution of sociality is the fact that it fosters cooperation, many hands making for light loads. African Cape hunting dogs pursue prey cooperatively, where some will cut a corner, run diagonally, to be ready if the prey changes direction. Ditto for chimps, where some drive potential prey, usually a monkey, in the direction where other chimps are ready and waiting. Female bats feed each other’s babies; meerkats and vervet monkeys endanger themselves by revealing their location when they give predator alarm calls that benefit everyone. There are those social insects forgoing reproduction in obeisant loyalty to queen and colony. Single-cell bacteria cooperatively form multicellular structures that are needed for reproduction. Then there are the slime mold’s constituent members, studying together for the maze-solving final. There’s even the nascent field of sociovirology, concerning cooperation between viruses in better penetrating and replicating in a target cell. At the turn of the last century, scientists in the West were busy misinterpreting Darwin as showing that evolutionary success is built solely on competition, aggression, and domination. Meanwhile, Russian scientist (and historian, philosopher, ex-czarist prince, revolutionary, and gently fire-breathing anarchist) Peter Kropotkin published a book sixty years ahead of its time, Mutual Aid: A Factor of Evolution.[14]
The ubiquity of cooperation among social species raises a ubiquitous problem. Sure, it’s great when everyone cooperates for the greater good, but it’s even better when everyone else does that while you mooch off them. This is the problem of cheating. A lioness conveniently lags behind the others in a dangerous hunt; a bat doesn’t feed the others’ kids but freeloads on their cooperation; a baboon stabs his coalitional partner in the back. Two separate colonies of genetically identical social amoebas merge to form a multicellular structure called a fruiting body, which consists of a stalk, which gives stability, and a cap. Only the amoebas in the cap reproduce, and cooperation consists of each colony equally sharing the bummer of being nonreproducing stalk cells; instead, different strains will try to cheat, exploiting the other colony by preferentially hogging seats on the cap. Even mitochondria and stretches of DNA cheat in cooperative ventures.[*],[15]
And sure as the day is long, the ubiquity of cheating drove the evolution of countermeasures to detect and punish it. Chimps that fail to support an ally in a fight are pummeled afterward. Wrens that don’t feed the nestlings of the dominant breeding pair are attacked. Naked mole rat queens are aggressive toward workers that are slacking. In the mutualism where reefer fish are cleaned by wrasse fish that get to eat the parasites they harvest, some wrasses cheat to get an even better meal by taking a bite out of the reefer fish; they are then driven away and chastened, less likely to renege on their mutualistic contract afterward. Social bacteria won’t form fruiting bodies with bacterial clonal lines that cheat. Green algae have developed means of not passing on egregiously selfish mitochondria when the cell divides. Cells evolve the means to silence all of the copies of a transposon whose self-serving replication has gotten out of hand—for example, a particular exploitative type of transposon invaded fruit flies in the 1970s, and it took forty years for the flies to evolve the means of punitively silencing it.[16]
Crucially, punishment works to maintain cooperation. In economic games involving a pair of players (e.g., the Ultimatum Game), one of the two is given the power to exploit the other. And putting the lie to the myth that we are nothing but Homo economicus, rational optimizers of self-interest, players in the driver’s seat typically don’t start off exploiting as much as they could. If the other player has the opportunity to punish the first player for being unduly exploitative, exploitation subsequently decreases further; in the absence of a mechanism for punishment, exploitation festers.[*],[17]
The right kind of punishment at the right time matters for enhancing cooperation. A monumentally influential example of this came from a game theory study in 1981 by political scientist Robert Axelrod and evolutionary biologist W. D. Hamilton, two titans in their fields. The experiment involved the Prisoner’s Dilemma (PD), a game in which two players, unable to communicate, must each decide whether to cooperate with or cheat against the other player—if they both cooperate, each gains some brownie points; if they both cheat, they both lose. So obviously, one should always cooperate, right? But not so fast—if the other player cooperates while you stab them in the back by not reciprocating, they lose a bundle of points and you get the biggest reward of all; if it’s you who is the overly trusting goat, the opposite ensues. Axelrod and Hamilton asked an array of game theorists to tell them what their PD strategy would be and ran a computerized round-robin tournament where each strategy was pitted against each of the other ones two hundred times. And amid some complex algorithms for contingent punishment, the strategy that won was the simplest—tit for tat. Start off by cooperating, and continue to do so unless the other player double-crosses you; at that point, do it back in the next round. If they continue cheating, continue punishing them back, but if they go back to cooperating, you resume the same in the next round. A strategy that has clear rules, that starts with cooperation, that is proportionately punitive against cheaters, and that can forgive. This study launched an industry of follow-ups exploring variants on tit for tat, their evolution, and real-world examples in various social species.[18]
The punishment scenarios in the Ultimatum Game or the PD are termed “second party” punishment—where a victim revenges themselves on a bully. An even more effective mechanism for suppressing cheating and fostering cooperation is “third party” punishment, when an outsider steps in and punishes the jerk. Think police. This is a much more sophisticated domain of punishment; while infants show the rudiments of it, they take years to do so consistently, and it is unique to humans. This is an altruistic act, where you pay a cost (e.g., your effort) to punish someone for everyone’s good. Reflecting that altruism, people who are prone to do this tend to be prosocial in other realms[*] and show disproportionate activation of a brain region involved in perspective-taking[*]—they excel at viewing the world from the standpoint of the victim. Moreover, treating subjects with oxytocin, a hormone that stimulates in-group prosociality, increases people’s willingness to take on the burden of third-party punishment.[19]
Then there’s fourth-party punishment, where a third-order witness is punished for not doing their job—think of honor codes where you get in trouble if you don’t rat out the person you saw cheating, or of police arrested for taking bribes. And fifth-party punishment—punish the police review board for not punishing corrupt cops. Then sixth-, seventh- . . . at which point you’re describing a network of people willing to punish to maintain cooperation.
Cool cross-cultural research shows that small, traditional cultures—say, hunter-gatherers or subsistence farmers—don’t carry out third-party punishment (either in real life or when playing economic games). They fully understand when cheating occurs but just don’t bother. Explanation: everyone knows each other and what they’re up to, so you don’t need fancy third-party enforcement to rein in antisocial behavior. Supporting this, the larger the society, the more formalized the third-party policing. In addition, fourth-party punishing of third-party cheating works best when there are only a small number of third-party enforcers—think of the chaos if, instead of police, things ran solely on citizens’ arrests.[20]
Cross-cultural research casts light on the emergence of the ultimate form of third-party punishment, namely deities who monitor and judge humans. As studied by psychologist Ara Norenzayan of the University of British Columbia, gods invented by cultures built on small social groups have no interest in human affairs. It’s only when communities get large enough that there’s the possibility for anonymous actions, or interactions between strangers, that we see invention of “moralizing” gods who know if you’ve been bad or good. Consonant with this, across an array of religions, the more that deities are viewed as punitive, the more people are prosocial to anonymous, distant coreligionists.[*],[21]
Thus, punishment in its game-theory versions discourages cheating and facilitates cooperation. But there’s a big problem—punishment is costly. Suppose you’re playing the Ultimatum Game, and the other player makes you an offer of 99:1. If you reject their offer, you’re giving up the opportunity to get one dollar, which, while not great, is better than nothing. Rejecting is irrational and costly . . . unless you’re playing a second round with the person, where your rejecting a lowball offer will prompt the other player to come back with a better offer that produces a net gain for you. In a case like this, punishment isn’t costly; instead, such self-serving punishment pays off in the future (assuming you have the privilege of being able to hold out for the future instead of accepting whatever crumbs are being offered).
