Tuesday, July 25, 2017

Retribution, The Limits Of Punishment, And The Question Of Unenlightened Motives

Cells of the prison on Alcatraz Island. Posted to Flickr by marine_perez; used under Creative Commons licence.

In last week's New Yorker, the classicist and political scientist Danielle Allen has a searing personal history essay about her cousin Michael, who enters the criminal justice system as a result of minor crimes at age 15, gets derailed in life, and ends up dead -- murdered at a young age.

You should read the whole piece. It is a heartbreaking personal story and also a commentary on race, culture, and the concept of punishment in the contemporary US. Like many young black children, Michael confronts a series of obstacles. Like many young black men, when he gets into trouble, his crimes are punished in ways that are wildly disproportionate.

As Allen explains, among other things Michael was caught up in a serious of specific criminal justice policy changes, motivated by general societal fears and ideas about what the concept of punishment is for. In 1994, eighteen months before Micheal got into trouble, California's Three Strikes and You're Out law had gone into effect: three felonies means twenty-five years to life or a plea deal. In 1995, panic over rising carjackings had led the state to lower the age at which a teenage can be tried as an adult for that crime to 14 years old. Micheal tried to steal a car; the prosecutors found a way to charge him with four felonies based on what the police said were spontaneous confessions at the hospital after he got shot by the car's owner.

From a philosophical point of view, Allen says that California legislators had not only given up on prison as rehabilitation, they had also given up on the idea of prison as retribution. Retribution, as she says, "limits how much punishment you can impose." "Anger drives retribution," she says. "When the punishment fits the crime, retribution is achieved, and anger is sated; it softens."

The policy on carjacking was not about retribution, it was about deterrence. It was driven by fear, and the crafters of the policy were focused on aggregate crime statistics. As Allen says, "The target of Michael’s sentence was not a bright fifteen-year-old boy with a mild proclivity for theft but the thousands of carjackings that occurred in Los Angeles." This is dehumanizing, and wrongly puts the massive burden of society's problems onto a young man's shoulders.

From a philosophical point of view the question about punishment as deterrence versus punishment as retribution often occurs in the context of the debate over ethical theories that are "consequentialist" -- in which we should aim at the production of the most well-being overall -- versus theories that are "deontological" -- in which we should follow certain rules and respect certain specific values.

It is partly because I agree with Allen's perspective on the problems of "aggregative" moral reasoning that I am not a consequentialist; as I've written about, I believe in justice and other values, and I think these values put constraints on our behavior. One of those constraints would concern the appropriate limits of punishment. 

The theoretical debate between consequentialism and deontology is massively complex, and I can't hope to contribute something to that debate here. But I would like to comment on the mood, tone, or quality of motivations associated with retribution versus deterrence.

In my experience, retribution is sometimes informally regarded as a problematic concept, arising from base and unworthy emotions. It is associated with motives that are thought to be low, unenlightened, and uncivilized.

We evolved to have retributive moral judgments, so the thinking goes, because back in the day, evolutionarily speaking, punishing was needed to keep community members in line. But we thinking people should rise above these base motives. Once we know our aim or goal is to make the world a better place, we don't need base motives like anger or retributive judgements. Instead we can cooly calculate which action will have the best effect, and simply do that. Deterrence is seen as "helping" while retribution is seen as abusive.

I once joined a multi-disciplinary audience listening to a speaker talk about ethics and robots. You want your robots to do good things and not bad things, but what does that mean? There was a general sense that the robot-makers wanted to answer the question with consequentialism: do the things that will bring about well-being overall. Aggregate.

In discussion, I tried to explain what seemed to me the importance of moral responsibility, and the inchoate sense I had that moral responsibility was something we do, and should, ascribe to humans. It matters why things are the way they are and who made them that way. Maybe the choices of robots could be tracked back to creators, so that a person would take responsibility for the choices the robot made.

The other people present really did not agree with me -- especially the computer scientists and engineers. They suggested that "moral responsibility" sounded like I wanted to punish people. And wasn't retributive punishment so barbaric? Who needs it? If you're being constructive and positive, you focus on the future. You want good results. Who cares why things are the way they are, except insofar as it's useful for thinking how they should be?

If we'd had more time, I would have tried to explain how, far from being barbaric and unenlightened,  responsibility and retribution fit into what I see as a human way of interacting, that values and respects people for themselves, for who they are, as individuals -- that aggregating people is more like managing them than caring about them.

I realize this brief foray into the cultural moods of retribution and deterrence does not settle the theoretical issues in debates over moral philosophy. But I was so moved by Allen's way of bringing out the potential humaneness of the retributive point of view -- how, far from being base and uncivilized, that framing encourages us to see individual people as worthy of respect, and forces our attention to the limiting of what counts as an appropriate punishment.

Tuesday, July 18, 2017

The Dying Art Of Difficult And Awkward Conversations

A few years ago, I was trying to sleep around 2:00 in the morning and the people in the apartment next to me were making a racket having some kind of party. As I lay there in bed, I contemplated my options and waffled over whether to get up and knock on their door. I believe in the right to party and make noise, but as it got toward 2:30 or 3:00 I decided enough was enough.

As I threw on some clothes, I worked myself up to a state of dread and fear about the conversation. I had never met the neighbors, who had moved in not that long before. I pictured energetic partying people, angry at me for interrupting them. I pictured large guys answering the door and looking at me like I was the worst person ever. I pictured years of living next door to these people who regarded me as an asshole. I pictured them finding the smallest reason to complain back, as the years wore on.

I crept out into the hall and knocked on their door. A woman answered, with a man standing a bit behind her. They were smiling. I explained, nicely, that I was trying to sleep. They were extremely apologetic. They hadn't realized how the noise would carry. They expressed concern and kindness. They immediately quieted down, and the next day they left a ten dollar Starbucks gift card and a note on my door. I wrote them a thank-you note.

And as I have on other occasions, I found myself wondering at the power of talking to people in person and the difference between what we imagine and what is real when it comes to certain kinds of difficult conversations. I have had many similar experiences, where reality confounded expectations. It's a platitude that open honest conversation produces good results, but it's also human nature to want to shy away from conflict. And platitudes are often stupid. But in this case there's something to it.

It's not always true and there are assholes everywhere. But if you have a problem or something you need or want, and you express yourself with respect and kindness, it's amazing how many people will be respectful and kind right back to you. 

I would go even further and say that negative or difficult conversations often draw people closer together. I don't know if you've had this experience where only someone's judgment or need conveyed to you the depth of their concern. When people are a hundred percent live and let live, you can't get any grip on where you are with them.

I'm not one of those people who are always complaining about "kids these days" and I think generally speaking the younger generations are wonderful and unjustly accused of all kinds of ridiculousness. I don't buy into the idea that their desire to make the world a better and more just place speaks to some kind of weakness on their part.

But I do think that all of us are getting even more reluctant to have difficult or awkward conversations, probably for a range of reasons, some of which involve the internet. Sometimes out and about, I see people waiting and waiting for their needs to be acknowledged -- by a stranger or a service person -- seemingly reluctant to speak up and say "Excuse me, can I get some help"?

I don't know if you've noticed this, but in women's bathrooms in public places, women will line up behind one another, entering only the stalls that someone is coming out of, and leaving a bunch of stalls open and unused, because they don't want to be "that person" who is either knocking, or trying the door, or looking for shoes under the stall, to see which ones are empty. Because it's awkward.

Somehow I feel like the extra negativity we feel when we hear these things by email or virtually has infected our impression of how we'll feel when we have these difficult conversations in person. It's tempting to think that bad news should come virtually, since the person can react privately and won't be put on the spot. But I think that's a mistake. When I have bad news to convey, I feel like conveying it in person just passes along so many human emotions along with the news, it can't help but be made better.

I remember a long time ago when I was in high school, I had these two teachers. One was relentlessly positive and always told us the nicest, most supportive things. She was like a cheerleader for students. The other was difficult, and caustic; she was the faculty member in charge of the literary magazine and when she thought students were being stupid or lazy she would tell them so in no uncertain terms.

I remember that when I applied to a summer arts program, I had to get some letters of recommendation. And I was so much more comfortable asking the grouchy teacher than the supportive teacher. Because the supportive teacher was so supportive -- I had no idea what she really thought of me, or what she really thought about anything. The grouchy teacher, I knew she thought I was smart and talented, and I knew she thought I was imperfect, and we were good to go.

Difficult and awkward conversations are difficult and awkward. But especially when you have them in person, they're often OK. As we get less comfortable being awkward together, I hope they don't disappear entirely.

Tuesday, July 11, 2017

I Am Away But Here Are Two Photos That Gave Me A Complicated Feeling

I'm away at a conference in Prague, and I thought I'd have time to write something, but the stresses and complexities of international travel got to me and I didn't.

For your entertainment, however, I can offer these two photos, of a Prague window/storefront for a place offering iPhone repair: 


In case you can't tell, this is window-areas littered with broken and discarded iPhone parts, mostly screens, with one actual Mac showing gadgetry insides.

I had a complicated emotional response to this sight. I thought it was a cool, original, and artistic idea. I like the way it looks -- it actually does look like art. I like the idea. On the other hand, it's depressing to see all this junk, and it's awful to be reminded of the mass of garbage that our lives generate.

I'm even ambivalent about all the broken screens. I'm the type of person who uses a protective cover for my phone, because I'm the of person who drops my phone and doesn't want to deal with breaking it. When I see young people (and it is mostly young people) using fancy phones with no protection, my first instinct is something to be like "What are you doing! That's a nice phone! What happens if you drop it!"

And yet -- there's something I love admire about the anti-protection commitment. I was also the kind of young person who wouldn't have used any protection on my phone, and would have been heartbroken when the screen cracked, but who would also have gone on the same way, unwilling to give up the aesthetic commitment for some dumb practicality like "the phone might break."

I know I'm more sensible now, but sometimes I miss that adolescent spirit I had, and wish I could be that person again. 

Tuesday, July 4, 2017

A Few Philosophical Thoughts On "Taxation Is Coercion"

Pieter Brueghel the Younger, "Paying the Tax (The Tax Collector)," via Wikimedia Commons

I feel like there's been an uptick in people in the US using "taxation is coercion" or "taxation is theft" to support their given point of view. The topic is obviously enormous and too large to be dealt with in a short blog post, but these are just some thoughts that come to my mind about this idea from the philosophical perspective.

Taxation is only coercive against a backdrop of a very specific theory of ownership -- one in which you have full property rights to whatever you gained in a voluntary transaction. But as we've discussed before, this theory of ownership faces several serious and well-known problems.

First, contemporary economic activity is now enmeshed in complex webs of social, cultural, and political structures and relationships. Many modern voluntary exchanges would be impossible without infrastructure, education, etc. etc. etc. As is often pointed out, the question isn't whether we have to pay for these things -- it's just how much.

Second, if we actually tried to follow a principle in which everyone has full property rights to whatever they gained in a voluntary transaction, we'd run immediately into the difficulty that vast wealth and holdings in western countries derives partly from utterly non-voluntary transactions.

This is because in a theory where you have full property rights to whatever you gained in a voluntary transaction, you do not have rights to whatever you gained through a non-voluntary transaction, and you do not have rights to what was stolen or taken by force. If A steals a diamond ring from B, then A doesn't own the ring -- B does. If A sells the ring to C, C also does not own the ring: justly speaking, B owns the ring, C owns the money they were going to trade for the ring, and A doesn't own anything.

But the land and wealth in rich western countries is enmeshed with a violent history of colonialism, slavery, war, and theft. Under the theory of ownership being proposed, who would own the land in North America? Presumably, Native Americans and Indigenous people and no one else. So the theory leads to very different consequences from the ones it's typically taken to support.

Third, when the full ownership theory is used in ways people don't like, there's a lot of uproar about it, suggesting most people do not endorse or agree with that theory. When Martin Shkreli bought the rights to life-saving drugs and then radically raised the prices, what he did was well within his rights in the full-ownership theory of property. It's his -- he gets to do what he wants.

I've been surprised by the degree of hate against this guy from all sides. I mean, I think the outcomes are bad, but then I'd endorse a different health care system entirely. It's the lack of supporters from other sides I'm struck by.

As I mentioned before, on Reddit there was general applause when a doctor pressed Shkreli on what improvements in the drug "warranted" the price increase. But that's not how our system works. I actually thought Shkreli made a valid point when he said in 2015, “Our shareholders expect us to make as much money as possible ... That’s the ugly, dirty truth.” That's true. The problem is with the system, not with one specific guy.

Anyway, moving beyond the full ownership theory, it seems to me that whatever theory of ownership you adopt, a claim about "coercion" is a moral claim, and once you're in the realm of morality, things are never straightforward. As I discuss in my 2015 book, many people endorse multiple values. In our society, that range of values often includes some right to be free of certain kinds of interference. But it also often includes other values like justice, benevolence, honesty, fidelity, and so on.

So whether taxation is "coercive" isn't the end of a discussion. It's the beginning of a larger discussion, about ownership and what is and isn't coercive, but also about how all the various values we endorse should be implemented and prioritized in some sensible way. Obviously, this is something the citizens can, and do, disagree about, and that's one reason politics is complicated and fraught. 

I don't endorse the kind of full ownership theory that would be necessary to conclude that taxation is coercive, partly because, as this book review explains, taxes are "part of the entire system of property relations, not something that happens after property accrues in private hands." That is, there's no "A owns X and B owns Y" and then you have taxes. Rather, taxes are part of the system of property relations that entails what, exactly, A and B own.

And if property relations are a system of which taxes are one part, then I also believe that other values, like justice and fairness, should play a rule in structuring that system.