Knowledge And Decisions

The moral questionability of punishment derives from the premise that “vengeance” is a “brutalizing throwback to the full horror of man’s inhumanity in an earlier time...”²⁶⁸ This argument from location in time is buttressed by claims that a personified “society” itself causes crime. According to this theory, “healthy, rational people will not injure others,”²⁶⁹ so that crime is the result of a social failure to create such people or to rehabilitate the criminal into becoming someone who “will not have the capacity — cannot bring himself — to injure another to take or destroy property.”²⁷⁰ Neither blueprints nor examples are provided. Moreover, these quotations are not from a sophomore term paper, but from a book widely hailed by legal scholars, practicing lawyers, and leading newspapers and magazines.²⁷¹ In a similar vein, Chief Justice Earl Warren found crime “in our disturbed society” to be due to “root causes” such as “slum life in the ghettos, ignorance, poverty” and even — tautologically — the illegal drug traffic and organized crime.²⁷² “Root causes” are prominently featured in this literature,²⁷³ and confidently spoken of as if they were well-documented facts, rather than arbitrary assertions at variance with the empirical relationship between the rising crime rates and reduced poverty and discrimination. The idea that people are forced to commit crimes by bad conditions of one sort or another also ignores thousands of years of history during which kings and emperors, raised in the midst of luxury, committed the most brutal atrocities against their subjects.

The argument that punishment does not deter takes many forms. At the most primitive level, failure of punishment to deter is claimed on the ground that various crimes — or crimes in general — have not been categorically eliminated. From this standpoint, the very existence of crime is proof of the futility of deterrence, for “criminals are still with us.”²⁷⁴ By parallel reasoning, we could demonstrate the futility of food as a cure for hunger, since people get hungry again and again despite having eaten. An old joke has a small child decrying baths as futile because “you only get dirty again.” Similar reasoning by a grown man who was also the top law enforcement officer in the country seems somewhat less humorous, though no less ridiculous.²⁷⁵

The meaningful issue is not categorical deterrence but the incremental effect of punishment on crime rates. It is easy to become bogged down in the question as to how much the environment is responsible for crime as compared to individual volitional responsibility. But even if we accept, for the sake of argument, that environment is largely responsible — or even solely responsible — it does not follow that punishment is futile, either incrementally or categorically. Punishment is itself part of the environment. The argument that environmental forces influence or control the incidence of crime in no way precludes punishment from being effective, though that theory has often been put forth for that purpose. This is ultimately an empirical rather than a philosophical question, but commitment to the social reform or “root causes” approach has meant that few legal or sociological theorists “are even willing to entertain the possibility that penalties make a difference.”²⁷⁶ Only in relatively recent years have there been a few serious statistical analyses designed to test the empirical question — and they have indicated that punishment does deter.²⁷⁷