Bill Stuntz over at Less Than the Least has an intriguing post about the relationship between culture, law, and punishment. He makes a number of good and interesting points about how culture shapes the law. He judiciously states:
A good deal of social science research suggests that people obey the law, when they do so, because the legal system seems fair and legitimate.
This is indeed true, but the implications are quite far-reaching and often at odds with the orthodoxy of what is considered the proper aim of crime, punishment, and responsibility.
The law in many respects is an emotional process. For all of the stoic statutes and dry regulations, how people relate to the law is governed mostly by their perceptions of justice and fairness. For the criminal code, legitimacy is strongest when the law is proportional to the behavior regulated. If we think about it, the common perception is that the criminal law is about regulating and punishing serious matters of the morally accepted code that we all share in common. Thus, the malice in se crimes such as murder and forcible rape are universally viewed as morally repugnant and deserving of the strongest punishments the law can dish out while crimes without malice suggest less punishment.
That is how (and why) the criminal law is perceived as the most powerful sector of law within our culture. First Amendment cases may get a lot of media play, but from arrest to delving out punishment, the criminal code compels behavior in a manner that other areas of the law fear to tread. And this is so perhaps because the emotional force behind behaviors deemed criminal touch at the heart of what it means to say that we're a people "governed by the rule of law." After all, what separates chaos from order among all societies fundamentally rests upon the perception of safety among the people who live within those societies. It’s no coincidence that lawless places are violent ones.
All of this is rather intuitive, but there are potent implications when we accept that criminal law obtains its legitimacy in this fashion.
One upshot is that despite all of the rhetoric about incapacitation and deterrence as the true legitimate goals of punishment, it should hardly be surprising that the desire for retribution retains strong public support. If crime and the law’s reaction to it is mostly an emotional affair, removing retributive justice should make the criminal code seem less legitimate not more so. And while good arguments can be made that emotions and criminal law are a bad mix with the propensity for bad and unjust outcomes, the abrogation of emotions from our criminal justice system leads to a cold and inhuman one. This is a system where punishment is doled out based on actuarial models of recidivism prediction with less attention paid to the emotional costs of crime to society, its victims, and the perpetrator as well. It’s not that we don’t give attention to the outcry of victims or the human cost of prolonged incarceration for offenders, but that it’s considered mainly irrelevant to the formal operation of the incapacitation-deterrence model that matters.
And under this criminal justice system, there’s little room for redemption as well. Courts are increasingly comfortable relying upon these actuarial measures of recidivism in determining punishments and civil commitments for essentially criminal behaviors. Yet these measures rely mostly upon static (historical) factors with little – if any – attention given to dynamic (changeable) factors that are supposedly amendable to rehabilitation. Now it might be the case that empirical research strongly suggests static factors account for the largest part of the variance among recidivists and many rehabilitation programs leave much to be desired; but it remains unknown whether the failure of dynamic factors relates to the recalcitrance of offenders or the lackluster rehabilitation programs offered at most penal institutions (it’s probably both; but some programs seem better than others). Yet under the calculating incapacitation models of punishment, it’s largely beside the point: recidivism rates can easily be applied to a host of offenders and public safety assured as long as our penal system is willing and able to invest in prolonged incarceration for most offenders. It’s a system that holds the promise of great effectiveness once all of the humanity is removed and sufficient resources are appropriated. A cold, calculating model of punishment will provide safety as long as we’re willing to pay the cost.
The disconnect between emotion, punishment, and the law’s legitimacy is pernicious to our culture. We are increasingly at ease with a criminal code whose growth favors inclusion of lots of malum prohibitum crimes at the expense of the criminal justice system’s full attention towards serious breaches of the universal moral code. We are routinely told that plea-bargaining is inevitable and necessary even for the worst crimes because our over-burdened system of justice can't survive without it. Simultaneously, our legislative government seems hooked on adding to this burden by enacting more criminal statutes as the chief method of handling undesirable social behaviors that are not malicious acts of depravity. The marriage of the law and behavioral modification under various mental health projects which utilize the power of the criminal law to solve social problems via the proliferation of specialty courts is also celebrated, with few concerns about the additional insidious inroads such programs foster for the heavy hand that is the criminal law.
These legal and cultural developments threaten the law's legitimacy just as unequal application of the law does. The erosion of personal accountability is ripe within our culture and legal scholarship as the fetish of jettisoning the ideas of free will, choice, and responsibility for a variety of behaviors gains momentum.
But as Shakespeare alluded to in King Lear, such is folly:
This is the excellent foppery of the world, that,
when we are sick in fortune,--often the surfeit
of our own behavior,--we make guilty of our
disasters the sun, the moon, and the stars: as
if we were villains by necessity; fools by
heavenly compulsion; knaves, thieves, and
treachers, by spherical predominance; drunkards,
liars, and adulterers, by an enforced obedience of
planetary influence; and all that we are evil in,
by a divine thrusting on: an admirable evasion
of whoremaster man, to lay his goatish
disposition to the charge of a star! (1.2.132)
Sometimes the old conceptions of responsibility, justice, and punishment are the right ones.
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