Crime and Punishment

Over here is a discussion on what should happen to Bernie Madoff. Posit that he's guilty, I don't think there's much doubt of it. The author is calling for "cruel and unusual" punishment, and asking for suggestions. I'm sure he'll get many. Some will probably be morbidly amusing, some will be just morbid, perhaps a few will be insightful. Some will want him dead, others will want him in prison for the rest of his life. Interesting that the solution to someone who's stolen $50 billion is to have his food, shelter, and clothing paid for for the rest of his life by me, you, and the rest of us. (Please don't misunderstand, I think that punishment of criminals, including incarceration, is one of the few completely justifiable uses of taxpayer money, and Madoff's is an entirely appropriate place for it. I do think it gets over-used, and when someone commits a crime that harms no one but themselves, it does an injustice to us all. The criminal is harmed, the nation is deprived of whatever value the criminal could have otherwise provided during his incarceration, the taxpayers are harmed by having to support him, and we are all harmed by the loss of freedom embodied in the law)

I've always been fascinated by what people call for when it comes to the punishment for crimes. Entirely reasonable people can have wildly divergent views of what is appropriate, views so different that they simply cannot fathom the opposing point of view. Whenever intelligent and thoughtful people disagree so strongly, there's usually something interesting at the root of it all. In this case, I believe that people have fundamentally different opinions on the purpose of criminal sentencing. I can see four basic purposes for criminal sentencing: rehabilitation, revenge, deterrence, and prevention. People will generally weigh one or two of those very heavily, and often don't even acknowledge the existence of the others. This is what leads to the disjoint.

Rehabilitation is generally based on the idea that there is something about a criminal that caused him to commit his crime. Moreover, it's based on the idea that whatever that thing is, it can be changed. Perhaps he doesn't realize that what he did was wrong, or the harm that it did. I don't understand people who do not recognize that harming others is fundamentally wrong, but I acknowledge that they exist. I find it hard to believe that they can be made to understand, but perhaps there are some that can. The difficulty comes because it's difficult to distingush between those who cannot learn and those who merely haven't. If rehabilitation fails, is it because the dosage is too low, or is it the wrong medicine? There's another form of rehabilitation which is a bit trickier. If a person has no skills that he can use to acquire gainful employment, he may have little choice but to commit crimes. Crime may not pay, but it is always hiring. If such a person is given training in useful skills, then upon his release he will have an actual choice: continue to support himself by crime, in which case he falls into the former category of people who don't understand that crime is wrong; or he supports himself by creating value, in which case everyone is better off because of it. So here we have a conundrum. We can see that there is a subset of the population for whom the only path to becoming productive members of society is via crime, followed by arrest, sentencing, rehabilitation, and finally, hopefully, employment. This is far from optimal for anyone involved. It would certainly be nice if our education system produced people fit for immediate employment on graduation, and in most cases it does, but far too often it completely fails in this regard. There may be solutions to that problem, but most of the proposed solutions are either ineffective, unpopular, or both. Once the education system has failed, the next best hope is an employer who is willing to train. Unfortunately, there is a strong disincintive for any business to hire someone who is unable to create sufficient value to offset a minimum wage salary. The solution to that problem is both obvious and widely unpopular.

Next we find revenge. Here is where you will find the calls for cruel and unusual punishments. Here is where you see people clamoring for "an eye for an eye and a tooth for a tooth," at least whenever such a thing can be done. Revenge is impractical, illogical, and emotional, but very popular. It doesn't resonate with me (although I certainly feel sympathy with the victims of crimes), so I can't speak much to the underlying motiviations for it. The distinguishing characteristic here is that those who clamor for revenge often care little for rehabilitation, and in fact are often strongly opposed to it. Their primary concern is that the criminal must be harmed proportionally to his crime. I do feel that it is worth noting that much of the purpose of systems of justice lie in the prevention of revenge. Victims are not given the task of sentencing. The judges and juries who have that responsibility are, we hope, impartial.

Deterrence is somewhat similar to revenge, but the purpose is different. In a way, it is revenge made practical. Unlike both rehabilitation and revenge, which focus on the criminal, deterrence focuses on other potential criminals. It provides punishments severe enough that those who may consider commiting a crime are given a reason to reconsider, in their own best interests. While both are certainly laudable, deterrence is often at cross-purposes with rehabilitation. I found it very interesting to see the distinction in the different views during a, shall we say spirited conversation that followed a rather crude joke involving prison rape. For an advocate of rehabilitation, such a thing is completely offensive. There is no way that prison rape is in any way beneficial to rehabilitation. For the advocate of revenge, perhaps it's seen as a justified part of a criminal's punishment. If the purpose of prison is to be horrific, then that certainly qualifies. However, for the advocate of deterrence, the most important thing is the perception of prison as a horrific experience to be avoided at all costs. For that person, even if prison rape is (rightfully) considered abhorrent and should be prevented if at all possible, joking about it is actually beneficial, as it increases the percieved detriment of a prison sentence. It's easy to see how a pure advocate for each of these purposes could completely fail to understand the others.

Prevention isn't exactly the right term, so let me explain what I mean. A thief who is in prison is unable to steal, so long as he remains in prison. Or at least, he's only able to steal from his fellow inmates. Prevention in this sense has only limited utility, and is best when combined with rehabilitation. The thief is prevented from stealing by incarceration until such time as his rehabilitation is complete and he no longer has a desire or need to steal. For more serious crimes, where rehabilitation fails, prevention may be the only solution. For a serial killer, incarceration may have elements of revenge and deterrence, but it also has the practical effect of preventing the criminal from killing again. In this sense, capital punishment can be viewed as a form of permanent incarceration with no chance of parole, pardon, or escape. Unfortunately, capital punishment is usually viewed, both by its advocates and its detractors, as purely a vehicle of revenge.

So now, in light of all of that, lets return to Bernard Madoff. Besides his fraud, he was a successful businessman, so I seriously doubt that employment rehabilitation is of much use in this case. I suspect that he knows well that what he did was wrong. I also get the distinct impression that he didn't care, and probably never will. Thus, rehabilitation seems a bit pointless in this case. I'm not sure that he understands that what he did was also stupid. He is a businessman. He certainly should understand that entering into a business whose only viable exit strategies are death or prison is just plain stupid. Revenge is popular, and that is where we see the calls for cruel and unusual punishment. His crime was certainly unusual in its unprecedented magnitude, but it wasn't particularly cruel. While he certainly harmed many people, he didn't physically damage anyone. Yes, there has been one suicide, which certainly seems to me a gross overreaction to any financial calamity. Some people lost nearly all they had. As a side note, those people will hopefully act as a deterrent themselves. Hopefully someone will learn the lesson that diversification of one's investments is an important protection against many things, including but not limited to gross fraud. Acting as a teacher in such a way certainly doesn't diminish the magnitude of the fraud Madoff committed, but I do hope that at least some good came of it. As a deterrent to potential frauds of the future it's certainly important that Madoff be sent to jail. Given the stupidity of his actions, and the fact that few are ever in a position to be able to commit fraud of this magnitude without first being elected to congress, I don't know how much of an effective deterrent his punishment may be. Will a street-corner con man be given second thoughs by Madoff being handed a life sentence? Probably not. But for those few people who are in a position to commit fraud on a grand scale, I'd certainly like to see the message sent that such acts will be dealt with harshly. And then there's finally the aspect of prevention. I don't know what Madoff's sentence will be. It certainly should consist of at least the loss of all his assets and a significant time in prison. Given that he's 70 years old, any reasonable sentence will most likely be a life sentence. But I will say this: if he ever is released from prison, I do hope that at least one special condition is attached to his sentence. I hope that he is legally prohibited from ever changing his name. Given the publicity and magnitude of his crime, that should certainly prohibit anyone from ever trusting him enough to ever let him commit a similar fraud.