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.

What this country needs

Now there's a broad topic not amenable to brief enumeration. Nor am I going to attempt to fully enumerate it. What I have here is a proposal for one specific thing that's needed by this country (or some country, or some state, or somewhere). What we need is a card, or badge, or some sort of certification guaranteeing the holder's acceptance of personal responsibility. Of course, I would hate to see any private business forced to change their behavior when presented with this card, but I would like to see government change its behavior with respect to it, and I'd certainly like for businesses to do so as well, preferably without the use of force. The card might not necessarily be free, but instead require that some funds be held in escrow to back up one's responsibilities. Let me see if I can enumerate some of the courtesies I'd like to see extended to cardholders:

• Seat belts and motorcycle helmets come directly to mind. Some fraction of the escrow funds would be set aside so that, in the event of an accident in which a cardholder was not wearing his seatbelt, any damages his body caused to anyone else's property after it was flung from his vehicle would be compensated. The remainder of the escrow funds would be available to any hospital which wished to treat the cardholder. I'm not entirely sure what should happen when the escrow runs out. If the hospital wants to stop treating the cardholder and let him die, that's certainly always acceptable. If the hospital continues to help the cardholder, I'm not sure if it should be understood that they're doing it on their own dime, or if they should be able to, if successful, bill the cardholder with the understanding that he may be unable to pay, or if there should be a notation on the card as to the cardholder's wishes in that situation. Note, of course, that being a cardholder does not in any way preclude one from wearing a seatbelt or helmet. Were I a cardholder, I would probably wear both (though probably not at the same time). It merely means that I have a choice, and will accept the consequences of that choice.
• A chardholder should have the freedom to order a rare hamburger. Not all restaurants have to comply. I certainly wouldn't expect the local fast food joint to go out of their way to accommodate a cardholder, but if a restaurant offers a choice of how a burger is cooked, and a cardholder orders it rare, that's how he should get it. If the response to a rare order is "I'm sorry, we can't serve it that way because overcooking reduces the risks of salmonella (it does), mad cow disease (it doesn't) and evil spirits (who knows? It might)," then the cardholder should be able to respond with "Here's my card. I accept those risks. Bring me a rare burger or a better excuse." I would also add to this the decision to have tomatoes on said hamburger during a country-wide salmonella outbreak that may involve tomatoes. At some point long ago, the phrase "one in a million" was used to denote an occurence of extreme unlikeliness and miniscule probability. Apparently, since that time, a one in three hundred million chance of death (or one in 1/4 million chance of illness) is such a phenomenally high risk that I cannot be permitted to run the risk of enjoying said fruit on my salad.
• A cardholder would be permitted to make investments that might be financially risky. To some extent, this is already done. The SEC and other such bodies have a concept known as a "qualified investor". Such a person is so wealthy that it is assumed (probably rightfully so) that he or she has an understanding of the trade-offs of risk and reward inherent in investments. It is my understanding that some of the current financial unpleasantness stems from people who were not qualified investors investing in institutions that were qualified, who then turned around and put that money into investments that were significantly risky. When those investments failed, so did the qualified institutions that had invested in them, and the unqualified investors in those institutions found themselves faced with the unfortunate results of a risk they were unaware that they had been taking. If we replace the financial qualification with a personal responsibility qualification, then there is no longer a need for the institutional middle-man, and anyone who is willing to personally accept the consequences of a failed risk is permitted to do so.
• Cardholders should have the authority (commensurate with responsibility) over how to treat the ills of their body. They should also have the authority to define what they consider to be ills. This is fairly straightforward at the core, but gets to be more controversial at the edges. Treating a headache with an analgesic is simple. Deciding not to treat a serious illness is more complex. Treating a terminal illness with an untested therapy is more complex. Considering sobriety as an illness for which there is a readily available cure is more complex. Knowing that smoking will kill you and doing it anyway is more complex. The response to these is so often "but he'll get sick, or get sicker, or die". While true, this is irrelevant. It's easy and simple to chose the option that is both popular and right. Having the freedom to make the wrong choice requires the authority to do so, and having that authority should only require the responsibility to face the consequences.

The card should absolutely not give its holder complete freedom to do anything he or she wishes. Specifically, it should only give the freedom to take actions whose consequences will be borne by the cardholder alone. Cardholders should not have the freedom to harm someone else. They shouldn't even have the freedom to indiscriminately destroy other's property, even if they will bear the responsibility of replacing it. They shouldn't have the freedom to put other's lives or property at significant risk. The scenario that comes to mind is when a person is either impaired or merely reckless while operating a potentially dangerous device, such as a motor vehicle, a firearm, or Congress. While in general I feel that negligence should merely enhance the severity of a crime once provable damage has actually been done, there comes a point where a sufficiently increased risk becomes its own form of damage. It's unfortunate that the exact location of that point is difficult to quantify.

Polarization

It's so very frustrating when any issue becomes polarized. The very term evokes the thought of a magnet, which has a north and a south, and there's not much more that you can say about it save its strength. But politics, economics, society and civilization aren't so much about solving the dilemmas that face the world, because that word also is too restrictive, taking its etymology from di, meaning two, and lemma, meaning premise. The problems of the world are generally more subtle and intricate multilemmas. It's not always a matter of north and south, of left and right, republican and democrat, yin and yang; it's almost always more nuanced. Much more on that later, but as an example, let's take environmentalism.

Environmentalism is an issue that has become horribly polarized. On the one side are the liberals, the democrats, the advocates of an expansive and powerful centralized government. Among them you will find those who truly and deeply care about the environment. Also, you will find those who will reap the benefits of the power and control to be garnered by exploiting environmentalism. It's difficult to distinguish the two, as the polarization has lumped them all together. On the other side, you find conservatives, republicans, and advocates for large, primarily manufacturing-based indistries. Among them you will find those who care deeply about human and economic freedom. Also, you will find industry shills, intent on reaping the monetary benefits that can be maximized by disregard for the environment (note here that disregard does not imply wanton destruction. It simply means that destruction does not incur costs, and therefore can be considered if there are benefits to be had from it). Once again, the two are difficult to distinguish.

There should be cooperation between the more honorable of both sides. True conservatives should be environmentalists. First off, I've never met a conservative (and few human beings) who didn't respect and love the Great Outdoors. There is something so inherently moving about a mountain sunset that it takes a strange person not to appreciate the beauty of it, even if they don't want to go camping. But the true conservative should be allied with the true environmentalist and against both the advocates of big government and big business. The true conservative should fight for environmentalism in the context of property rights. Property rights have historically been defended to a large extent by tort law, and in some cases it's easy to apply to environmental concerns. (Not being a lawyer, I come at this with an amature's perspective. Some of my explanations may stray from actual legal reality into the realm of what law should be.) If an entity damages its own property, then it has diminished its own holdings which, while probably foolish, should not be tortious. If that entity is a joint stock company, then there may be reason for the holders of that stock to take issue with the diminished value of the property that they have equity in, or perhaps not. However, when an entity damages the property belonging to someone else, then they have interfered with that other person's property rights, and should be held liable for that damage. If an entity dumps waste into a river, then it damages the property owned by those downstream. Those people form a class damaged by either an intentional or negligent tort. That seems to me a reasonably simple case of civil liability. I'm also reasonably sure that most legal systems make things much more complex. And even that case is simple. A river is a reasonably well defined thing, and most of the wastes that can be put in it have some hope of being quantifiably damaging. But what happens if you have a larger class? If you release persistent and harmful gasses into the atmosphere, you may be doing damage to the class of people who breathe. The class of people who own property which is covered by the Earth's atmosphere. If you do a dollar's worth of damage to that class, you find yourself liable for $6 Billion. What jury could decide that case? Who would they pay it to? To my mind, it stretches the limits of tort law. It is one of the few areas where it may be right for a centralized government to act. But the important consideration is that the government should only act if it is provable that the damages done are universal.

And that brings us to the second particularly important and difficult consideration, and that is the quantification of damage. At best, quantification of damage on a global scale is difficult. At worst, we find global warming. As wide as the rift may be between law and science, we find an even larger chasm between the world of science and the politics of global climate change. And that is because the politics of global climate change have transcended science and have become religion. The parallels are fascinating. On the one hand, we have the various sects and denominations with their varying but unwavering faith in global warming, varying degrees of faith that such climate change is man-made, and various beliefs in what the results will be. There may have even been a protestant reformation when those who believed in global cooling fell out of favor. Fortunately, the term "global climate change" is still inclusive of them, much as Catholics are still considered Christian. Then there are the environmental athiests, with a firm and unwavering faith that man is not changing the climate of the Earth. Some believe that it isn't changing, while others believe it is changing, but not by the hand of man. There are even environmental satanists. In religion, I've generally observed that Satanists are those who firmly believe in the existence of the Catholic god, but are rooting for the other team. These would be the industry shills who may privately believe that man-made climate change exists, but who don't care in the face of immediate profits.

And then there's me, the environmental agnostic. Much as the religiously agnostic are often misunderstood by both the devoutly religious and the staunchly atheist, we environmental agnostics are misunderstood by both poles who view us as probably belonging to the other side. I do have faith. I have strong and unwavering faith that, on this issue, there is far too much money to be had on the one hand and power to be had on the other for there to be any chance of objective truth being distinguishable from a clever fiction. I do not believe in man-made global warming. Nor do I believe that it is false. I strongly believe that I do not know the truth, and moreover I believe that at this time I cannot know the truth. It's a frustrating position to be in, but there is a good fight to be fought here. On the one hand, it's a fight against any who object to attempts to quantify what may be happening. On the other hand, it's a fight against those who propose to expand their own power in order to fight this problem, while not being able to show how the power that they take would actually be a benefit should the problem prove to be real. It's a difficult position to take, but I invite all of you from all across the various political spectra to join me in fighting this good fight. Our reward should we win will be meaningful solutions to problems that have objective proof of existence. That reward is welcome in any field of human endeavor.

Monoculture is bad

As with almost any such blanket statement, it's trivially simple to prove this one false in specific cases, for specific groups. As an example, the monoculture of yeast that went into a cold tasty frothy beverage resulted in an excellent refreshment. You will note, however, that it didn't work out so well for the yeast. They're all dead. So, let me say more specifically that monoculture is usually bad for the population to which it applies. The fundamental reason that monoculture is bad is because a single flaw is necessarily endemic to the population. A fatal flaw will result in extinction.

The problem is that monoculture is so cursedly alluring. On the grand scale, it's so very tempting to attempt to design a perfect society. The problem with that is that perfection is so very hard to achieve. On the smaller scale, the problem centers around the desire to do what's best for oneself. In general, this tendency helps society and individuals to flourish and grow. The problem arises when society is confronted with complex issues. Often, these issues are complex enough that it requires years of study and a fairly keen mind to understand them sufficiently well to make a good decision. In such circumstances, it's entirely reasonable to defer the decision to a trusted expert who has a keen mind, and who has spent the requisite years of study in the field. However, for a complex enough subject, experts sometimes disagree. If you have enough knowledge to know which expert to believe, then you probably don't need an expert in the first place. Thus the next place to turn is a consensus of experts. Now, don't take this to imply that a consensus of experts is necessarily wrong. Chances are, they're the best people to listen to (depending, of course, on the subject). The problem is that the consensus of experts can be wrong, and if they are universally followed, then any fallibility becomes hugely magnified. If 60% of doctors think that drug X will save the lives of their patients, and prescribes drug X for them, then if it turns out that drug X is deadly, 60% of the population will die. That's an unthinkable tragedy. If, on the other hand, the AMA listens to those 60%, bases policy on that consensus, and causes 100% of doctors to prescribe drug X to their patients in accorance with their guidelines, then if that drug turns out to be fatal, it means the extinction of the entire population. That's worse. This raises the stakes of evolution from the individual level to the societal level. If an individual makes a bad choice and dies from it, the species improves as a result. If a monocultural society makes a bad choice that results in its extinction then, well, it depends on what the universe is made up of. If the Earth is all there is, then if humanity extinguishes itself then maybe the cockroaches will have better luck. If life is endemic, then perhaps the little green men on Epsilon Eridani will make better choices. If the Deists are right and God is more of a clockmaker, then perhaps someday He'll wander back by, look at the Earth, sigh and wind us up again.

It is for this reason that I am of the political mindset that I am, which I often find seems to be confusing to so many others. I'm strongly in favor of diversity, though not so much the kind that people display by having different skin colors, wearing different clothes, and speaking different languages. I mean the sort of diversity where people live under different laws. This puts me at odds with the liberals who want the nation or even the world to conform to their view of enforced universal charity, as well as the conservatives who want the nation or world to conform to their view of enforced universal morality. While this often puts me solidly in the camp of the libertarians, even that doesn't quite fit. This is because of two simple yet humbling truths: First off, as much as I love freedom, I am forced to recognize that there do exist people who do not want to be free. The second is that while I strongly believe that freedom is the best way for society to progress, I am humble enough to admit that I may be wrong. For this reason, I am strongly in favor of a diversity of laws, and there is only one freedom that I feel should be completely inviolable. That freedom is the freedom to move from a society whose laws you do not agree with to a society whose laws you find more comfortable.

This puts me mostly in the company of the constitutionalists. The most important part of the constitution is that tenth amendment, which states, for those of you who may have forgotten "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." This means that, with 50 states and binary issues, it is possible for every single American to live in a state whose laws precisely reflect their opinion on at least 5 issues. If the states delegate some issues to the respective counties, and the counties to the cities, and the cities to the neighborhoods, and the neighborhoods to the families and individuals, then it's possible to imagine a nation where everyone is happy with their laws.

This of course does not take into account those people for whom it is important to prevent everyone from doing those things that they find distasteful. A sufficient number of those who wish to impose their laws on others (absent, of course, a monoculture of such people) will always result in some dissapointment.

But it gets better. If there is freedom of movement, and freedom to choose your own laws, then the society will have a tendency to separate, and form a diversity of monocultures, where people not only live under a set of laws that they are happy with, but live amongst people who are like-minded. It doesn't really solve the problem of consensus extinction, but it does at least give the chance that those who reject the consensus will have a place to go where their quackery is accepted. If that quackery turns out to be right, then their corner of society may be all that's left. If not, then we have the chance to see evolution in action.

The Irony Test

My father recently told me about a single-question political test he sometimes slips into conversation with friends and acquaintances. He tells them a particular fact, and if they fail to detect the irony inherent in that fact, then they have proven themselves so far away from him on the political spectrum that any political discourse with them will undoubtedly lead to nothing but frustration on all sides. I have taken his single fact and started expanding it to include others. I hope to add to it from time to time. As it currently is:

The Thomas Jefferson Memorial Commission was created by an act of Congress in June 1934. The commission oversaw the building of the Thomas Jefferson Memorial. The Commission spent over $3M of federal funds to complete the memorial, which was dedicated on April 13, 1943. Inscribed on a frieze inside the dome of the memorial is a quotation from Thomas Jefferson: "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man."

In 1977, the U.S. Supreme Court ruled in the case of Wooley v. Maynard that New Hampshire could not prosecute motorists who chose to hide part or all of its motto, "Live free or die" [which is printed on state license plates]. That ruling came about because George Maynard, a Jehovah's Witness, cut off "or die" from his plate. He found the phrase offensive because according to his faith, Jehovah's Kingdom offers everlasting life and it would be contrary to that belief to die for an earthly government. He was convicted of breaking a state law against altering license plates.

How many ironies do you detect?