Some would argue that it’s excessively cruel to torture criminals. But both prison and torture impose costs on criminals. Why is one type of cost crueler than the other? If a convicted criminal is indifferent between receiving a certain type of torture or being imprisoned for a given period of time then why would it be excessively cruel to torture but not to imprison?I think this is all correct, but misses the point. If we consider only the incentives of criminals, then the prohibition on torture seems rather pointless (so long as we don’t delude ourselves into thinking it will be very effective in eliciting information, like the site of planned terrorist attacks). But the prohibition on torture makes much more sense when we consider the incentives for the rest of us, in our role as voters and policymakers. The possibility of torture allows us to indulge our very worst impulses at low cost. As John Locke observed, one problem with humans in the state of nature is our willingness to impose excessive punishments on each other to remedy perceived violations. Torture enables us to exact harsh retribution without any great sacrifice. If torture is not frowned upon, the foreseeable result is to encourage excessive punishment of things that should be crimes (murder and so on) as well as to widen the net of state control over things that should not be crimes (like drug use). Given our built-in impulse to punish others for things we dislike, it’s actually a good thing that punishment is costly to those who impose it.
Tuesday, August 28, 2007
Tortured Logic
James Miller at Overcoming Bias argues that we have a bias against torture as a form of punishment. Using torture instead of imprisonment could achieve equivalent results (in terms of deterrence and so forth) at lower cost. The claim of cruelty doesn’t really fly, says Miller, because criminals would be indifferent between their existing punishments and appropriately selected tortures:
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“Why Not Hang Them All: The Virtues of Inefficient Punishment,” Journal of Political Economy, vol. 107, no. 6 1999 pp. 259-269.
"Torture enables us to exact harsh retribution without any great sacrifice."
So does execution. (And to the obvious response, "execution is expensive", those costs are extraneous to the intrinsic expense of killing someone, which is intrinsically as cheap as the bullet it would take, and the same might very well apply to corporal punishment - and there you have a response from another direction, namely that corporal punishment is not necessarily cheap, not if you surround it with costs as we have surrounded execution with costs.)
Not every form of punishment today is imprisonment. Some punishments are fines. Those are not only intrinsically costless, they are actually beneficial to the state. Are fines astronomical now? I'm not aware that they are too high.
Furthermore, if cheap punishment is dangerous in that it will induce us to increase cruelty of the punishment to absurd heights, then by the same token costly punishment should be equally dangerous, because we can make imprisonment as unpleasant as we like without increasing the cost - in fact, decreasing the cost. For example, we can simply stop cleaning the bathrooms. That will save us money, and it will make the prison conditions more miserable. We can save on heat in the winter and let the prisoners freeze. And so on. Why don't we do that? It isn't because doing so would be expensive. It would actually be cheaper to turn off the heat in winter. Nor is it because prison is expensive - how does the fact that prison is expensive cause us to leave the heat on in the winter? Where's the connection? There's no obvious connection. And yet we don't do it.
So something else is going on, something else is keeping the conditions in the prisons above a certain level. It's not the high cost of imprisonment. The high cost is actually an effect, not a cause, of the maintenance of a certain level of comfort in the prison.
We should expect the same mitigating factors to place a limit on the severity of corporal punishment.
With torture-vs.-fines, I think the point is that fines reap a benefit to society. Also, we don't impose fines for offenses severe enough to warrant torture. (I mean, this is a matter of opinion - I believe Singapore used to cane people for chewing gum - but that's the idea.)
With torture-vs.-imprisonment, I think the point is that imprisonment is supposed to benefit the prisoner by rehabilitating him so he can rejoin society. Torture doesn't take long enough to seem rehabilitative rather than strictly punitive.
Also, imprisonment stops crime in two ways. In addition to providing a disincentive to commit crimes, it also physically restrains criminals by keeping them behind bars for extended periods of time. Torture doesn't perform the latter function.
The physical restraint aspect of imprisonment can't be all that large a factor, because it conflicts with the variable lengths of the sentences. If prison sentences were largely to protect the public, then in order to perform that function properly they should be as long as necessary to protect the public, no shorter, no longer. For instance, statistics show that men's criminality goes down over time. A young male criminal, then should be imprisoned until he reaches the age at which the probability of a repeat offense falls below a certain threshold. But that is clearly not how the lengths of sentences are calculated.
"Are fines astronomical now? I'm not aware that they are too high."
Actually, I've noticed a fairly dramatic increase in recent years, though admittedly I haven't seen statistics. A speeding ticket used to be about $50; now it's close to $300. I've read that Virginia now has traffic fines over a thousand dollars for routine violations. And I've blogged before about my suspicion that parking meter fines are more about raising revenue than rationing parking spaces. But in any case, I'm more worried about indulging the human impulse to inflict pain.
"we can make imprisonment as unpleasant as we like without increasing the cost - in fact, decreasing the cost. For example, we can simply stop cleaning the bathrooms."
Or not doing anything to stop prison rape -- something else I've blogged about. Prison conditions are, in fact, deplorable in many cases. And I often hear people take the attitude that prisoners deserve to get anally raped and fed maggoty food, etc. I think that's the torture impulse at work.
"So something else is going on, something else is keeping the conditions in the prisons above a certain level."
Yes. I think it might be our culturally ingrained (but still fragile) rejection of torture or conditions that approximate torture.
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