Should punishment be about retribution or deterrence?

One of the things I found particularly interesting in ‘Who’s in Charge?’ by Michael Gazzaniga, is experimental evidence suggesting that people who believe they have free will tend to be better behaved than those who believe in determinism. People who don’t believe they have free will are apparently less likely to control their impulses to act selfishly or aggressively. This might be an instance where a little knowledge can be a dangerous thing.

The main point made by Gazzaniga – who is referred to as the father of cognitive neuroscience – is that individual responsibility is a dimension of life that cannot be illuminated by analysing single brains in isolation. In isolation, single brains seem to be governed by unconscious intentions – awareness comes after the event. Individual responsibility comes from social exchange. If we want to understand how individuals are responsible for their actions we need to look at the whole picture of a brain interacting with other brains.

Readers who are interested in a general overview of the book should read the review by Benedict Carey in the NYT.

Gazzaniga discusses the question of whether punishment should be retributive or utilitarian near the end of his book. Retributive justice is concerned primarily with giving criminals the punishment they deserve – the crucial variable is the degree of moral outrage the crime engenders. Utilitarian justice is concerned primarily with the future good of society. The author suggests that means it is concerned with deterrence, incapacitation (e.g. jailing criminals to prevent them from re-offending) and rehabilitation.

The interesting point is that although many people label themselves deterrists rather than retributivists, when it comes to actually handing out punishments self-labelling counts for little – people have a strong tendency to behave as retributivists. Irrespective of what they say, they tend to punish for harm done even when there is little likelihood that the person will re-offend in future.

Gazzaniga suggests that retributive justice has deep moral foundations in human evolution. We can use abstract consequentialist thinking when faced with abstract questions of public policy, but we resort to fairness judgements when faced with an individual who is to be punished.

For example, should harsh sentences be applied to minor offences to increase the deterrence effect? If you think about it in abstract terms, sending a person to prison for a relatively minor first offence (e.g. low range drink driving) might seem likely to increase the sum total of human happiness by deterring others from an anti-social behaviour that endangers human life. But would it be fair to hand out punishments that are disproportionate to the additional risks involved in particular instances?

Consider a more extreme example. Should judges make an example of celebrities by giving them greater punishment for minor offences? Since the punishment of celebrities would receive greater publicity it could be expected to have a greater deterrent effect, but in my view it would still be unfair.

Does utilitarianism necessarily imply that it is OK to impose unfair sacrifices on individuals for the future good of society? No. Some people who subscribe to utilitarianism, as a theory of normative ethics which views human happiness as the fundamental value judgement or ultimate criterion, consider the best test of actions or rules of action to be the extent to which they promote social cooperation. For example, Henry Hazlitt argued that ‘for each of us social cooperation is the great means of attaining nearly all our ends’. He noted that social cooperation ‘has the great advantage that no unanimity with regard to value judgements is required to make it work’. It enables the disparate goals of different individuals to be reconciled and harmonized. (‘The Foundations of Morality’: 35-36).

Leland Yeager has argued:

‘Regardless of just what plausible interpretation we give to happiness, social cooperation is prerequisite to its effective pursuit. Lying, cheating, and stealing subvert happiness because they subvert the prerequisite cooperation. Telling the truth, keeping promises, and respecting other people’s rights and property are conducive to cooperation. We come to believe propositions like these through factual and logical analysis of what conditions help individuals pursue their own diverse goals effectively’ (‘Ethics as Social Science’, 2001: 83).

Yeager also makes the point:

‘Emphasis on voluntary cooperation warns against imposing unfair sacrifices on individuals for the supposed greater good of a greater number’ (p. 82).

This line of reasoning suggests to me that if social cooperation is the objective we should be seeking retribution i.e. giving criminals the punishment that they deserve – even if we are sufficiently civilized not to seek pleasure from their suffering.

Michael Gazzaniga comes to a similar conclusion in looking at the issue from an evolutionary perspective. He suggests that humans have evolved to cooperate on a massive scale with unrelated others partly by punishing noncooperators. He leaves us to ponder: ‘If we don’t incapacitate the offenders, will the noncooperators take over and society fall apart?’

Postscript:
I was aware that I was being provocative in coming out in favour of retribution, when the point I was really trying to make is that justice should be primarily about fairness rather than deterrence. (As I acknowledge in response to a comment from kvd, however, there is an element of deterrence involved in fair punishment.) Retribution may mean giving people fair punishment but it can be mistaken for vengeance. Jim Belshaw had an interesting post yesterday about vengeance - which I largely agree with.

Comments from TBT (below) prompt me to acknowledge that I hope that evolution in public perceptions of fairness might enable able us to move further towards some kind of restorative system of justice. 

Can democracy protect liberty?

In January 2011 I wrote on this blog about my personal conviction that liberty is necessary to human flourishing because individual flourishing is an inherently self-directed process. That led me to ask where the greatest challenge to liberty comes from. I came to the conclusion that the greatest challenge to liberty comes from people who do not mean anyone any harm – people who live among us who want us all to have happier lives. These people threaten liberty because they use their democratic rights to support policies that involve governments acting as guardians of the well-being of citizens – even to the point of protecting individuals from making bad choices - rather than for protecting their right to live as they choose. I saw the political choices my fellow citizens were making as a threat to liberty.

Now, wind the clock forward to the beginning of this month, when I asked myself: ‘What is the greatest threat to human flourishing?’ My answer: the failure of democracy. In my view the greatest threat that people in high-income countries face over the next few decades is that democratic governments will not be able to cope with the increasing demands that seem likely to be placed upon them. In my view this would have adverse flow-on implications for human flourishing in other countries.

If I see current trends in democracies as a threat to liberty, why should I see risks to democracy as a threat to human flourishing?

When you start asking yourself questions like that it is probably time to read Robert Higgs’ new book, ‘Delusions of Power’ (synopsis here). Higgs encourages people to go back to first principles in thinking about the role of government. 

Here are some of the important points he makes:

• James Madison’s famous passage about neither government, nor external or internal controls on government, being necessary ‘if men were angels’ is an enormously seductive instance of question begging. Recognition of human fallibility does not establish that individuals would voluntarily choose to submit to the authority of the state rather than to remain in a stateless condition.
• Mancur Olson’s claim (in ‘Power and Prosperity’) that anarchy ‘increases the incentive to steal and to defend against theft, and thereby reduces the incentive to produce’ could be true relative to the ‘nirvana’ benchmark of ‘an appropriate peaceful order’. In the real world, however, there may actually be less incentive for productive effort under a state, because, to use Higgs’ words, it is ‘a standing invitation to (legal) theft for all who can gain a grip on any of its many levers of power’.
• The evidence of history shows that the belief that it is the role of the state to defend the individual’s right to life, liberty and property is closer to wishful thinking than a description of how states have actually functioned.
• Some major political decisions in the United States – such as involvement in the First World War and the expansion of federal government responsibilities during the great depression – were contrary to the political platforms of the presidents concerned in the preceding elections.
• During war times and other crises, governments are given strong public support to impose many restrictions on freedom that would not be tolerated during normal times. Having tolerated them, however, many people may come to regard them as normal or even desirable. This is the basis for a ratchet phenomenon where expansion of government during a crisis has not been fully reversed following a crisis.

It seems likely that some stateless societies that have existed in the past were relatively good places to live – that is, relative to other societies at the same time. So, why didn’t those relatively good societies thrive and evolve into libertarian utopias? The most obvious answer is that these societies were not able to survive invasion by neighbouring states, led by people like Henry VIII. Higgs acknowledges the point:

‘We also need to consider the likely outcome if our society has no state, but another society does, and that state has the capacity to harm us greatly and, for whatever reason, seeks to do so. I am not convinced that this particular problem is insoluble, and, indeed, I believe that the states defenders have blown it out of all proportion, but I do not dismiss it entirely’.

If I try hard enough I can imagine circumstances where coercion by the state might wither away so that, eventually, somewhere in the world, citizens will one day opt to establish some kind of libertarian utopia to replace democratic institutions. Perhaps experiments with charter cities might help this process. It would be possible, even in a modern society, for the useful functions of government to be performed by private contractors and voluntary organizations. I don’t know how such a society would overcome free-rider problems arising from provision of some public goods, but coercion associated with tax collection might not be an essential characteristic of all societies for all time to come.

So, why do I see the failure of democracy as a threat to human flourishing? The failure of democracy that I am concerned about seems unlikely to result in its replacement by superior institutions. In many instances, the institutions of representative government may actually remain in place, but they will have become completely meaningless. We can already see some signs of this failure beginning to emerge. Some political leaders seek to win popular support by using focus groups to help them develop nice-sounding but meaningless slogans, rather than seeking to gain support for policies to underpin future economic security. Governments that have already taken on more responsibilities than they can cope with are constantly pressured to accept additional responsibilities. The right to vote has already become hollow in some countries in Europe. It is difficult for voters to punish political parties for past errors when the major parties all share responsibility. All options available to voters become unpalatable when democratic governments are burdened by excessive debt.

In some countries the institutions of democracy are likely to come under threat as a result of rioting and other forms of public disorder. Democratic governments may be replaced by authoritarian regimes that have less regard to economic security or citizen’s rights. It is possible that members of such governments might have a greater interest in restoring economic freedom and expanding opportunities available to citizens than in self-enrichment, but there is no a priori reason to expect that to be so. The only certainty is that the new leaders will be more difficult to remove from office than democratically elected politicians.

In the end, it seems to me that there is no inconsistency between viewing recent trends in democracy as a threat to liberty and viewing the increasing risks to democracy as a threat to human flourishing. Some of the institutional changes that are needed to discourage democratic governments from taking on more responsibilities than they can cope with will also reduce the threat to liberty. I think Robert Higgs is on the right track in suggesting the need for changes in the machinery of government to make it more difficult for ill-considered and poorly justified measures to be adopted during a crisis. It would also be useful to consider what institutional changes might enable some future crises to be avoided. Perhaps democracy could protect liberty.

Can democracies adapt?

While reading Tim Harford’s book, ‘Adapt’, I was thinking about the implications for democracy of the theme running through the book. I have been thinking a lot about democracy recently.

The theme is what Harford refers to as Palchinsky’s principles:

1. Variation: seek out new ideas and experiment.
2. Survivability: ensure that the scale of experiments is not so big that failure leads to catastrophe.
3. Selection: seek feedback and learn from failures.

The theme is also captured fairly well by the books sub-title: ‘Why success always starts with failure’.

Peter Palchinsky was a talented engineer in the Soviet Union. He was arrested by the secret police in 1928 and never seen again. His main ‘crime’ seems to have been that he refused to recant after he had been denounced for objecting to looming technological disasters.

Harford applies Palchinsky’s principles to a wide range of things, including the management of the war in Iraq by the US miltary, the events leading to the design of the Spitfire in England prior to World War 2, provision of foreign aid, climate change mitigation, financial meltdowns, corporate strategy and self-management.

One of the points that came through strongly to me is that even hierarchical military organizations need to learn strategy from their experiences in the field. I knew that was true of big business organizations, but I had not previously thought of armies as having to experiment in order to find the best approach to adopt in different conflicts. It seems that senior people in the US military were not aware of that either during much of their occupation of Iraq.

Harford’s discussion of the global financial crisis seems sensible. He suggests that the failure of experiments with sub-prime mortgages would not have led to a major financial crisis in the absence of tight coupling in financial markets via credit default swaps. These appeared to provide the banks with a greater margin of safety, but actually linked their fortunes closely to insurance companies. As a consequence, the sub-prime mortgage problem was transmitted from insurance companies to banks (and then to governments). The solution is obvious with hindsight - decouple the system so that banks are less likely to fail and the failure of individual banks does not lead to system failure. I would add that governments should adopt a ‘no bailouts’ policy and back that up with a requirement for banks to guarantee immediate and automatic transfer of ownership of all assets to depositors and bond holders if they (the banks) are unable to meet their interest or repayment obligations.

The points about self-management were not new to me. But it didn’t hurt to be reminded of the importance of trying new things in a context where failure is survivable - and of being prepared to learn from failure. It helps to remember that the failure of our experiments does not necessarily reflect on our competence unless we fail to learn from them.

The closest Tim Harford comes to discussing democracy in this book is his discussion of charter cities. In his version, governments establish the rules of a new city as an experiment to see if citizens and business want to live there.  If the experiment succeeds it can be repeated elsewhere. If it fails, that failure is survivable.

 

In reading Tim Harford’s book I was reminded of a claim by Timothy Ferris:

‘A liberal democracy in action is an endlessly changing mosaic of experiments, most of which partially or entirely fail’ .

The claim is made in his book, ‘The Science of Liberty’ (2010). In my discussion I suggested that Ferris’ view of liberal democracy, as akin to scientific experimentation, was a desirable ideal rather than a description of how democratic systems actually work. I suggested that elections seemed to be a reasonably effective way for citizens to avoid being governed by despots, to get rid of politicians who are obviously corrupt and to experiment with new policies. However, democracy departs from the scientific ideal because the democratic process is not good at ending policy experiments that partially fail. The most radical reforms rarely involve more than a tweaking of failing policy experiments.

If we look at democracy in terms of Palchinsky’s principles there are problems all over the place. There are at least two problems relating to willingness to experiment. First, there is often a strong bias in favour of the status quo because of loss aversion. If there is potential for any politically influential group to be disadvantaged by a policy experiment then it is unlikely to be conducted.  Second, there is often a reluctance to conduct experiments unless they involve the whole of a jurisdiction - questions of fairness are often perceived to be involved.

There are problems relating to survivability. Social experiments are often entered into by governments without adequate consideration of longer term implications for system survival. For example, welfare assistance that is granted when it seems to be affordable is often difficult to withdraw when economic circumstances change for the worse. Some European democracies are currently faced with survivability problems as a result of excessively ambitious social experimentation in the past.

There are also problems in seeking feedback and learning from failures. As noted above, the democratic process is not good at ending policy experiments that partially fail. This reflects two problems. First, governments are often reluctant to accept policy failure because it may have electoral consequences. Second, those who benefit from failing policy experiments are reluctant to see them end and often have the political clout to prevent this from happening.

So, can democracies learn to adapt? We have natural experiments that help us to answer that question. The older democracies have so far shown a capacity to adapt. They have been able to learn from some of their mistakes by adopting institutional innovations to improve the effectiveness of government and, to a lesser extent, to contain the growth of government responsibilities.

There is also potential for the democracies to learn from the success and mistakes of other democracies. For example, there is probably a lot to be learned from the modern experience of democracy in Greece, as well as from ancient history. A recent article by Steve Horwitz makes the point very well.

The idea of learning from the mistakes of others has more general relevance. It might even be worth adding to Palchinsky’s principles. However, it is probably harder to learn from mistakes made by others than to learn from your own mistakes. When my father told me that I should learn from his mistakes, as he often did, my response was that it would be much more fun to make my own mistakes. Looking back now, though, I don’t think my father actually made many mistakes that I could learn from.

What implications does 'monitory democracy' have for the survival of democratic institutions?

I ended my last post promising to consider whether John Keane’s observation that we now have ‘monitory democracy’ has implications for the relationship between the responsibilities and effectiveness of government, and hence the survival of democratic institutions. Can monitory democracy be expected to move political systems towards or away from equilibrium between effectiveness of government and the responsibilities that government is expected to perform?

First, who is Keane and what does he mean by ‘monitory democracy’? John Keane is professor of politics at Sydney university and author of a major history of democracy, ‘The Life and Death of Democracy’ (2009), a book over 1,000 pages described by one reviewer as not ‘for the faint hearted’. (Unfortunately, I can’t claim to have read it.) In an article in the Griffith Review, Keane argues that from the middle of the 20^th Century representative democracy began to transform into monitory democracy – a new historical form described by ‘the rapid growth of many different kinds of extra-parliamentary, power-scrutinising mechanisms’.

Keane’s list of power-scrutinising mechanisms includes: advisory boards, focus groups, citizen juries, talk shows, think tanks, consensus conferences, teach‐ins, online petitions and chat rooms, public vigils, straw polls, summits, public planning exercises, public consultations, social forums and, of course, weblogs. About the only thing these inventions have in common is that they change the incentives faced by politicians and political parties. Keane suggests:

‘The central grip of elections, political parties and parliaments on the lives of citizens is weakening. Democracy is coming to mean more than elections, although nothing less. Within and outside states, independent monitors of power begin to have tangible effects. By putting politicians, parties and elected governments permanently on their toes, they complicate their lives, question their authority and force them to change their agendas …’

Monitory democracy is closely linked to the emergence of new communications media. In Keane’s terms, ‘monitory democracy and computerised media networks behave as if they are conjoined twins’. He observes:

‘The combination of monitory democracy and communicative abundance … produces permanent flux, an unending restlessness driven by complex combinations of different interacting players and institutions, permanently pushing and pulling, heaving and straining, sometimes working together, at other times in opposition to one another’.

In considering what implications monitory democracy might have for the survival of democratic institutions it seems to me to be worth recalling Joseph Schumpeter’s view, discussed here recently, that democracy is essentially a leadership contest in which the role of citizens ends after they have cast their votes.  The reality of democracy, as described by Keane, is light years away from Schumpeter’s view that democracy can only succeed if voters refrain from trying to tell politicians what to do after they have been elected.

How does monitory democracy actually impact on the balance between the responsibilities and effectiveness of governments?

Some of Keane’s comments suggest that monitory mechanisms might have a positive impact on the effectiveness of government. He points out that, ‘when they do their job well, monitory mechanisms have many positive effects, ranging from greater openness and justice within markets and blowing the whistle on foolish government decisions to the general enrichment of public deliberation and the empowerment of citizens and their chosen representatives through meaningful schemes of participation’. On the other hand, he suggests that nobody ‘should be kidded into thinking that the world of monitory democracy … is a level playing field – a paradise of equality of opportunity among all its citizens and their elected and unelected representatives’.

The combination of monitory democracy and communicative abundance is also likely to impact on voter rationality and the incentives for the major political parties to develop coherent policies to sell to the electorate. There is still a strong incentive for politicians to have regard to particular interests of voters, but it seems to me that their incentive to appeal to the reasoning powers of uncommitted voters may be diminishing. As Keane seems to imply, the new political environment may be discouraging uncommitted voters from taking an intelligent interest in policy issues:

‘Monitory democracy certainly feeds upon communicative abundance, but one of its more perverse effects is to encourage individuals to escape the great complexity of the world by sticking their heads, like ostriches, into the sands of wilful ignorance, or to float cynically upon the swirling tides and waves and eddies of fashion – to change their minds, to speak and act flippantly, to embrace or even celebrate opposites, to bid farewell to veracity, to slip into the arms of what some carefully call “bullshit”.’

This does not provide strong grounds for confidence that monitory democracy improves the effectiveness of government.

How does monitory democracy impact on the scope of responsibilities that governments are expected to perform? The discussion in a recent post about voter irrationality seems highly relevant. There is evidence that voters who say that politics is ‘not at all important’ to them are more likely than others to say that ‘the government should take more responsibility to ensure that everyone is provided for’.

On that basis, monitory democracy could be expected to thrust more responsibilities on governments than they can cope with effectively. This raises serious questions about the ability of democratic institutions to survive.

However, as more people perceive that existential threats are facing democratic institutions they might form new interest groups to foster norms of behaviour that might enable better outcomes to be achieved. Under favourable conditions monitory democracy might prove to be a system with self-correcting characteristics. If influential interest groups can form around the survival of some threatened species of animals, is it not reasonable to expect that stronger and more influential interest groups might form when social institutions that make a valued contribution to human well-being are seen to be threatened? 

Postscript:
I would like to draw attention to relevant comments by kvd and Jim Belshaw on Jim's blog. Jim now also has another relevant post: What would you nominate as the most asinine slogan?

In his comments below kvd has drawn attention to an article by Michael Pascoe entitled, 'Timid Governments Bow to Populism', SMH (9/7/2012). That article is well worth reading, as is the article by Thomas Friedman entitled 'The Rise of Popularism' NYT (23/6/2012) which is referred to by Pascoe. Please note the word used by Friedman is 'popularism'. It was only when my spell-checker objected that I understood why Friedman wrote: 'I heard a new word in London last week: “Popularism”.'

Neil Whitford is not faint hearted. He has read and reviewed 'The Life and Death of Democracy'.