"Fiat justitia, ruat caelum."
In a previous post, I criticized the Conservative government's Bill C-10, the omnibus crime bill sold as "getting tough on crime". I find it astonishing that there is any support at all for this, given how well we know that it won't work, from the examples of Texas and California, which are both regretting adopting similarly "tough" approaches. I'm also amazed at the continued push for "abstinence-only" sex education in certain U.S. states, despite the well-documented consequences of higher teenage pregnancy and STD rates. I just naturally assumed that we all believed that rates of crime, teenage pregnancy and STDs were things we'd want to keep as low as possible. So how can people continue to support such demonstrably ineffective policies with such enthusiasm?
For a while I just assumed that they didn't understand the problem, and genuinely held to the simplistic belief that these policies would work. To some extent, of course, that is the case; I have heard people argue with great sincerity that tougher penalties are sure to deter crime more effectively, and it's certainly true that abstinence is terribly effective at preventing pregnancy (even if preaching abstinence to teens isn't actually the best way to get them to practice it).
But lately I've begun to wonder if maybe there isn't something else at play here. One thing I have noticed is that many of the people who advocate these policies tend to be very concerned about sin. They speak in terms of justice, and seem to find it profoundly disturbing that a wrongdoer might get away without appropriate punishment. Which brings me to the legal maxim quoted above: "Let justice be done, though the heavens fall."
The maxim is perhaps most famous for its use in 1772 by Lord Mansfield in Somersett's Case, in which slavery was found to be illegal in England and Wales. Several thousand slaves were in the country at the time, many (like James Somersett himself) accompanying their masters from the American colonies, and Lord Mansfield was urged to consider the mayhem that would ensue from a judgment suddenly and radically changing the legal status of these thousands of slaves. Quite rightly, the judge considered those consequences to be irrelevant; slavery is an unlawful injustice, and cannot be perpetuated just to avoid inconvenience.
And so it is a noble sentiment, that we should be willing to endure great cost and inconvenience to see to it that justice is finally done. We tend to admire as a hero Inigo Montoya for devoting his life to avenging his father's murder by the six-fingered man, enduring great hardship and sacrifice to bring a killer to justice.
So I begin to think that perhaps some of those who favor moralistic policies like Bill C-10, abstinence-only education, and many other clearly ineffective but simple approaches, aren't actually concerned with results. What matters to them more is being morally righteous, and if the cost of harshly punished criminals is more crime, well, so be it; we'll just punish them harshly, too. It's almost as if it crime doesn't matter so long as it's "paid for" (and such people very often do speak of "making criminals pay", another unfortunate memetic pathology). If the cost of righteously teaching teenagers to wait until they're married before having sex is that, unfortunately, more of them won't wait, well, too bad; at least we haven't polluted ourselves by implying that premarital sex is okay.
The trouble with this attitude is that, in the big picture (which is what policymakers are supposed to be considering), it ends up being paradoxically inconsistent with itself. On an individual case basis, we might well praise the diligent prosecutor who spares no expense to bring a particularly nasty wrongdoer to justice. From the perspective of the system as a whole, however, cost-effectiveness needs to be considered; spending the department's entire budget to imprison a single criminal means there are no resources left to go after all the others. At this level, the decision to focus on one criminal is also a decision to let all the others go unpunished.
It gets worse. The decision to spend a disproportionate amount of resources on punishing a few criminals means fewer resources available to spend on crime prevention. Indeed, for many offenders, we know that rehabilitative programs through conditional sentences have a much better success rate at reducing recidivism than prison terms do; living in prison with hardened criminals is like going to crime school. So an excessive focus on punishment actually leads to higher repeat offender rates.
Think about what that means. The policymaker who decides to implement a criminal justice system emphasizing punishment is creating a situation in which more crimes are committed than would be under an alternative system. There are people victimized by crime who would not have been so victimized, but for the decision of the policymaker. In other words, the policymaker has chosen a higher crime rate. An argument could be made that the conscious choice to have a higher crime rate makes the policymaker himself morally culpable for that rise in crime. And as one advocating for harsh punishment and against forgiveness, he'd really have little right to expect leniency himself.
I don't think I'd want to go quite that far. The decision to implement a policy is not the same as the decision to commit an individual crime, and ought not to be assessed on the same moral scale. At the policy level, there will always be individual crimes or other unwanted consequences that follow from a particular policy that might not have followed from a different policy (which would have its own unique unwanted consequences). It's a question of balancing, deciding which policy produces the fewest and lease severe unwanted consequences.
But in a democracy, it's also a question for us, the people, when we go to the polls. Do we want to be safer from crime, or are we so eager to see criminals punished that we're willing to bear a higher risk of being victimized by crime ourselves?
I can't imagine how we could sensibly choose the latter. Criminals simply do not "pay for their crimes" by being punished. No amount of suffering inflicted upon a criminal can ever make whole the victim of his crimes, and so the victims of crimes are always worse off than they would have been had the crime never been committed. (Oddly, that's as it should be; we really wouldn't want a world in which people actively sought to be victimized by criminals.) The best thing policymakers can do for victims is ensure they never become victims in the first place.