Crime, Punishment, and Fairness

Let’s sort out whether it is a good idea for society to punish people for crimes despite the fact that their environments, not their innate selves, caused them to be criminals. This is an important and topical question because the idea that crimes should be punished has come under withering attacks by leftists. Whether those attacks are propitious is relevant to important issues surrounding the recent Florida school shooting.

Note: For a felony to be committed, the perpetrator must have mens rea (a “guilty mind”), “the mental element of a person’s intention to commit a crime or knowledge that one’s action or lack of action would cause a crime to be committed.”[i] Because of this, an act that would otherwise be a crime (e.g., shooting someone) is not a crime if the act was done without mens rea (e.g., it was done in self-defense or by accident).

A core concept of criminal justice systems is that punishing people who intentionally do serious harm to others is advantageous to society. Punishment can be justified by combinations of the following goals: (1) to deter would-be perpetrators from committing future crimes by increasing the costs to them of committing crimes, (2) to reduce the probability that future crimes will be inflicted on innocent members of society by putting bars between the criminal and society, (3) to rehabilitate the criminal into an upright citizen, (4) to establish and preserve the “rule of law” or other propitious norms, (5) to achieve justice, and (6) to obtain warranted vengeance.

An exception to the general rule is that it should not apply to children and the insane. A widely accepted rationale for this exception is described in the McNaughton rule, “that every man is to be presumed to be sane, and . . . that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”

First note that if a person does not have the mental capacity to know the difference between right and wrong, she is not capable of having the mens rea to commit a crime. Also important, it would serve no more purpose to punish a lion for killing an antelope than it would to punish an insane person for committing a crime. Neither can comprehend either the crime or the punishment, and punishing either would have no effect on other lions or insane people, i.e., it would accomplish nothing.

For multiple reasons, the insanity defense against criminal punishment is long established, venerated, and wise.

Leftists have been inventing and advancing many other new defenses to criminality that have not been time tested, are of dubious validity, and need to be sorted out. As is usual for leftist ideas, they myopically focus on something they (often correctly) identify as a problem, with apparent obliviousness to the serious and unavoidable negative consequences of the proposed “fix” for the problem. The problem with this approach to problem solving was perhaps best described by the great Thomas Sowell, who said:

The ideal of impartiality in the law, exemplified by the statues of Justice blindfolded, implies that particular results for particular individuals and groups are to be disregarded when dispensing justice. It is precisely this conception of justice—at the heart of the American revolution—that is being disregarded. As was aptly said:

The blindfolded Goddess of Justice has been encouraged to peek and she now says, with the jurists of the ancient regime, “First tell me who you are and then I’ll tell you what your rights are.” [Citation omitted.]

In politics, the great non-sequitur of our time is that 1) things are not right and that 2) the government should make them right.[ii]

Just because something is not right, it does not mean that there is an action the government could take to ameliorate the problem without creating even greater problems elsewhere. The constant demands by leftists for politicians to “DO SOMETHING!” cause politicians constantly to do things that cause more harm than good.

Out of valid and genuine concern for the harm “the system” does to people who get caught up in the criminal justice system, many leftists now demand that politicians ignore criminality if the perpetrator’s intent is not attributable to her innate evil, but rather to the bad environment in which the otherwise good person found herself through no fault of her own. It is as if it were the environment that caused the mens rea of the crime, not the person. That could well be true in some instances (at least to the extent that a person might never have considered committing a crime had they been born with more advantages). The disadvantages of being born into a bad situation are certainly unfair in some cosmic sense. By the same token, it is certainly unfair in some cosmic sense that some people are born good-looking, intelligent, physically fit, and coordinated; with leadership ability, creativity, and insight; and with good communication and people skills. While some people have a good measure of all those things, others have little of any of them. There is clearly something wrong with this picture, but it is a true picture of reality. But, again, the fact that there is a real problem does not mean there are solutions to it that will not also make matters worse for everyone, with the possible exception of the criminal.

In particular, there is no reason to believe that any governmental effort to “fix” those kinds of cosmic injustices would not do more harm to the vast majority of people in the world than if the U.S. government did nothing about them.[iii]


SidebarYet leftists quixotically forged ahead with supposed fixes to these cosmic injustices. The basic rationale appears to be a jumbled combination of (1) It is unfair to punish someone who did something evil only because she a victim of an environment that “made her do it,” and (2) To punish someone upon whom the cosmos has bestowed great disadvantages is adding insult to injury, and is unfair.

The arguments advanced to “fix” the problems did not win the day in the court of popular opinion. In no small part that was because the people who would suffer the negative consequences of the supposed fixes felt no responsibility for the environment disadvantaged people found themselves in. So leftists resorted to dreaming up theories and accumulating plausible “facts” to support propositions that recharacterize cosmic injustice into something inflicted on “the oppressed” not by the cosmos, but rather by current-day “oppressors,” such as “the patriarchy,” the “white privilege” of privileged white people, the “systemic racism” of a system of the privileged, by the privileged, and for the privileged (which is everyone other than the oppressed), and many similar figments of their imagination.

Rather than contest all that here, let’s accept the premise that much crime is not the fault of the criminal (it is the fault of the environment in which the criminal happens to reside or the fault of oppressors) and sort out its policy implications. The policy implications leftists typically draw from that premise are:

  1. Add more obstacles, tripwires, and safeguards to judicial processes that make prosecutions more difficult and reduce the odds that a criminal will be convicted for her crimes (e.g., Miranda warnings, or expansion of the exclusionary rule that prevent juries from hearing all the relevant facts of a case);
  2. Decriminalize more and more erstwhile criminal behaviors;
  3. Protect criminals from being caught (sanctuary cities); and
  4. Do not report crimes (except for the ones “non-oppressed” people are more apt to commit) so as to make it appear that the leftist policies are reducing crime by and on “oppressed” people.

In addition to ignoring their unintended negative consequences on society at large, these policies ignore the harm they do to the people they are ostensibly trying to help. The irony is that the whole policy agenda is predicated on the idea that it is the environment that is the root of the problem. One might think that leftists would want to improve the environment of disadvantaged communities in ways that would cause people in those communities to be less disadvantaged (“oppressed”). Anyone who thinks that needs to think again. Improving the environments of disadvantaged communities is not what social (cosmic) justice warrior policies do; they make the environment in disadvantaged communities worse.

Peer pressure has a huge influence on most school students. The more bad attitudes and behaviors are tolerated in schools, the larger the number and higher percentages of peers who are criminals there will be in schools. That means more people exerting pressure to adopt self-defeating ideas and attitudes on all the students. Worse, if the positive consequences of committing crimes are greater than the negative consequences, the incentives to commit crimes are strong. Even worse, in such an environment it can appear to impressionable youths that they are suckers if they do not cash in on the benefits of crime, given the slight negative consequences of committing crimes. General disrespect for authority and lawlessness makes more difficult the education of student on the benefits of good morals. In the presence of excess tolerance of bad behavior in a school environment, students will likely view the lessons about good behavior as preposterous. If there is easy gain with crime, but only hard work, harassment, and a slim hope of payoff if one is good and applies oneself to studying, easy gain will win most of the time.

Such lawlessness spills out into the streets and results in far more people being killed in disadvantaged neighborhoods than in school shooting anywhere. The percentage of lives that do not thrive as a result of the environment that leftist policies create is also staggering.

It is truly sad that when the criminal laws are enforced that so many already disadvantaged students find themselves in the “school-to-prison pipeline.” It is even sadder that the percentage of those students who are black and Hispanic is disproportionately high. Sadder still is the fact that leaving those kids in school will make the proportion of black and Hispanic children entering that pipeline, or adopting ideas and attitudes that will prevent them from flourishing, or wounded or killed at school, much higher than it otherwise would be.

This post and my earlier post, “Prelude To A  Post About The  Florida Shooting – A Growing Leftist Trend,” have laid the groundwork for a case in point that will be explored in my next post about the Florida school shooting.

[i] See “Mens rea.”

[ii] See “The Quest for Cosmic Justice,” page 186.

[iii] See “Harrison Bergeron” by Kurt Vonnegut; the movie, Harrison Bergeron; or a condensed version, “2081 HARRISON BERGERON,” a video by an organization I helped make possible.

Leave a Reply