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- Path: sparky!uunet!olivea!spool.mu.edu!darwin.sura.net!paladin.american.edu!auvm!BROWNVM.BITNET!PL436000
- From: PL436000@BROWNVM.BITNET (Jaie)
- Newsgroups: bit.listserv.politics
- Subject: intent and punishment
- Message-ID: <POLITICS%92122811053173@OHSTVMA.ACS.OHIO-STATE.EDU>
- Date: 28 Dec 92 15:30:40 GMT
- Sender: Forum for the Discussion of Politics <POLITICS@UCF1VM.BITNET>
- Lines: 73
- Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU
-
- From: Andy Freeman <andy@SAIL.STANFORD.EDU>
-
- >Suppose our goal is to reduce the occurrence of harmful acts. That
- >provides a basis for distinguishing first time "I tried to do that"
- >and "oops, I didn't mean to do it"; that basis is that it's probably
- >easier to adjust the behavior of the latter person than that of the
- >former. (After someone has said "oops" a number of times, we
- >obviously need more effective measures such as those we use for "I
- >tried to do it".) If it turns out that it's actually easier to change
- >the behavior of "I wanted to kill her" than "oops", then the "oops"
- >people get the serious hosing (to the extent that serious hosing
- >works).
-
- >This "reduce harm" goal does not, by itself, distinguish "I did it
- >because I like to see people suffer", "I did it because I don't like
- >that kind of person", and "I did it because they wouldn't hand me
- >money". We might know something else about people who fall into
- >those categories along the lines of "It's easier to convince robbers
- >to leave people alone than it is to convince Nazis". That info
- >together with our "reduce harm" goal would justify different
- >penalties, but if we found that Nazis were easier to convince than
- >robbers ....
-
- I think I understand Andy's general strategy here, but not the
- specifics.
-
- His claim seems to be this. We should assess LIGHTER penalties
- against those who are "easier to convince." That's a bit
- unclear to me. Suppose the HARDEST people to convince are
- those who commit violent crimes in the heat of the moment.
- Such people just don't calculate the costs in advance.
- It doesn't make much sense to threaten such people with
- stiffer penalties. Stiffer penalties won't deter them.
-
- The people we can deter are those who make rational, calculated
- decisions. We should, according to the "prevent harm" theory,
- punish them more severely. In many cases, we do. We punish
- premeditated murder more severely than "heat of passion" murder.
- But we do not punish criminally negligent homicide more severely
- than unpremeditated murder, even though the former is likely
- to involve more calculation, and be more "deterrable" than the
- latter.
-
- Similarly, I think, for rape. Mens rea is not well-explained
- by rational deterrence theory.
-
- >We could have other goals. We could punish people because they
- >disgust us, and a robber isn't as disgusting as a Nazi. However, if
- >we do that, there's no particularly good reason for waiting for said
- >Nazi to do something "wrong" - we've got a basis for hosing them just
- >because they're a Nazi.
-
- Here's what I think is a very large part of our determination
- of punishment of violent crimes. We think that hurting someone
- intentionally is per se worse than hurting them (in the same
- external way) unintentionally. Our goal (I don't mind calling
- it a "goal" though there might be some other better word for
- it) is to assess a more stringent punishment against those
- who do things that are worse. Deterrence is part of it, but
- not all of the story.
-
- (This is sort of ironic, I think. During the most recent
- on-list discussion of capital punishment, *I* was more or
- less insisting on a deterrence justification for punishments,
- and Andy was suggesting a different account.)
-
- In any case, it may well be the case that racially motivated
- crimes are deterrable by more severe threats. As Andy says,
- we need more evidence. But on the face of it, gathering
- evidence and deciding which kinds of deterrence works is
- a job for state legislatures, not for the Supreme Court.
-
- Jamie
-