Human penal systems over the millennia have operated on the assumption that people need a set of consequences enforced upon them to sway them from socially undesirable behavior. The implication here is that we would murder, rape, plunder, and pillage in our search for resources, such as sustenance and shelter, if there were no big brother looking over our shoulder. But is this true? Are our individual consciences so wrapped up in the evasion of consequences that we would become bloodthirsty animals without them?
At the beginning stages of society, during the Neolithic Revolution, when agriculture became a chief avenue by which sustenance was obtained, I would say yes. On an evolutionary scale, we were very close to our more animalistic beginnings and society had existed for so little time that it had not really changed us. Fresh from the killing fields of natural selection, these new societies in places like Sumer, Egypt, and Harappa would have regressed to a more warlike state without strong leaders imposing harsh laws. In this way, they served a purpose, and as the slavery these strong leaders and their laws imposed on society competed with those who remained in the more warlike state of nature, the slavery of society won the day and more and more areas were absorbed within its sphere of influence.
It is now eight to ten thousand years since the onset of the Neolithic Revolution and distinctly human society, and much has changed. We have watched local chiefdoms rise and fall on the waves of monarchy and the world be swept in the wake of empires. Monotheistic and revelatory religions have replaced pantheism, and now religion and mythology is breathing its last as science comes to take its place. Over two hundred years ago European style democracy swept the Western world, and now Middle Eastern nations are beginning to carry that same torch. Where once it took eighty days to circumnavigate the globe, it now takes less than forty eight hours, and information travels at the speed of light instead of the speed of a horse and carriage.
So do current day laws and penal systems serve the same purpose as they once did?
In some cases, they do. Though social evolution progresses at a rapid rate, biological evolution does not, and we have to realize that many people are still driven more by the animal impulses inside us all than by the social customs in which we all share. There still exist those who approach interactions with others in a more warlike manner, and only stop themselves from hurting others by virtue of the consequences enforced by our legal apparatus.
However, this is not always the case. These laws and customs which were once enforced by power have come to hold a purpose in and of themselves, what we call “morality.” I will speak on morality in great length in future posts, possibly as footnotes to this post, but, for now, I will merely define it:
“A set of behavioral codes which have become internalized after repeated exposure from external sources.”
Once morality is born within the individual, he no longer follows said behavioral codes for fear of retribution, but rather because he does not want his existence to deviate from his will for that same existence, a will which is, once the codes are internalized, partly shaped by their standard.
So far we have covered two cases of individuals:
1) Those for whom the laws and customs are still external forces which stop them from committing crimes by fear of the consequences should they be caught.
2) Those for whom the laws and customs have become internalized and stop them from committing crimes with or without consequences.
Within a set of laws meant to deter intentionally committed crimes, there is no need for any further qualification between the two groups. The former group will have the consequences of each crime to deter them, and imposed upon them should they still commit the crime and be caught, and the latter group will have their own internal standard to deter them, with or without the external consequences imposed upon them.
But let’s murky the waters a little. First, I would like to look at why any individual fails to internalize laws and customs as a code of morality. The legal apparatus of any society can be viewed as an implicit contract with its constituents. I say “implicit” because none of us were given a choice to sign or not sign any contract with our home country. If we live within its boundaries, we are considered bound by it laws by implication.
Now, societies are formed to better provide for the needs of its people. Long term benefits which require initial investment must be protected; otherwise, we will never be able to rise above the “hunt, kill, eat” mentality. For example, a good many months pass between sowing seeds and harvesting yield. If we existed in a warlike state, as in nature, it would be unlikely that our investments would be protected so long that we could reap the yield, so no one would make the investment. Therefore, we enter into these implicit social contracts as a tradeoff: we must accept the society’s laws and restrictions, but, as a result, we are able to maintain higher standards of living, economically speaking.
But not everyone reaps the same benefits. Inherent to the hierarchical model of society is a measure of income inequality; and, insofar as the total yield of any given society increases, this income inequality grows. So are those on top committing the crimes? I’m sure anyone can come up with examples to answer this question with a “yes” (Enron, anyone?), but, in regard to the more basic of laws (e.g. murder, rape, theft, etc.) the answer is, in general, “no.” These individuals have reaped the most benefit from the social contract, so they have no motivation to break its dictates. Going even further, they have more motivation to see that its dictates are enforced because having them broken would harm them more than other, less affluent, individuals. This is most aptly seen in how Republicans, the party of the rich, are greater proponents of a merciless and unforgiving society than Democrats.
So who commits the most crimes? Statistically speaking, those in a lower socioeconomic class do. The social contract does not provide for them as well, so, other than the consequences faced if caught, they have little motivation to fall in line with its dictates. Is this a good reason for committing crimes? I’ll leave that to your judgment, but the point here is that the social contract does not provide for them; therefore, they never internalize its dictates since they serve to keep them at a lower socioeconomic class.
The second way I would like to murky the waters is by bringing in unintentional crimes. People who are strongly driven by morality, or an internalized set of ethical codes, can still make mistakes that hurt others: people drive drunk, intending to go home, but end up killing someone else; kids play with guns, intending to have fun, but the gun goes off and someone dies. There are a thousand examples I can come up with, and, in each example, the legal apparatus serves to punish them. But, if they had no intention to harm someone, what deterrence is the social contract serving? These individuals, by the assumption given above, have internalized the laws and customs of their society, turning them into a morality. When they make these mistakes and someone is hurt as a result, would not the remorse serve enough as deterrence? Why should they be further punished, thus harming their chances of ever leading a fulfilling life again (e.g. jobs will turn these individuals down due to criminal history)?
At this point, many of you are probably saying, “But Julien, we cannot pick and choose who and how we punish. The law must be the same for everyone.” I could not agree more, but that is not an excuse for lazy thinking. We must have a legal apparatus that can account for everyone and best serve each and every individual, along with the society as a whole. With that in mind, I would like to outline, very briefly and generally, an approach to how we can set up a penal system that better serves the purpose of maintaining a fulfilling society.
When a person commits a first crime, I believe the best response can be captured in a single word: mercy. We, as individuals and members of a society, must begin to recognize that others who have not benefitted as much from the social contract have very good reason to be angry. As long as all societies are structured on a hierarchical model, there will always be those who are barely scraping by, and this economic injustice is inherent to the system. When these individuals, feeling desperate or angry, commit a crime, why should our first inclination be to punish them? Should it not be to help them?
I think yes, we should help them. For any first offense, every person should be made to go through a government sponsored psychological treatment program. While there, they should be evaluated and helped to understand how society works and how they can best use how it works to help themselves. If the individual is deemed to have made this understanding, then, when he is released, a job of sorts should be waiting for him and he should be helped to reintegrate into society so that his crime does not follow him for the rest of his life.
This treatment center approach could also help those who make unintentional mistakes. It could help them understand how high-risk behavior can result in others being hurt by their own actions. They should be nurtured, forgiven, and helped to forgive themselves, and then allowed to go back to their lives, again without any criminal history following them forever.
But what if a person commits the same crime again? What if, after we help nurture and reintegrate these individuals, they continue to break the social contract? Or what if, in the psychological evaluation, it is determined that this person cannot be brought to live according to our social contract? This is where I become a little harsher.
In principle, what these individuals are communicating is that they believe they should not be bound by the social contract. They were given the benefit of the doubt with their initial crime. They were nurtured, forgiven, reintegrated, and given the opportunity to mend their ways without that one mistake hindering their growth. But now, either by committing the crime again or being recalcitrant in the evaluation process, they are showing themselves to be unable to abide by the laws and customs of their society.
I still do not believe in punishment, per se, in these instances. I still want to help them. But what is the nature of that help? Well, if they do not feel they should have to abide by the social contract, we should help them vacate the physical boundaries within which the social contract is in effect. All of these individuals should be shipped off to an uninhabited area of land, one kept for them specifically, and allowed, along with all the others who would not live by the social contract, to build a society of their own with a new social contract of their own making. That way, they are given the opportunity to make a society that better suits them, and the rest of us are allowed to live without anyone who consistently breaks the terms of our social contract.
If any feeling or concept were at the heart of my perspective on the penal system, it would be mercy. People make mistakes. They do stupid things. Furthermore,we must remember that none of us were given the opportunity to opt out of the social contract, and any crime might just be a desperate cry to free one’s self from its dictates. And so mercy and compassion must go hand-in-hand with the legal apparatus; otherwise, society does no more than take the warlike state in nature and deify it within the pages of a dusty book of laws.