When the Punishment Does Not Fit the Crime

by Anonymous

Do many capitalist societies today impose relatively harsher punishments for crimes committed by individuals of low socioeconomic status? If so, how does this fact affect popular theories of just punishment?

It would seem that many of these theories (such as retribution, deterrence and rehabilitation) must fail when applied to these societies. That this really is the case can be illustrated with a simple example:

Two individuals commit the exact same crime in the same American city: they both crash into parked cars while driving under the influence of alcohol. Both of these crimes result in the exact same amount of damage, the levels of intoxication are the same between the two offenders, and this is the first offense committed by either person. 

However, one of these individuals is a high-powered businessman and the other is a middle-aged, relatively poor single woman with no living relatives and two young children. Both individuals are arrested and brought to the police station where they are put in jail with bail set at $5,000. The man immediately bails himself out and hires a team of experienced defense attorneys. 

The single mother, on the other hand, is too poor to post bail herself and knows no one who could help her. Because she is forced to sit in jail for the weeks preceding her trial, she loses both of her jobs which had been the only sources of income for her family. When the trials roll around, the man’s attorneys convince the judge and jury that he should not be held responsible for his action, and he is given only a fine. However, the publicly-appointed defense attorney for the woman, perhaps too over-worked to have been able to consider her case carefully, fails to offer any convincing defense on her behalf. She is sentenced to three years in prison.

I think it should be clear that in this case, the theory of retribution fails to offer a legitimate justification of punishment. Because the offenders in the story are given extremely different punishments for the same crime, at least one (or both) has been given a punishment that, morally speaking, breaks from the jus talionis, or “eye for an eye” principle and thus does not serve any kind of true retribution. In this case it is likely that both punishments would be considered morally inappropriate. One on hand, the woman in the example is punished before she is even found guilty of a crime by being forced to stay in jail as a result of her inability to post bail. On the other, the wealthy man is given a more lenient punishment only because of the resources to which he has access.

How about deterrence? Jeremy Bentham asserts that “General prevention ought to be the chief end of punishment, as it is its real justification.” Turning back to the example offered above, it becomes clear how Bentham’s deterrence model fails to justify punishments in capitalist societies in which punishments are functions of economic class. The man’s punishment in the hypothetical case would challenge Bentham’s idea that punishments should prevent future crimes from being committed because it would surely allow other wealthy people in the society to think that as long as they can hire expensive attorneys, they will be able to behave recklessly without much consequence. On the whole, a deterrence theory of punishment would not be able to explain how, for wealthier people who get relatively lenient punishment, those punishments have any deterring effects.

Finally, the rehabilitation theory maintains that punishment should include measures aimed at reforming offenders. That is, in giving punishments, societies should keep in mind the ways in which the punishments will allow offenders to change themselves or be changed so they can peacefully re-enter society. Plato conceives of punishment in such a way; he imagines that to suffer punishment is to suffer some good, and evading punishment is often a worse path to go down. Interestingly, it seems that when punishment practices are functions of class, wealthier people who can pay their way out of punishments are actually deprived of opportunities to reform. The man in the above example surely should have had a chance to think about the harms he caused through his crime, and would, for rehabilitation theorists, have been made better off had he had such opportunities.

All this paints a rather dismal picture of punishment and the attempts to morally justify it in the real world. But what would happen if certain measures were put in place in these capitalist societies that guarantee a fair system of punishment? For example, what if cash bail were determined in a manner proportional to the offender’s income (or simply abolished)? What if every defendant were required to use state-appointed attorneys, and what if implicit biases against poorer people were accounted for? It seems that if all these kinds of issues could truly be taken care of (and whether this is even possible is certainly up for debate), punishment would perhaps not exist as a function of economic class.

However, even if all this came to pass, it still would not mean that society’s response to crime would escape the influence of socioeconomic status. That is, even if the processes surrounding punishment were made completely just and equal, the social and economic inequalities that can lead individuals to commit crimes would still exist. This fact alone would still lead to sections of the population committing certain kinds of crimes in greater proportions than others, and being punished for it. For this reason, it seems that before punishment can truly become morally justifiable in capitalist societies, the social circumstances that lead individuals into confrontations with those institutions as well as the institutions surrounding punishment also have to be made just.

On Classism and Inequality

Posted by Keith Tidman

In various forms, and to many degrees, classism, meaning prejudice against people belonging to a particular social class, and social inequality are pervasive, pernicious, and persistent. And they are unbreakably bound: classism and inequality engage one another in a symbiotic, mutually reinforcing relationship. The two phenomena are therefore best explored together.

The casualties of classism, predominantly poorer, less educated, working-class people, not uncommonly internalise the discrimination, resenting and yet accepting censure at the same time. The victims may find it difficult to dismiss the opprobrium as unjust — they might, in resignation, wrongly see it as fitting to their station in life. The 19th-century German philosopher Friedrich Nietzsche attempted to rationalise why, dismissively stating that: 

 “The order of castes is merely the ratification of an order of nature.”

At the same time, class has appeared hard-wired across generations within families. For many, there are no or few available strategies to exit the cycle they’re caught up in. Measures of influence, power, wealth, job status, and knowledge — along with verdicts about decency, heritage, behaviours, habits, and who deserves what — are the filters through which stereotypes and biases pass. Identity, labels, entitlement, and rationalisation are among the tools instigators use to perpetuate classism. Their claim to merited privilege becomes the normative standard. That standard, however, can run into the immorality of social and economic inequality that’s arbitrary, often non-merit based, and stems from self-indulgence.

Appropriately, the 18th-century Scottish social philosopher Adam Smith pushed back against Nietzsche’s dismissiveness, laconically offering the optimistic, affirmative view that:

 “... the  difference of natural talents in different men is, in reality, much less than we are aware of.” 

A notion that all people, of all classes, can build on. 

Yet classism and inequality aren’t figments; they are real social constructs that bear concretely on citizens’ lives. Certain groups, believing their economic and sociopolitical advantages endow them with higher class rankings, enjoy yet another consequential privilege: they get to pull the levers on how government, the law, institutions, entitlements, and cultural foundations are designed and operate, and whom those levers favor. This instrumentalist perspective serves as a means to acquire additional benefits. The privileged are adept at influencing the running of nations and leveraging the hand they get to play. They project their influence on society in ways that primarily attend to self-interests, with modest resources to be shared among the rest.

The effect of those residual resources doesn’t make inequalities right, or more bearable or fixable; the effect is duplicitous. In a paradoxical way, the privileged exert a powerful, dominant grip, while dexterously advancing their interests. The exercise of power often happens veiled — though it needn’t always do so, as out-in-the-open brazenness is no barrier to political manipulation. An offshoot among the privileged is increased self-determination and sovereignty over choice — their own and their nation’s. Distrust of the financially oiled powerbrokers — among those who feel disenfranchised and denied fairness and opportunity — emboldens disunity and strident polarisation. Sometimes the outcome is the rise of extreme factions on both the left and right of politics, clashing over matters of both policy and heart-felt beliefs.

The underprivileged classes see that, in an increasingly and perhaps irresistibly and irreversibly globalised world, there’s merely a larger platform on which those already holding capital, and the levers of influence that accompany it, extend their gains all the more. The so-called common good isn’t always seen as an enlarging, sharable pot — where zero-sum resources go only so far and are seen to be acquired at the expense of other groups. The less-advantaged members of society might question whether equality and merit really matter, as opposed to an unfair 'legacy' grip on claims to influence, wealth, and power. 

Liberal economics promises the opportunity to rise among the ranks, though serving as more an aspirational, albeit elusive, brass ring. Identity — such as race, ethnicity, gender, national origin, language, and history — is integral. Identity serves as a means to decide how to share access to rights, choice, fairness, justice, goods, safety, and well-being — and ultimately recognition and legitimacy in the marketplace of ideas — according to the governing arrangement. Yet inequality endangers these benefits.

As an ideal, the observation by the 18th-century French philosopher Jean-Jacques Rousseau is still highly relevant to the debate — duplicated around much of the world — over class, inequality, the public good, sociopolitical advantage, and nations’ responsibility to rectify egregious imbalances:

“It is therefore one of the most important functions of government to prevent extreme inequality of fortunes; not by taking away wealth from its possessors, but by depriving all men of means to accumulate it; not by building hospitals for the poor, but by securing the citizens from becoming poor.”

Yet, the reality — whether in liberal democracies or in patriarchal autocracies, and most systems of governance and social philosophies in-between — has seldom worked out that way. Classism and inequality continue to march conspicuously in unison and without remedy, their rhythms bound irremediably together, each still used to justify and harden the shape of the other.