Logorrheic law profs on punishment law and policy

I attended this morning a symposium on "Punishment Law and Policy" sponsored by the Texas Law Review, specifically a panel on the subject of "Modern Crime Control Mechanisms" featuring Yale academics Dan Kahan and Donald Braman, and Jonathon Simons from UC Berkeley. It was interesting enough, I suppose, but as one audience member leaned over and said to me during Kahan's presentation, "logorrhea" was perhaps the defining characteristic of the event. Smart as they were, none of these fellows knew how to use four words to describe a concept that they could confuse using forty.

Still, the ideas discussed were useful, so I'll try to translate the highlights into more people-friendly prose.

Kahan presented on the subject of shaming sanctions, recanting his advocacy of them over the last decade after enduring withering criticism from liberals in the academy. Kahan first supported shaming sanctions, he said, because he thought the system needed more alternatives to incarceration. He'd considered shaming punishments viable because they convey the public's disapprobation of crime without the high social costs involved with incarceration. Fair enough. He'd backed off that position, he said, because those with "egalitarian" or "individualist" philosophies disapproved of them, including numerous people he respected.

If those advocating incarceration alternatives, he said, didn't support shaming sanctions (and obviously the tough on crime crowd prefers incarceration over any alternative), then maybe it was time to look for a different approach. Kahan came to believe the problem stemmed from differences in "cultural cognition," which is a high-falutin' way of saying that people's values inform their political positions in different ways. Well, duh! Welcome to politics, Mr. Kahan!

Kahan's past endorsement of shaming was essentially a political ploy, to hear him tell it -- an effort to come up with punishments besides incarceration that could be politically sold to the right wing. In doing so, though, he said shaming proposals ignored the values of liberals and thus didn't provide a stable platform for reform. By contrast, prison's meaning is more ambiguous, allowing people of different political stripes to find ways to support it for different reasons -- some because it's punitive, some because it's (theoretically) rehabilitative, some because it incapacitates the offenders, and some because it humiliates or shames them.

Kahan argued that alternatives to incarceration need to express condemnation more ambiguously than shaming, allowing people with different values to simultaneously tell different stories about what the punishment means in ways that affirm their own values. I thought that was a pretty good point. It's not simple to craft proposals with appeal across value systems, but when it can be done it's the best way to push reform in the political arena.

Concepts of "restorative justice," Kahan said, more readily fit the bill. They're seen as less punitive by liberals, but many conservatives see them as another brand of shaming aimed at placating the victim, whose moral authority in the equation they see as definitive.

(Doc Berman, BTW, has written extensively on the subject of shaming, including a number of excellent posts linked here.)

Donald Braman's presentation discussed his research into what people in poor communities want from punishment, as opposed, he said, to what liberal or conservative politicos think. He said poor folks wanted punishments to focus on helping offenders better contribute to society and reducing the collateral consequences of punishment. Instead of focusing on criminals' rights, he said, poor folks want to force offenders into more beneficial behaviors, especially drug treatment, job training, and literacy programs. These approaches, Braman said,

• Reinforce "pro-social norms" while incarceration erodes them,
• Protect pro-social relationships, especially family and employment relationships, and
• Are perceived by the community as just and fair.

Braman said in public opinion surveys 90% of the public supports these types of punishments as alternatives to incarceration, and that the level of support varies very little across political philosophies or partisan affiliation.

His most concrete proposal, though, struck me as one of those ivory tower moments that make you wish law professors made it into the courtroom more often. He thought that prior to sentencing, jurors should be polled to determine what they thought would be the most just, effective sentence, then that information should be aggregated through sentencing commissions to generate recommendations for new incarceration alternatives. The big problem: Virtually no criminal cases any more ever go to a jury. In Texas, e.g., 99+% of all cases today are resolved through plea bargains.

Jonathon Simons' presentation argued that Americans' view of punishment, even in its most punitive forms, stemmed from a "positivist" view, or a desire to protect society, to "keep them away from us," rather than an overarching desire to punish. In recent decades, he said, a "neoclassical" view of crime emerged which considers crminality essentially in market terms -- raising the "cost" of crime by increasing the penalty should cause it to go down. Now, he said, elite opinion was heading back toward a "neopositivist" view.

Beginning with this framework, he delved into the obscure work of Italian criminologist, Cesare Lombroso, who pioneered the "positivist" approach to criminology in the late 19th century. Virtually all of Lombroso's findings have been debunked, he pointed out, and many were facile, foolish or overtly racist. But Simons argued that Lombroso left behind a three-part legacy:

• Criminality is defined not by its relation to the law but by its relation to normality - the perception of criminals as definably, measurably different from the rest of us, he said, can be traced to Lombroso.
• Criminology is the most "political" of the social sciences. (Simons said criminology is so politicized that it sometimes is confused as being "apolitical" because the politics are so infused in the fabric of its study.)
• The object of criminology is construction of the nation, to overcome regional and social difference to embrace what's common among us.

I have to say, though I was interested in his historical diversions about Lombroso, I thought Simons' analysis too facile to be very useful. I think most folks have mixed feelings about crime and punishment, rooted in lots of different cultural values and sources that intermingle and sometimes contradict one another. The theoretical labels, in the context of such a complex cultural melange, just don't help all that much. In that sense, I found Kahan's advocacy of ambiguity in one's philosophical approach a better fit for the political arena. What's really needed isn't to identify and label the dominant philosophies of the day, but to craft proposals with which various philosophical approaches can all be comfortable.

Now if we can just get these fellows to all read George Orwell's essay on Politics and the English Language, and implement his suggestions, all the brainpower in that room might actually be of use to somebody out in the world.