Some last minute thoughts on Punishment:

* An important test of any goal-directed rule-governed social practice -- and punishment is certainly such a practice -- is what its justification is, whether that justification makes sense whether it works, and what is done when a mistake (or willful wrong act) is occurs. A lot can go wrong in penology: a "crime" may not be a crime (my Scottish ancestor was hanged for practicing Methodism, the person punished may not be guilty of the crime committed, the wrong punishment (too light, too heavy) may be administered, the environment be too lenient or too harsh (Club Fed, "the hole"), even non-just punishment (a crooked accountant being blackmailed, sodomized, and his throat cut by a fellow prisoner).

* Punishment is generally justified by having some goal or result: payback, correction and reform, restitution, deterrence, etc. But often in practice these justifications goals are after-the-fact ad hoc reasons. Often people are mad at criminal C and want to vent anger and outrage, or have pity on C and want forgiveness and mercy and social welfare. Often both, regardless of consistency or coherency.

* The institutions of punishment may easily degenerate into a kind of socially autonomic robotic) behavior, all the more so when the system is overworked -- in itself a bad sign when a stated goal of punishment is to reduce crime. The result can be a system in which crime is a "crop" to be cultivated and harvested, and criminals "processed" like bananas or sewage, in greater and greater quantities, to no end other than to continue the practice in wrote fashion.

* On this topic, two of the most devastatingly funny and wretched Looney Tunes cartoons ever made illustrated this zombie-like attitude towards crime. The cartoons featured a bird, a Sylvester-like cat in pursuit of the former, and a huge grey bulldog just trying to be left alone. The cat would chaise the bird, the bird -- by far the brightest of the three -- would lead chase back to the dog, the cat would crash into the dog and the dog would punish the cat. What distinguished these two cartoons from hundreds of similarly situated plots was the bulldog's penal theory (a statistically improbable phrase if ever there was on). In the first cartoon, the dog had a fully-established and rigidly enforced penal system. The cat would land on the dog's head (or crash through his doghouse, and rather than chasing the cat up a tree, would coolly grab the cat by the neck and solemnly transport it to the place of punishment. There were several standard punishments, and the cat -- with a 100% recidivist rate -- knew them all. The cat would cry out "Oh, please, God, NO -- *not* 'The Fence'! (Or 'The Drainpipe", or "The Birdbath", or the especially sadistic and unspeakably gruesome "Happy Birthday") to no avail. In the case of "The Fence", the bulldog threaded the cats tail through a tiny knothole in a board fence, went around to the other side, grabbed the cat's tail firmly, and yanked the cat through the knothole. Five minutes later the cat was off chasing the bird again, the bird would lead the cat back around to the dog, and the process repeated, ending with "The Works", in which the entire repertoire of punishments were applied by the cat being tied to a rope attached to a winch. (The mischievous bird tied a second rope around the dog's leg, taking him
through the gauntlet as well.) In the second cartoon, the only revision to this totally ineffective and dysfunctional rite was the addition of a filing cabinet and a random prize wheel. The cat would be taken to the wheel, forced to spin it, and a number -- say, 79 -- would come up. The dog would go to the filing cabinet, pull out file 79 which contained a sentence, say, "The Rake" and apply it forthwith.

* The differences (unhappily not all that great) between the Looney Tunes penal system and our real world system are mainly twofold. There is a huge and complex and cumbersome and inefficient regulation of the process by constitutional law, and there are (at least) three different and competing interests driving the system like a troika (a cart pulled in three direction by three horses facing different directions). There are the "get tough" bulldogs who feel that the fault of a system that has life without parole, maximum security, riots, almost zero privacy, solitary and lethal injection (to say nothing of a-legal recourse, like beat-downs, gangs and rape, mutilations and murders) is too soft, the "reformers" who feel that everyone -- Charles Manson, Hannibal Lecter, Jeffrey Dahmer -- can be brought back into society; picture Lecter working in a high school cafeteria ("There are no bad boys" -- Father Flanagan, "Boy's Town"). (Some post-Modernists, like Marcel Foucault (see "Discipline and Punish: The Birth of the Prison") feel that crime itself is a "social construct" and not real (see Richard Eisner's posted comment under / re "Addiction") and prison a perverse artifact that deals badly with a "non-problem". The main function of these two factions is to oppose the ends of the other factions. As liberal Alan Dershowitz has often said, his duty -- as an office of the court -- is to oppose government power, on the theory that government threatens liberty. Ironically, "get tough" hardliners ("three strikes and you're dead") endorse the very same philosophy -- to opposing ends: (liberal) law and order and government get in the way of "due process" (see Walker van Tilberg Clarke's "The Ox-Bow Incident" in which a 26-man committee of a humble law-abiding town hang three men (wrongly) accused of cattle rustling).

The third horse in the troika is the least visible: it is the self-preserving "institution" of penology, from laws to police to courts to prison, a fully deterministic leviathan resistant to optimization, change or rethinking of any kind. And here we return to the Looney Tunes system, where reason and intellect and research and imagination and innovation and evolution are stymied.

* A key paradox embedded in theories of punishment is the schizoid nature of human beings, and our attitude towards dealing with people who do unjust and blameworthy things.

There is the deterministic / behaviorist ("Skinner Box") view of humans as rats in a maze whose acts can be controlled by external stimuli (see BF Skinner's "Walden Two"). Create the right environment (here either the "get tough" or the "Boy's Town" view will serve -- they are both behaviorist theories) and They Will Behave. The debate as to how much carrot and how much stick should be applied is moot -- the idea is that criminal C is casually deterministically controlled by the reasoned and orchestrated actions of someone *else* (a guard, a therapist). Who provides the controlling input that governs the guard or therapist (a Philosopher King on sabbatical?) is not clear.

The other view is more existential: people are "doomed to be free" to be themselves. Laws are normative guides one accepts, or doesn't. You can lock up a Charles Manson or a Nelson Mandela, and he will be restrained but not subdued. In this sense, the freedom fighter and the sociopath are of a kind -- their moral world view may be utterly different , but what is identical is that they do not accept the normative authority of the coercive imprisoning system, nor its "skinner box" controls (see the 1967 series "The Prisoner" with Patrick McGoohan, in which an ex-spy resists an entire "prison village's" carrot-and-stick coercions). One can imprison and even destroy such people, but not program them.

* On a closely related subject there is the recent controversy over the ethics (and more importantly here, the efficacy) of "torture" (i.e., punishment) in obtaining information from radical Muslim terrorists (or, radical Christian terrorists, like Timothy McVeigh). The same dichotomy: induce the inquisitee to exercise individual autonomy, responsibility, morality and dignity, or, shove the beast down into a juicer and squeeze the intelligence outta him, applies here, and is as effective as "bulldog's" (or Flanagan's) methods.

On the one hand, "civil rights" advocates appeal to decency and legal rights when there is an attempt to extract vital information from a terrorist who is engaged in a plot to slaughter innocents in order to coerce Americans into fear and submission, and to eventually submit to radical Islam. The "civil right" attitude "takes the higher ground" at the cost of denying the problem at hand. Giving up information about plots, other terrorists, etc., defeats the purposes of the interrogatee. It is not a matter of being on the "wrong" as opposed to the "right" side -- Nelson Mandela and Martin Luther King found themselves on the opposite side of South African Apartheid (or the FBI) -- but of being an opponent in a combative confrontation. There is a "zero sum" game at work here. The hope that a terrorist will repent and convert is unrealistic -- many "civil rights" advocates would say it is irrelevant: one must never harm people. This principle of course ought to apply to shooting enemy soldier, bombing enemy civilians and starving them through embargos, but somehow that is "different". This view misses the point of "get tough" torture, in which the idea is to get vital tactical information, not exercise democracy. (Think of police who shoot a bank robber holding hostages.) People (even terrorists and bank robbers) *ought* to act in for the greater good -- but often don't. In this sense the terrorist is acting like an automaton and is treated as one. ("Here I stand": Martin Luther, to the Catholic Church.)

On the other hand, their are the "get tough" crowd (including a lot of 2012 Republican presidential candidates -- none of whom served in the military or CIA, but all of whom, it seems watched the episode of "24" in which Keifer Sutherland successfully water boards a terrorist). (Q: If watching a *fictional* TV drama makes one an expert on terrorism, can watching the Looney Tunes marathon on the Cartoon Channel to qualify as a constitutional lawyer be far behind?)

Here, as in the penology case above, the idea is to begin with what *works*. Thesis: a solution that does not work cannot be a good solution to a problem. The problem with water boarding was not that it was indecent, but that it failed to work. The purpose of water boarding was to obtain timely and reliable tactical information regarding imminent terrorist activities. And through water boarding we obtained unreliable and dated information through this practice. The real justification for water boarding was that it *felt* good, as when a tired and overworked cop or prison guard kicks or beats a perp or con. (The claim that there is no other way to deal with such unrecalcitrant people is unjustified. See Matthew Alexander's book "How to Break a Terrorist" for a more natural effective and highly manipulative and non-coddling ways to extract information from an unwilling interviewee.)

The biggest mistake -- aside from using the fictional "24" as an authoritative source for torture techniques -- was that water boarding advocates confused interrogation with *punishment*. The terrorist (Khalid Sheikh Mohammed) was water boarded 187 times (183 times in the course of one month) and did not ever give out any useful or timely information. (I would give a kidney to find out what his water boarders thought as they brought him in for session 186: "He's about to crack, I can feel it! ;-P). The sentiment --and defense offered by water boarders, politicians, pundits and riled US citizens was that Mohammed *deserved* water boarding. He may well have -- and worse. *I* -- no bleeding heart humanitarian -- would have put him foot-first into a juicer set to "puree" and left him there until his cap hit the blades. But I would not have deluded myself into thinking this was intelligence gathering, or palmed this off to the American public as any thing than what it would have been: tired, frustrated, unpent up rage.

And I have not even addressed the fact that such a process does not insure to any degree of confidence that the torturee does in fact know anything of value, or is even culpable of any terrorist acts or plots. (Alexander's methods -- pooh-poohed by over-testosteroned agents who produced far poorer results (if you don't count facial scars) -- had the advantage of being checked and confirmed, or refuted.) Intelligence gathering (like police crime detection and science itself) is a slow and meticulous and boring and highly undramatic process unsuitable for dramatization, alas. But if what we want is catharsis, we have the "get tough" method, and if what we want is moral untaintedness (do no wrong, at the cost of doing no right either -- to avoid fault: say nothing, do nothing, be nothing) we can take the other road. And neither get us anywhere.

Unlike most posts I offer no solutions her. I would argue that the dilemma of "the iron fist or the velvet glove is a paradox (a *seeming* contradiction arising from false and conflicting premises). With moral / legal / cultural / political / religious premises it is far, far harder to correct any mistakes that have entered the debate, as these are not arrived at and held to by rational means. It is far easier to correct the weight of iron or the diameter of Pluto because nobody has a stake in the matter. But suggest that changes be made in our penal system or school board discipline policy, or our way of thinking about these (see Einstein: "[The atom bomb] has changed everything . . . except for our way of thinking") and the irrational part takes over and we revolt. (The 2012 presidential election -- if you dip beneath the cartoonist bluster -- is a referendum on "conventional wisdom" versus pragmatism. Pragmatism is flawed, but conventional wisdom has a Don Quixotic madness to it that makes it the far greater of the two evils.

RDB