From: PL436000@BROWNVM.BITNET (Jaie)
Newsgroups: bit.listserv.politics
Subject: intent and punishment
Date: 28 Dec 92 15:30:40 GMT
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
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU