Sunshine Recorder

It would be pure illusion to believe that laws are made to be respected, or that the police and courts are intended to make them respected. Only in disembodied theory could we pretend that we have once and for all subscribed to the laws of the society to which we belong. It is common knowledge that laws are made by certain people for other people to keep.

But we can go further. Lawbreaking is not an accident, a more or less unavoidable imperfection. Rather, it is a positive element of the functioning of society. Its role is part of a general strategy. Every legislative arrangement sets up privileged and profitable areas where the law can be violated, others where it can be ignored, and others where infractions are sanctioned.

Michel Foucault, on the Role of Prisons

(Source: approachingsignificance)

Link: 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy

In this short essay, written for a symposium in the San Diego Law Review, Professor Daniel Solove examines the nothing to hide argument. When asked about government surveillance and data mining, many people respond by declaring: “I’ve got nothing to hide.” According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the nothing to hide argument and exposes its faulty underpinnings.

Since the September 11 attacks, the government has been engaging in extensive surveillance and data mining. Regarding surveillance, in December 2005, the New York Times revealed that after September 11, the Bush Administration secretly authorized the National Security Administration (NSA) to engage in warrantless wiretapping of American citizens’ telephone calls.1 As for data mining, which involves analyzing personal data for patterns of suspicious behavior, the government has begun numerous programs. In 2002, the media revealed that the Department of Defense was constructing a data mining project, called “Total Information Awareness” (TIA), under the leadership of Admiral John Poindexter.2 The vision for TIA was to gather a variety of information about people, including financial, educational, health, and other data. The information would then be analyzed for suspicious behavior patterns. According to Poindexter: “The only way to detect … terrorists is to look for patterns of activity that are based on observations from past terrorist attacks as well as estimates about how terrorists will adapt to our measures to avoid detection.”3 When the program came to light, a public outcry erupted, and the U.S. Senate subsequently voted to deny the program funding, ultimately leading to its demise.4 Nevertheless, many components of TIA continue on in various government agencies, though in a less systematic and more clandestine fashion.5

 In May 2006, USA Today broke the story that the NSA had obtained customer records from several major phone companies and was analyzing them to identify potential terrorists.The telephone call database is reported to be the “largest database ever assembled in the world.”In June 2006, the New York Times stated that the U.S. government had been accessing bank records from the Society for Worldwide Interbank Financial Transactions (SWIFT), which handles financial transactions for thousands of banks around the world.Many people responded with outrage at these announcements, but many others did not perceive much of a problem. The reason for their lack of concern, they explained, was because: “I’ve got nothing to hide.”9

The argument that no privacy problem exists if a person has nothing to hide is frequently made in connection with many privacy issues. When the government engages in surveillance, many people believe that there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. Thus, if an individual engages only in legal activity, she has nothing to worry about. When it comes to the government collecting and analyzing personal information, many people contend that a privacy harm exists only if skeletons in the closet are revealed. For example, suppose the government examines one’s telephone records and finds out that a person made calls to her parents, a friend in Canada, a video store, and a pizza delivery place. “So what?,” that person might say. “I’m not embarrassed or humiliated by this information. If anybody asks me, I’ll gladly tell them where I shop. I have nothing to hide.”

The “nothing to hide” argument and its variants are quite prevalent in popular discourse about privacy. Data security expert Bruce Schneier calls it the “most common retort against privacy advocates.”10 Legal scholar Geoffrey Stone refers to it as “all-too-common refrain.”11 The nothing to hide argument is one of the primary arguments made when balancing privacy against security. In its most compelling form, it is an argument that the privacy interest is generally minimal to trivial, thus making the balance against security concerns a foreordained victory for security. Sometimes the nothing to hide argument is posed as a question: “If you have nothing to hide, then what do you have to fear?” Others ask: “If you aren’t doing anything wrong, then what do you have to hide?”

In this essay, I will explore the nothing to hide argument and its variants in more depth. Grappling with the nothing to hide argument is important, because the argument reflects the sentiments of a wide percentage of the population. In popular discourse, the nothing to hide argument’s superficial incantations can readily be refuted. But when the argument is made in its strongest form, it is far more formidable.

In order to respond to the nothing to hide argument, it is imperative that we have a theory about what privacy is and why it is valuable. At its core, the nothing to hide argument emerges from a conception of privacy and its value. What exactly is “privacy”? How valuable is privacy and how do we assess its value? How do we weigh privacy against countervailing values? These questions have long plagued those seeking to develop a theory of privacy and justifications for its legal protection.

This essay begins in Part II by discussing the nothing to hide argument. First, I introduce the argument as it often exists in popular discourse and examine frequent ways of responding to the argument. Second, I present the argument in what I believe to be its strongest form. In Part III, I briefly discuss my work thus far on conceptualizing privacy. I explain why existing theories of privacy have been unsatisfactory, have led to confusion, and have impeded the development of effective legal and policy responses to privacy problems. In Part IV, I argue that the nothing to hide argument— even in its strongest form—stems from certain faulty assumptions about privacy and its value. The problem, in short, is not with finding an answer to the question: “If you’ve got nothing to hide, then what do you have to fear?” The problem is in the very question itself. 

Link: Are There Any Natural Rights?

I shall advance the thesis that if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free. By saying that there is this right, I mean that in the absence of certain special conditions which are consistent with the right being an equal right, any adult human being capable of choice (I) has the right to forbearance on the part of all others from the use of coercion or restraint against him save to hinder coercion or restraint and (2) is at liberty to do (i.e., is under no obligation to abstain from) any action which is not one coercing or restraining or designed to injure other persons.”

I have two reasons for describing the equal right of all men to be free as a natural right; both of them were always emphasized by the classical theorists of natural rights. (I) This right is one which all men have if they are capable of choice; they have it qua men and not only if they are members of some society or stand in some special relation to each other. (2) This right is not created or conferred by men’s voluntary action; other moral rights are.3 Of course, it is quite obvious that my thesis is not as ambitious as the traditional theories of natural rights; for although on my View all men are equally entitled to be free in the sense explained, no man has an absolute or un conditional right to do or not to do any particular thing or to be treated in any particular way; coercion or restraint of any action may be justified in special conditions consistently with the general principle. So my argument will not show that men have any right (save the equal right of all to be free) which is “absolute,” “indefeasible,” or “imprescriptible.” This may for many reduce the importance of my contention, but I think that the principle that all men have an equal right to be free, meager as it may seem, is probably all that the political philosophers of the liberal tradition need have claimed to support any program of action even if they have claimed more. But my contention that there is this one natural right may appear unsatisfying in another respect; it is only the conditional assertion that if there are any moral rights then there must be this one natural right. Perhaps few would now deny, as some have, that there are moral rights; for the point of that denial was usually to object to some philosophical claim as to the “ontological status” of rights, and this objection is now expressed not as a denial that there are any moral rights but as a denial of some assumed logical similarity between sentences used to assert the existence of rights and other kinds of sentences. But it is still important to remember that there may be codes of conduct quite properly termed moral codes (though we can of course say they are “imperfect”) which do not employ the notion of a right, and there is nothing contradictory or otherwise absurd in a code or morality consisting wholly of prescriptions or in a code which prescribed only what should be done for the realization of happiness or some ideal of personal perfection. Human actions in such systems would be evaluated or criticised as compliances with prescriptions or as good or bad, right or wrong, wise or foolish, fitting or unjitting, but no one in such a system would have, exercise, or claim rights, or violate or infringe them. So those who lived by such systems could not of course be committed to the recognition of the equal right of all to be free; nor, I think (and this is one respect in which the notion of a right differs from other moral notions), could any parallel argument be con structed to show that, from the bare fact that actions were recognized as ones which ought or ought not to be done, as right, wrong, good or bad, it followed that some specific kind of conduct fell under these categories.

Link: Dens of Bureaucracy

The difference between legal and illegal drugs is about history and business, but not science.

Back in grad school, I took my daily SSRI and departed for the archives to write a history of the War on Drugs. I imagined it was going to be a sensational account of Latin American cartels, corrupt DEA officers, and deadly side effects in the highest echelons of foreign policy. Two years later, here’s what I have: a confusing mix of hypochondria and iatrophobia and a story of bureaucracy, businessmen slapping each other on the back, and nationalized morphine production during WWII. I found war, and there were drugs. But instead of the Nixonian counteroffensive, in looking for the origins of the War on Drugs I was led to the birth of the modern pharmaceutical industry.

The current distinction between drugs classes as legal and illegal has little to do with their substance per se and everything to do with a confluence of court rulings, prison expansion, and business interests. It developed side-by-side with the pharmaceutical industry and the federal drug policing apparatus, then known as the Federal Bureau of Narcotics, in the early part of the twentieth century. Each used the other to fortify its own positions of power. But the useful il/legal distinction was nearly destroyed during the Second World War, due to the urgent necessity of opium stockpiling for use by the Army, only to emerge stronger and more politically potent than ever.

In a time of war, the FBN began the first in a long series of collaborations with pharmaceutical conglomerates and drug cartels, which continued in some form throughout the twentieth century. To achieve national security objectives, the drug enforcement agencies that divided cartels from corporations by legal fiat collaborated to produce drugs for which they otherwise threw people in prison. These alliances strengthened the power of these agencies to determine the public understanding of what was legal and what wasn’t. They also allowed the feds to work with drug companies and cartels alike during the Cold War to develop various chemical military technologies and leverage on-the-ground power. But this double-dealing led to schizophrenic outcomes. Most spectacularly, during the Second World War, the U.S. Treasury Department gold vaults held 3,000,000 pounds of raw Macedonian opium, while the military was court-martialing G.I.s for marijuana use.

At the turn of the century, the U.S. had no federal drug-policing agency. Pharmaceutical manufacturers were dispersed into small independent businesses that produced and prescribed as they saw fit. But as a public drug reform movement denouncing the widespread sale and use of opiates gained steam, drug manufacturers were forced to define and defend the realm of “legitimate” production and sale of pharmaceuticals. Scandalous paper headlines related the horrors of drug addiction and adamant reformers began condemning the medical profession as a whole. Previously dispersed drug manufacturers, pharmacists, and medical practitioners were forced to come together and defend their legitimacy in the public eye to ensure continued profits and to preempt undesirable legal or government intervention. This collusion proved good for some and fatal for others — “quacks” were weeded out and, when the dust cleared, a handful of self-proclaimed professional drug producers controlled the market.

Once “legitimate” drugs had been clearly defined for the public, a whole other category of drugs became not only illicit but, for the first time, illegal. The innocuously named Harrison Act of 1914 was the first piece of national anti-narcotic legislation passed in the U.S. Although the Harrison Act only regulated drug sales through a poorly-enforced system of record-keeping, it codified the distinction between “dangerous” drugs and drugs “for medical or scientific purposes.” While the categories of medical or “ethical” drugs and illegal/“criminal” drugs quickly came to acquire a powerful moral currency, both were hasty products of negotiations over laws like the Harrison Act. The two categories were united at birth, only taking on meaning and material power in relationship to one another. In particular, they were expedient agreements between the government and the newly united pharmaceutical industry, as the latter worked to ensure that narcotic regulation (now inevitable thanks to the scandals raised by the reform movements) would take a shape that was convenient to business.

Link: The Case Against The Death Penalty For Dzhokhar Tsarnaev

Boston bombing suspect Dzhokhar Tsarnaev has only been in custody a few days, and at least two U.S. senators have already called for him to face the death penalty. It is difficult indeed to imagine a crime more deserving of society’s most severe sanction than the one allegedly committed by Tsarnaev and his brother. The brothers built bombs, targeted a public event packed with spectators, and, as a final cruelty, attacked the finish line of a marathon — guaranteeing that many of their victims would be too exhausted to flee after just completing a 26 mile run. One of their victims will not see his ninth birthday. Another victim, who they allegedly murdered during their failed effort to escape justice, had barely begun his career as a police officer. We still do not know what motivated the Tsarnaevs to such meaningless destruction, but it’s hard to see their actions as anything other than pure evil.

So Dzhokhar Tsarnaev may present one of the strongest possible cases for the death penalty. And yet, even in this case, the argument for pursuing a death sentence against Tsarnaev does not hold up.

The best argument for the death penalty is that it deters people from committing homicides in the first place, an argument that suggests we should execute far more people than just Dzhokhar Tsarnaev. If you think the death penalty is about deterrence, then you need to have it as an available option for all crimes you want to deter with it.

The deterrence argument, however, is doubtful at best. According to Dartmouth University statistician John Lamperti, “an overwhelming majority among America’s leading criminologists [have concluded that] that capital punishment does not contribute to lower rates of homicide.” While some studies do claim a deterrent effect, these studies are based on tiny data samples that yield doubtful results. As Yale Law Professor John Donohue explains, death sentences are “applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors.” Murder rates in states without the death penalty are consistently lower than those in states that do sentence people to die.

Meanwhile, few institutions expose the hazards inherent in government-mandated punishment more nakedly than the death penalty. Capital cases are difficult and incredibly expensive for prosecutors. As a consequence, the wealthy and privileged, who have the resources to hire outstanding legal counsel, are very rarely executed. The people that are convicted, by contrast, tend to be poor and disproportionately non-white. Nor is such arbitrariness limited to the way we distinguish among defendants, as the way we dole out death sentences also gives the lie to any claim that America values all human life equally. According to one study, defendants who kill high-status white people with college degrees are six times more likely to be sentenced to die than defendants who kill black victims closer to the margins of society.

Indeed, there is simply no escaping the role that race plays in determining death sentences. To take one demonstrative statistic from an ocean of them, six percent of murders in Alabama involved black defendants and white victims, but ten times that percentage of black death row inmates were convicted of murdering whites.

The death penalty also kills innocent people. Roughly 139 death row inmates have been exonerated since 1973, 61 percent of whom were people of color. At least ten innocent peoplethat we know of have been executed — and these are only the ones that we know of.

These three realities — the impact of wealth, the disparate treatment based on race, and the risk of killing innocents — are themselves reasons why the death penalty should not exist. But are they arguments against applying it, so long as it does exist, in the most heinous of cases? Though Tsarnaev may well face prejudice on the basis of his religion, the fact that this is such a high profile case means he will likely receive excellent legal counsel, and his guilt is hardly in doubt. Though not quite as “hard” a case for anti-death penalty advocates as, say, Aurora shooter James Holmes — who was white, wealthy, and also almost certainly a mass murderer — Tsarnaev is one of the cases where the death penalty appears most likely to be applied fairly and justly.

The Boston Marathon bombing is as horrible a crime as one can imagine, so Tsarnaev’s case raises the difficult question of whether America can limit executions to only the most heinous crimes — at least under circumstances where the defendant’s guilt isn’t in question and there’s no evidence that his trial will be conducted unfairly in any fashion. Can we limit death sentences only to people as evil as Tsarnaev appears to be?

The simplest answer to this question is that we are a nation of laws, and our most fundamental law says we cannot create a brutal, rarely applied punishment targeting just a handful of crimes. The Constitution forbids “cruel and unusual punishments. So as a punishment becomes more “unusual” — or, in the Supreme Court’s words, as it no longer can be squared with “evolving standards of decency that mark the progress of a maturing society” — it stands on increasingly weaker constitutional ground.

Indeed, it is likely that the death penalty is already unconstitutional under this rule. The number of death sentences has been on the decline in the United States, but not principally because of legal reforms limiting the death penalty to a small number of cases: it’s a combination of full legal abolition in some jurisdictions and the spread of anti-death penalty norms among citizens and prosecutors in others. 60 percent of U.S. counties have stopped seeking the death penalty entirelyas a punishment for any crime. One study of death sentences and executions from 2004-2009 discovered that just 10 percent of counties returned a single death sentence, and only 1 percent of counties produced more than one death sentence. Just four states made up 65 percent of national new death penalty convictions. In 2011, there were an estimated 14,612 murders in the United States, but only 43 executions. These data strongly suggests that executions no longer comport with our “evolving standards of decency.” We are increasingly uncomfortable with death sentences, and unwilling to execute people.

But beyond the cold language of the law, there is a deeply personal reason why we should not preserve the death penalty simply for the most heinous criminals like Tsarnaev. If you think the death penalty is a just response to murder or important to provide victims’ families with closure, then trying to limit it to a small number of multiple murders makes no sense. Why does taking one life not merit death, while taking two, three, or any other arbitrary number does? Why is the pain of one victim’s family any less important to address than the pain of families whose loved one was part of a multiple murder? There are many families that deserve the satisfaction of knowing their loved one’s murderer received society’s stiffest sanction for their crime, and it’s far from clear that the death penalty fills that need better than life without parole — indeed, it may even prolong a families’ grief. Yet the moment we say one victim, or set of victims, must be avenged by death, we lose the ability to consistently limit the death penalty’s application to rare cases — and the uncertainty and arbitrariness that plagues capital sentencing generally comes flooding back. When life without parole is the harshest penalty our courts dole out, such a sentence will stamp everyone who receives it as among the very worst criminals without opening the door to an unjust and unconstitutional policy.

So the death penalty is arbitrary. It discriminates on the basis of race and income. It kills the innocent. It is unconstitutional. And it may even deepen the wounds of families already grieving from the most terrible tragedy imaginable.


From director Amy Berg, in collaboration with first time Producers Damien Echols and Lorri Davis along with filmmakers Peter Jackson and Fran Walsh comes West of Memphis, a powerful examination of a catastrophic failure of justice in Arkansas. The documentary tells the hitherto unknown story behind an extraordinary and desperate fight to bring the truth to light. Told and made by those who lived it, Berg’s unprecedented access to the inner workings of the defense, allows the film to show the investigation, research and appeals process in a way that has never been seen before; revealing shocking and disturbing new information about a case that still haunts the American South. 
Writing in The Wall Street Journal, movie critic Joe Morgenstern described West of Memphis as “a devastating account of police incompetence, civic hysteria and prosecutorial behavior that was totally at odds with a vastly persuasive body of evidence uncovered in a privately funded investigation.” Director Amy Berg, wrote Morgenstern, “has a dramatist’s eye for what was irretrievably lost — the innocent lives of the children, plus 18 years of three other innocent lives. And she saw, equally well, what was there to be gained: dramatic new insights into an inexorable progression from random arrests through groundless supposition, fevered conjecture and flagrant perjury to official disgrace in a supposedly airtight case.” Film critic Philip French of The Observer called West of Memphis ”riveting,” and a “shocking indictment of the American criminal justice system and a tribute to the dedication of selfless civil rights lawyers and their supporters from all over the world.”
Watch the trailer.

From director Amy Berg, in collaboration with first time Producers Damien Echols and Lorri Davis along with filmmakers Peter Jackson and Fran Walsh comes West of Memphis, a powerful examination of a catastrophic failure of justice in Arkansas. The documentary tells the hitherto unknown story behind an extraordinary and desperate fight to bring the truth to light. Told and made by those who lived it, Berg’s unprecedented access to the inner workings of the defense, allows the film to show the investigation, research and appeals process in a way that has never been seen before; revealing shocking and disturbing new information about a case that still haunts the American South. 

Writing in The Wall Street Journal, movie critic Joe Morgenstern described West of Memphis as “a devastating account of police incompetence, civic hysteria and prosecutorial behavior that was totally at odds with a vastly persuasive body of evidence uncovered in a privately funded investigation.” Director Amy Berg, wrote Morgenstern, “has a dramatist’s eye for what was irretrievably lost — the innocent lives of the children, plus 18 years of three other innocent lives. And she saw, equally well, what was there to be gained: dramatic new insights into an inexorable progression from random arrests through groundless supposition, fevered conjecture and flagrant perjury to official disgrace in a supposedly airtight case.” Film critic Philip French of The Observer called West of Memphis ”riveting,” and a “shocking indictment of the American criminal justice system and a tribute to the dedication of selfless civil rights lawyers and their supporters from all over the world.”

Watch the trailer.

Link: The Dangerous Logic of the Bradley Manning Case

After 1,000 days in pretrial detention, Private Bradley Manning yesterday offered a modified guilty plea for passing classified materials to WikiLeaks. But his case is far from over—not for Manning, and not for the rest of the country. To understand what is still at stake, consider an exchange that took place in a military courtroom in Maryland in January.

The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?

The prosecutor’s answer was simple: “Yes Ma’am.”

The question was crisp and meaningful, not courtroom banter. The answer, in turn, was dead serious. I should know. I was the expert witness whose prospective testimony they were debating. The judge will apparently allow my testimony, so if the prosecution decides to pursue the more serious charges to which Manning did not plead guilty, I will explain at trial why someone in Manning’s shoes in 2010 would have thought of WikiLeaks as a small, hard-hitting, new media journalism outfit—a journalistic “Little Engine that Could” that, for purposes of press freedom, was no different from the New York Times. The prosecutor’s “Yes Ma’am,” essentially conceded that core point of my testimony in order to keep it out of the trial. That’s not a concession any lawyer makes lightly.

But that “Yes Ma’am” does something else: It makes the Manning prosecution a clear and present danger to journalism in the national security arena. The guilty plea Manning offered could subject him to twenty years in prison—more than enough to deter future whistleblowers. But the prosecutors seem bent on using this case to push a novel and aggressive interpretation of the law that would arm the government with a much bigger stick to prosecute vaguely-defined national security leaks, a big stick that could threaten not just members of the military, but civilians too.

Link: The Criminal Charges Against Aaron Swartz

Professor Kerr is a nationally recognized scholar in the fields of criminal procedure and computer crime law. His articles have appeared in the Harvard Law Review, Yale Law Journal, Stanford Law Review, and many other top journals, often multiple times. Professor Kerr’s scholarship has been cited in over 90 judicial opinions, including decisions by the United States Supreme Court and all of the regional U.S. Courts of Appeals. In a recent study, he ranked seventh among criminal law and procedure scholars in the United States for citations in academic journals.

This is the second in a series of posts on the Aaron Swartz prosecution. In my first post, I analyzed whether the charges that were brought against Swartz were justified as a matter of law. In this post, I consider whether the prosecutors in the case properly exercised their discretion. As some readers may know, prosecutors generally have the discretion to decline to prosecute a case; once they charge a case, they have the discretion to offer or not offer a plea deal; and once they offer the plea deal, they have some discretion to set the terms of the offer that they will accept. This post considers whether the prosecutors abused that discretion.

To provide some attempted answers, I’m going to break down the question into four different issues: First, was any criminal punishment appropriate in the case? Second, if so, how much criminal punishment was appropriate? Third, who is to blame if the punishment was excessive and the government’s tactics were overzealous? And fourth, does the Swartz case show the need to amend the Computer Fraud and Abuse Act, and if so, how?

This is a very long post, so here’s a summary of where I come out on these four questions.

On the first question, I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information. When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under the law that the individual intentionally violated. (Indeed, usually that is the point of civil disobedience: The entire point is to be punished to draw attention to the law that is deemed unjust.)  As that appears to be the case here, I think some punishment was appropriate.

On the second question, I think the proper level of punishment in this case would be based primarily on the principle of what lawyers call “special deterrence.” In plain English, here’s the key question: What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals? I don’t think I know the answer to that question, but that’s the question I would answer to determine the proper level of punishment. The prosecution’s plea offer of 6 months in jail and a felony conviction may have been much more than was needed to persuade Swartz not to engage in unlawful and anti-demoratic means to pursue his policy goals in the future. If so, then I think it was too severe. But it depends on how much punishment was necessary to deter Swartz from using unlawful means to pursue his policy goals. In my view, that’s the question that we need to answer in order to say what punishment was appropriate in Swartz’s case.

On the third question, the issue of who was to blame if the prosecution was too severe, I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz evem more in to pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.

On the fourth issue, yes, the Swartz case does point to a serious problem with the Computer Fraud and Abuse Act. But that problem is not the definition of “unauthorized access,” as some people seem to believe. (That definition is a problem, but with the Nosal case from the Ninth Circuit and likely Supreme Court review in the next year or so, I think the Courts are likely to take care of it.) Rather, the problem raised by the Swartz case is one I’ve been fighting for years: Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly. I would recommend two changes. First, the felony enhancements for 1030(a)(2) are much too broad. I would significantly narrow them. Second, I would repeal 1030(a)(4), which is redundant as it only a combination of 1030(a)(2) and the wire fraud statute, 18 U.S.C. 1343. It therefore only leads to extra and redundant charges to confuse juries, and is better off repealed.

So that’s my overall take. Let’s take it issue by issue.

Link: Just Deserts: An Interview with Danielle S. Allen

What are the differences in the ways different societies conceptualize punishment? What are the differences in the ways they enact it? And what can be learned by looking at other systems of punishment about the contingency and potential for transformation of our own system? Ancient Athens has often served as a model for certain of the modern world’s deepest aspirations in democratic government and philosophical rationality. At least since Nietzsche, it has also sometimes been approached as an extremely foreign land, whose values and practices, in their strangeness, can at the same time show just how strange our own are. How, now, does Athens look when we turn our attention to its conceptualization and enactment of punishment?

Danielle S. Allen is a political theorist who has addressed these questions in her work on both ancient Athens and modern America. Author of The World of Prometheus: The Politics of Punishing in Democratic Athens (Princeton University Press, 2000), Talking to Strangers: Anxieties of Citizenship since Brown v. Board of Education (University of Chicago Press, 2004), and Why Plato Wrote (Wiley-Blackwell, 2010), Allen is UPS Foundation Professor at the Institute for Advanced Study in Princeton, New Jersey. Justin E. H. Smith spoke to Allen by phone about the relationship between justice, punishment, and citizenship.

Your book The World of Prometheus offers a perfect way of giving historical depth to this issue on punishment, but it may also be interesting to reflect on how punishment in ancient Athens is relevant to our understanding of punishment in the contemporary world and, in particular, in the US. I’ve read both Prometheus andTalking to Strangers, your more recent book on Brown v. Board of Education, and one thing that struck me is how many of the same themes run through both books. You observe in Prometheus that the value of approaching punishment through the Greeks is that we’re able to “sharpen our thinking about punishment on the stone of the unfamiliar ancient world.” Does this remain for you the ultimate reason for studying ancient conceptions of punishment: that it gives us a point of access for understanding the problem of punishment itself by looking at an unfamiliar conception of it?

I can tell you the origin story of the book, which is simply that, as an undergraduate, I took a class on Athenian politics in which we read a lot of the speeches that were given in Athenian law courts. I was really taken aback by the fact that there was very little mention of imprisonment in those speeches, and I suddenly realized that I couldn’t imagine a world where prisons weren’t a major part of how we think about punishment. That captivated me, and I wanted to understand a world where imprisonment was not the dominant mode of understanding punishment. In that regard, the origin of the book was absolutely the shock of discovering, by looking at the ancient world, that our world is contingent, and that one particular contingency is the degree to which we use incarceration. It bears some thinking as to how we got there and what a world without extensive incarceration looks like.

Well, that might be right about our contemporary context; the ancient story is somewhat different. Generally—there are minor exceptions to this—Athenian methods of punishment strove to protect the body of the citizen, and this established a distinction between citizen and slave, between citizen and foreigner, resident alien, and so forth. The citizen stood out as having that bodily protection. In the early phase of the democracy, the main modes of punishing were monetary fines and exile. What happened, though, was that poorer citizens would find themselves imprisoned indefinitely: there were monetary penalties, and you would be thrown into prison until you’d paid them. So imprisonment wasn’t itself a penalty, except that poorer citizens began to have these indefinite periods in prison because they couldn’t actually pay the fine. Imprisonment as a penalty seems to have been developed in order to equalize the penal system, so that poorer citizens could pay with their bodies. In that regard, it was a different approach to the body than the physical punishment used for slaves and foreigners. It wasn’t really so much a matter of chastising or wounding the body, but rather of accepting the idea that the body could stand in for property. That’s what happened at that historical moment: the body became a form of property, and the person could use that property to pay their debts. Only the citizen had such rights and control over his own body.

Of course, a later development would be further equalization by stating that the rich can in fact no longer pay their way out with money.

Right, and that did not happen in Athens. There do seem to be some wrongs for which imprisonment became the basic penalty, and in that regard there was a bit of an additional equalizing, but for the most part there was still a differential situation where the rich could pay penalties and get out of things.

The central concern of the book is to discuss punishment as “a practice of constructing authority,” as you put it, and you are also concerned with what you call “the construction of desert.” This involves, as you describe, a good deal of contestation. It’s not that the authority of the state to punish in this or that way is just something the state announces, but it’s rather something that is always being contested. In part, the perpetual contestation in ancient Athens had to do with the absence in their judicial system of the role of public prosecutor. Everyone acts as their own prosecutor, and that’s always a form of contestation: everyone who wanted to see someone punished had to be able to make their case on their own. I’m wondering if you can say a bit more about how that worked, and also about the concern in the book to show the way in which authority was constructed in ancient Athens.

If you don’t mind, let me answer that in reverse, since the argument I wanted to make about authority—in its relationship to ideas of desert and contested notions of desert—I meant as a general idea. That is, I take it to be true of all political systems that punishment rests, to an important degree, on the ability to cause people to be quiet, to acquiesce. In fact, that idea is even built into our own language of punishment. We hear it in the language of “appeals.” When you appeal something, you keep calling out until there’s a moment where someone is forced to be silent. But that silence lasts only if we actually can maintain a silence more generally in the culture, which requires people to accept that this was deserved. And let’s leave out here the case of totalitarian or authoritarian regimes, and those that use terror. We can see the dynamic I am talking about actually in the recent Trayvon Martin events, where the state made a decision, but people were not quiet. People were so loud about it that the state had to return to its processes and to engage with them. And there will be a very real question all the way to the end of the process as to whether or not it will be possible for the state to achieve silence at the end.

But let’s get back to Athens. Athens was an interesting case-study because the fact of contestation, which was central to the construction of the desert that grounds the moment of silence at the end of punishment, was itself, precisely as you said, a result of the fact that everybody was responsible for prosecuting their own crimes. Right from the start, when the person got to court, they had to justify the fact that they were there, since of course to be a plaintiff also prosecuting a crime is an ethically complicated position. Are you really there because you’re prosecuting a wrong? Or do you just dislike this person, or they’ve got things that you want and this is a way to get them? Are you just using the court as a way to attack them? There are a lot of reasons to suspect anybody coming forward in this way, and so that generates a framework of suspicion that makes questions of desert very alive. Nothing is really assumed about the outcome. So I think the relationships among desert, authority, contestation, and silence apply in all penal systems, outside of the context of totalitarian regimes, but in Athens, it was particularly explicit and so that made it a little easier to think about.

Link: Why Mass Incarceration Defines Us As a Society

It is late in the afternoon in Montgomery. The banks of the Alabama River are largely deserted. Bryan Stevenson and I walk slowly up the cobblestones from the expanse of the river into the city. We pass through a small, gloomy tunnel beneath some railway tracks, climb a slight incline and stand at the head of Commerce Street, which runs into the heart of Alabama’s capital. The walk was one of the most notorious in the antebellum South.

“This street was the most active slave-trading space in America for almost a decade,” Stevenson says. Four slave depots stood nearby. “They would bring people off the boat. They would parade them up the street in chains. White plantation owners and local slave traders would get on the sidewalks. They’d watch them as they went up the street. Then they would follow behind up to the circle. And that is when they would have their slave auctions.

“Anybody they didn’t sell that day they would keep in these slave depots,” he continues.

We walk past a monument to the Confederate flag as we retrace the steps taken by tens of thousands of slaves who were chained together in coffles. The coffles could include 100 or more men, women and children, all herded by traders who carried guns and whips. Once they reached Court Square, the slaves were sold. We stand in the square. A bronze fountain with a statue of the Goddess of Liberty spews jets of water in the plaza.

“Montgomery was notorious for not having rules that required slave traders to prove that the person had been formally enslaved,” Stevenson says. “You could kidnap free black people, bring them to Montgomery and sell them. They also did not have rules that restricted the purchasing of partial families.”

We fall silent. It was here in this square—a square adorned with a historical marker celebrating the presence in Montgomery of Jefferson Davis, the president of the Confederacy—that men and women fell to their knees weeping and beseeched slave-holders not to separate them from their husbands, wives or children. It was here that girls and boys screamed as their fathers or mothers were taken from them.

“This whole street is rich with this history,” he says. “But nobody wants to talk about this slavery stuff. Nobody.” He wants to start a campaign to erect monuments to that history, on the sites of lynchings, slave auctions and slave depots. “When we start talking about it, people will be outraged. They will be provoked. They will be angry.”

Stevenson expects anger because he wants to discuss the explosive rise in inmate populations, the disproportionate use of the death penalty against people of color and the use of life sentences against minors as part of a continuum running through the South’s ugly history of racial inequality, from slavery to Jim Crow to lynching.

Equating the enslavement of innocents with the imprisonment of convicted criminals is apt to be widely resisted, but he sees it as a natural progression of his work. Over the past quarter-century, Stevenson has become perhaps the most important advocate for death-row inmates in the United States. But this year, his work on behalf of incarcerated minors thrust him into the spotlight. Marshaling scientific and criminological data, he has argued for a new understanding of adolescents and culpability. His efforts culminated this past June in a Supreme Court ruling effectively barring mandatory life sentences without parole for minors. As a result, approximately 2,000 such cases in the United States may be reviewed.

Stevenson’s effort began with detailed research: Among more than 2,000 juveniles (age 17 or younger) who had been sentenced to life in prison without parole, he and staff members at the Equal Justice Initiative (EJI), the nonprofit law firm he established in 1989, documented 73 involving defendants as young as 13 and 14. Children of color, he found, tended to be sentenced more harshly.

“The data made clear that the criminal justice system was not protecting children, as is done in every other area of the law,” he says. So he began developing legal arguments “that these condemned children were still children.”

Stevenson first made those arguments before the Supreme Court in 2009, in a case involving a 13-year-old who had been convicted in Florida of sexual battery and sentenced to life in prison without parole. The court declined to rule in that case—but upheld Stevenson’s reasoning in a similar case it had heard the same day, Graham v. Florida, ruling that sentencing a juvenile to life without parole for crimes other than murder violated the Eighth Amendment’s ban on cruel and unusual punishment.

Last June, in two cases brought by Stevenson, the court erased the exception for murder. Miller v. Alabama and Jackson v. Hobbs centered on defendants who were 14 when they were arrested. Evan Miller, from Alabama, used drugs and alcohol late into the night with his 52-year-old neighbor before beating him with a baseball bat in 2003 and setting his residence on fire. Kuntrell Jackson, from Arkansas, took part in a 1999 video-store robbery with two older boys, one of whom shot the clerk to death.

The states argued that children and adults are not so different that a mandatory sentence of life imprisonment without parole is inappropriate.

Stevenson’s approach was to argue that other areas of the law already recognized significant differences, noting that children’s brains and adults’ are physiologically distinct. This, he said, is why children are barred from buying alcohol, serving on juries or voting. He argued that the horrific abuse and neglect that drove many of these children to commit crimes were beyond their control. He said science, precedent and consensus among the majority of states confirmed that condemning a child to die in prison, without ever having a chance to prove that he or she had been rehabilitated, constituted cruel and unusual punishment. “It could be argued that every person is more than the worst thing they’ve ever done,” he told the court. “But what this court has said is that children are uniquely more than their worst act.”

The court agreed, 5 to 4, in a landmark decision.

“If ever a pathological background might have contributed to a 14-year-old’s commission of a crime, it is here,” wrote Justice Elena Kagan, author of the court’s opinion in Miller. “Miller’s stepfather abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten.” Children “are constitutionally different from adults for purposes of sentencing,” she added, because “juveniles have diminished culpability and greater prospects for reform.”

Link: Bugs and Beasts Before the Law

Murderous pigs sent to the gallows, sparrows prosecuted for chattering in Church, a gang of thieving rats let off on a wholly technical acquittal – theoretical psychologist and author Nicholas Humphrey* explores the strange world of medieval animal trials.

On 5 March 1986 some villagers near Malacca in Malaysia beat to death a dog, which they believed was one of a gang of thieves who transform themselves into animals to carry out their crimes. The story was reported on the front page of the London Financial Times. “When a dog bites a man,” it is said, “that’s not news; but when a man bites a dog, that is news”.

Such stories, however, are apparently not news for very long. Indeed the most extraordinary examples of people taking retribution against animals seem to have been almost totally forgotten. A few years ago I lighted on a book, first published in 1906, with the surprising title The Criminal Prosecution and Capital Punishment of Animals by E.P.Evans, author of Animal Symbolism in Ecclesiastical ArchitectureBugs and Beasts before the Law, etc., etc. The frontispiece showed an engraving of a pig, dressed up in a jacket and breeches, being strung up on a gallows in the market square of a town in Normandy in 1386; the pig had been formally tried and convicted of murder by the local court. When I borrowed the book from the Cambridge University Library, I showed this picture of the pig to the librarian. “Is it a joke?”, she asked.

No, it was not a joke. All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence.

In 1494, for example, near Clermont in France a young pig was arrested for having “strangled and defaced a child in its cradle”. Several witnesses were examined, who testified that “on the morning of Easter Day, the infant being left alone in its cradle, the said pig entered during the said time the said house and disfigured and ate the face and neck of the said child .. which in consequence departed this life.” Having weighed up the evidence and found no extenuating circumstances, the judge gave sentence:

We, in detestation and horror of the said crime, and to the end that an example may be made and justice maintained, have said, judged, sentenced, pronounced and appointed that the said porker, now detained as a prisoner and confined in the said abbey, shall be by the master of high works hanged and strangled on a gibbet of wood.

Evans’ book details more than two hundred such cases: sparrows being prosecuted for chattering in Church, a pig executed for stealing a communion wafer, a cock burnt at the stake for laying an egg.

Link: Life Without Parole: A Different Death Penalty

"As a death row lawyer who fights to keep his clients alive, I believe life without parole denies the possibility of redemption every bit as much as strapping a murderer to the gurney and filling him with poison."

If you were sentenced to life in prison with no chance of release, how long would you want to live? Would you want to live at all?

I think about these questions often. My clients, inmates on death row, think about them every day. In more than twenty years of representing prisoners facing execution, I’ve had several ask me to waive their appeals so they could hurry up and die. There are some who think any client who “volunteers”—that’s our euphemism for giving up—is necessarily irrational. I don’t share that view. To be sure, two of my clients who told me to waive their appeals were mentally ill, and I fought to keep them from volunteering to die. But the others were perfectly rational. They did not want to spend at least six years, maybe fifteen, appealing their sentences, only to ultimately be strapped to a gurney and injected with poison.

It’s easy for most people to see their decisions as unhinged. We don’t spend twenty-three hours a day in sixty-square-foot cells with no TV, limited access to radio, books or magazines, and no contact with other human beings (unless you count being escorted from point A to point B by often sadistic corrections officers). I’ve had clients who want me to fight for them, and then when we win and get their death sentence converted into life, end up telling me I’ve betrayed them.

Let me be clear: most of my clients want to live. Most of them prefer a life of virtually no freedom to no life at all. But underlying this preference is a hope, however faint, they might one day get out.

On November 6, Californians will vote on Proposition 34, the Savings, Accountability and Full Enforcement (SAFE) for California Act. The ballot initiative would abolish capital punishment in the state and replace it with a sentence of life in prison without the possibility of parole. Every week I get e-mails from national abolitionist groups touting the virtues of Prop 34. Facebook ads urge me to “like” it. But there are good reasons to believe that if the vote were up to the 725 inmates on California’s death row, it would fail. When the Campaign to End the Death Penalty sent surveys on Prop 34 to more than 200 California death row prisoners, fifty inmates responded. Forty-seven opposed the measure.

For California’s 725 death row inmates, having their sentences commuted to life without parole would mean automatically losing their right to state-appointed lawyers to pursue their habeas corpus appeals. For a huge proportion, this would instantly rob them of every last ember of hope and increase by up to 20 percent the number of California inmates who will grow old and die behind bars. One California death row inmate recently wrote an op-edopposing Prop 34 suggesting that he’d rather be executed than have his opportunities for appeal taken away. In a state that has executed only thirteen people since 1976, it would take two millennia to kill every current death row inmate, a fact that also helps explain how prisoners might oppose Prop 34.

Concerns over innocence seem to be at the heart of Prop 34. “California Leads the Nation in Wrongful Convictions,” read a press release from the Yes on 34 campaign on October 24. “More Evidence that California Needs to Pass Prop 34 to Prevent Execution of an Innocent Person.” Prop. 34 supporters point out that those with strong claims of innocence will still be entitled to receive court-appointed counsel. But few of the residents of death row will be able to make such a showing.

The justifications given by death penalty opponents who have embraced life without parole reveal the extent to which abolitionists have surrendered the moral basis of their position. It used to be that abolitionists argued that most people who commit bad acts can change and that the cruelest punishment one can inflict is to rob a human being of hope. But this concept—I hesitate to use the word “rehabilitation”—has seeped out of the criminal justice system over the past forty years. Prisons are now designed almost entirely for security in mind and not at all for socialization. Sentences have gotten steadily longer. And while states are turning away from the death penalty, they are replacing it with a different kind of death sentence. Sending a prisoner to die behind bars with no hope of release is a sentence that denies the possibility of redemption every bit as much as strapping a murderer to the gurney and filling him with poison.

Opponents of capital punishment often point out that the United States is the only developed Western country still executing prisoners, a comparison meant to shame us for being aligned with such human rights–violating countries as Iran, China and North Korea. It’s not a bad argument, but exactly the same could be said about life without parole. Our neighbors to the south don’t have it. Almost all of Europe rejects it. Even China and Pakistan, hardly exemplars of progressive criminal justice policy, allow prisoners serving life sentences to come up for parole after twenty-five years. Meanwhile, the United States imprisons wrongdoers for sentences that are five to seven times longer than sentences for comparable offenses in, say, Germany. Yet the recidivism rate in Germany is roughly 25 percent lower than ours.

Link: Neuroscience Challenges Criminal Law

Neuroscience is changing the meaning of criminal guilt. That might make us more, not less, responsible for our actions.

In the summer of 2008, police arrived at a caravan in the seaside town of Aberporth, west Wales, to arrest Brian Thomas for the murder of his wife. The night before, in a vivid nightmare, Thomas believed he was fighting off an intruder in the caravan – perhaps one of the kids who had been disturbing his sleep by revving motorbikes outside. Instead, he was gradually strangling his wife to death. When he awoke, he made a 999 call, telling the operator he was stunned and horrified by what had happened, and unaware of having committed murder.

Crimes committed by sleeping individuals are mercifully rare. Yet they provide striking examples of the unnerving potential of the human unconscious. In turn, they illuminate how an emerging science of consciousness is poised to have a deep impact upon concepts of responsibility that are central to today’s legal system.

After a short trial, the prosecution withdrew the case against Thomas. Expert witnesses agreed that he suffered from a sleep disorder known as pavor nocturnus, or night terrors, which affects around one per cent of adults and six per cent of children. His nightmares led him to do the unthinkable. We feel a natural sympathy towards Thomas, and jurors at his trial wept at his tragic situation. There is a clear sense in which this action was not the fault of an awake, thinking, sentient individual. But why do we feel this? What is it exactly that makes us think of Thomas not as a murderer but as an innocent man who has lost his wife in terrible circumstances?

Our sympathy can be understood with reference to laws that demarcate a separation between mind and body. A central tenet of the Western legal system is the concept of mens rea, or guilty mind. A necessary element to criminal responsibility is the guilty act — theactus reus. However, it is not enough simply to act: one must also be mentally responsible for acting in a particular way. The common law allows for those who are unable to conform to its requirements due to mental illness: the defence of insanity. It also allows for ‘diminished capacity’ in situations where the individual is deemed unable to form the required intent, or mens rea. Those people are understood to have control of their actions, without intending the criminal outcome. In these cases, the defendant may be found guilty of a lesser crime than murder, such as manslaughter.

In the case of Brian Thomas, the court was persuaded that his sleep disorder amounted to ‘automatism’, a comprehensive defence that denies there was even a guilty act. Automatism is the ultimate negation of both mens rea and actus reus. A successful defence of automatism implies that the accused person had neither awareness of what he was doing, nor any control over his actions. That he was so far removed from conscious awareness that he acted like a runaway machine.

The problem is how to establish if someone lacks a crucial aspect of consciousness when he commits a crime. In Thomas’s case, sleep experts provided evidence that his nightmares were responsible for his wife’s death. But in other cases, establishing lack of awareness has proved more elusive.

Link: Who inherits your iTunes library?

Many of us will accumulate vast libraries of digital books and music over the course of our lifetimes. But when we die, our collections of words and music may expire with us.

Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.

And one’s heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”

Part of the problem is that with digital content, one doesn’t have the same rights as with print books and CDs. Customers own a license to use the digital files — but they don’t actually own them.

Apple and Amazon.com grant “nontransferable” rights to use content, so if you buy the complete works of the Beatles on iTunes, you cannot give the “White Album” to your son and “Abbey Road” to your daughter.

According to Amazon’s terms of use, “You do not acquire any ownership rights in the software or music content.” Apple limits the use of digital files to Apple devices used by the account holder.

“That account is an asset and something of value,” says Deirdre R. Wheatley-Liss, an estate-planning attorney at Fein, Such, Kahn & Shepard in Parsippany, N.J.

But can it be passed on to one’s heirs?

Most digital content exists in a legal black hole. “The law is light years away from catching up with the types of assets we have in the 21st Century,” says Wheatley-Liss. In recent years, Connecticut, Rhode Island, Indiana, Oklahoma and Idaho passed laws to allow executors and relatives access to email and social networking accounts of those who’ve died, but the regulations don’t cover digital files purchased.

Link: On Prison, Flogging, and Capital Punishment

Why prison doesn’t work and what to do about it.

Prison time is a very severe punishment. JS Mill likened it to being consigned to a living tomb.* Any society that employs it should do so with care and restraint. Yet we do not. Partly because we think that prison is a humane punishment, it is drastically over-used in many countries, to the point of cruelty. Aside from failing in humanity, prison does not even perform well at the specific functions of a criminal justice system, namely, deterrence, retribution, security, and rehabilitation. We need to reconsider our over-reliance on prison, and reconsider whether other types of punishment, including capital and corporal punishment, may sometimes be more effective and more humane.

The fundamental problem with prison time, as Mill notes, is that its severity is hard to imagine. After all, many of us frequently find that what with one thing and another we have spent the whole day indoors, and we don’t find that we have really suffered for it. It is hard to imagine quite how it must be to be confined to a small space and narrow routine for periods of years, or even until death. There is no great drama to focus on. No particularly terrible things happen. Just more of the nothing. Attempting to multiply our feelings about spending one day indoors does not really get us there.

A punishment that is hard to imagine will not work very well. First, people contemplating breaking the law will not be especially deterred by dread of the punishment. In particular, though the concept of prison as an institution may be somewhat dismaying, it is hard to contemplate the difference in severity of spending different lengths of time in one. Duration is a rather abstract dimension, and the difference between 5 years and 10 years, especially the cumulative difference, is hard to imagine. Thus, contrary to the influential ‘law and economics’ perspective, people are not able respond ‘rationally’ to the schedule of prison time sentences for different crimes by making cost-benefit calculations for their actions that incorporate the ‘price’ of punishment. Nor do increases in sentences have the deterrent effect one might expect (sending armed robbers to prison for 40 years instead of 10 doesn’t reduce the incidence of armed robbery).

[…] We should consider supplementing prison time with other types of punishments, which might be more effective and humane. Here I will consider two such punishments which ‘civilised’ countries have long abandoned: flogging and execution. Many people would automatically say that such punishments are inhumane. But the very reason for this reaction - that such punishments are extremely unpleasant to contemplate - is exactly their advantage over prison time.  

Flogging is barbaric and ugly. Yet that in itself does not mean it is cruel or inhumane or otherwise unfit as a punishment. Punishments, by definition, are supposed to be very unpleasant. Peter Moskos, who recently wrote a book In Defense of Flogging (op-ed), notes that if convicted criminals were given a choice between being flogged and serving a lengthy prison term, they would probably choose the flogging (and wouldn’t we all?). While one would not want to make a general principle of allowing convicts to decide their own punishments, this thought experiment is interesting because it goes against the general consensus that prison is more humane.

When one considers the advantages of flogging more generally one can see that it measures up well against prison time, especially longer prison sentences (more than a year). Its drama makes it much easier to imagine, indeed to over-imagine, and so it should work better than prison as a deterrent. For the same reason, it also seems better able to satisfy legitimate demands for retribution by those who have been wronged. Seeing someone strapped to a frame and having their skin ripped from their body seems to me to convincingly satisfy the requirement that justice be seen to be done, in a way that prison cannot. Yet, unlike prison, achieving this effect doesn’t require that large chunks of a person’s life be thrown away, together with their relationships and mental well-being. Thus, exactly because of its barbarism, flogging seems a more efficient punishment because the total suffering it inflicts is less. In my view, that makes it more humane.

Execution seems to me an appropriate punishment for very severe crimes, such as certain kinds of sadistic murder (like Anders Breivik). I do not suppose judicial executions are a particularly persuasive deterrent to most of the people who commit such crimes (indeed it is very hard to understand how such people look at the world). Nonetheless they seem an appropriate retributive punishment. Such crimes are almost the definition of evil and undoubtedly merit a very severe punishment. Furthermore, in such cases society has a legitimate fear of the perpetrators ever being allowed to operate freely amongst them, and a legitimate distrust of claims about successful rehabilitation.

Yet I do not think that even such crimes deserve any punishment more severe than execution. I do not believe that the perpetrators deserve to be locked away forever in a living tomb, perhaps even in solitary confinement for their own protection. While people in prison do live considerably shorter lives than the rest of us, that still allows for several decades of monotonous hopelessness before a miserable, unmourned death. I follow Mill here in considering that death is not the worst of all things that can happen to a person, and that merely allowing someone’s continued existence is not mercy. A truly humane approach to punishment must consider the severity of the punishment from the convict’s perspective, the undramatic but unrelenting mental suffering that a life sentence means.

Let me conclude by reconsidering what we mean by a ‘humane’ punishment. It seems to me that prison time is a humane punishment in one particular aspect. It is humane to those who impose it. Because it is difficult to imagine how awful it must be to be deprived for years on end of all the things that make life desirable or valuable, prison time is all too easy for a society to choose to impose on its troublemakers. Furthermore, because it appears to consist of removing pleasures rather than inflicting suffering, societies do not feel any great moral compunction about employing it liberally. It is therefore the perfect punishment for a society too cowardly to face up to its own moral responsibilities. True punishment is supposed to hurt, and the punisher is supposed to be aware of their moral responsibility for inflicting that pain. That is why true punishment is always carried out with some regret, even when it is just. The risk posed by ‘humane’ punishments is that they are so easy to impose that the act of punishing isn’t taken seriously anymore, and no longer reflects the considered judgement of society about what justice requires.

Consider the debate about judicial executions in America. Because execution is generally acknowledged as a severe punishment, its proper application is considered a momentous responsibility. Not only are the few hundred death penalty cases much more carefully prosecuted by the state (on average), but a number of NGOs concern themselves entirely with investigating and scrutinising whether justice has been done. Indeed, the conscience of a civilised society deserves no less. Yet it is striking that the more than 100,000 people sentenced to decades of suffering in prison do not receive such careful attention to the justice of their cases. Sending large numbers of people to prison for a very long time doesn’t seem to stir America’s conscience in the same way as a ‘real punishment’ like execution. It should. 

I don’t agree with the solutions mentioned in the article but he makes a very good argument against prisons. The author focuses too much on deterrent and retribution, while I think that rehabilitation and overall societal improvement is the most important thing to focus on to reduce crime and recidivism. Thought-provoking article, nonetheless.