Crime without Punishment?

I thought I'd start by posting about something that has been puzzling me of late.

One of the purposes of criminal law in many countries is to protect individuals, or society at large, from harmful individuals, by means of either punishment (which usually takes the form of jail sentences) or deterrence.

Duff, in the Stanford Encyclopedia of Philosophy, says that "Crimes are, at least, socially proscribed wrongs—kinds of conduct which are condemned as wrong by some purportedly authoritative social norm. That is to say that they are wrongs which are not merely ‘private’ affairs, which properly concern only those directly involved in them: the community as a whole—in this case the political community speaking through the law—claims the right to declare them to be wrongs."

In light of this, I would ask you to watch some or all of the following video shot at an anti-abortion demonstration that took place in Libertyville, USA.

Now, I do not think that the people in the video would say that the woman who has an (illegal) abortion should not be punished. Given that anti-abortionists often self-identify as being strongly religious, it is probably fair to assume that they imagine that the woman in question would receive some sort of punishment in the afterlife (indeed, some of the people interview in the video appear to say so explicitly). Therefore, the peculiarity is not the decoupling between a criminal act about which one feels very strongly and the necessity of any sort of punishment, but between said criminal act and the necessity of legal punishment.

I strongly suspect that the people in the video would be very much against the abolition of legal punishment (of whatever form) in cases of battery, murder, etc. So my first question is: what is going on here? Is it simply that 'criminalization' (and particularly the implication ‘if crime then punishment’) is not a clearly understood concept? In other words, do people roughly reason as follows:

1. Very Bad Acts ought to be criminalized
2. Abortion is a Very Bad Act
3. Therefore, Abortion ought to be criminalized

But then, how do we account for the fact that no one is lobbying for jail terms following murder sentences to be abolished?

A second possibility is that there is some other kind of interpretation problem, perhaps deriving from a semi-propositional understanding of what 'taking a life' means in the context of abortion (i.e., perhaps even committed anti-abortionists, on some level, may not feel that shooting an adult and taking the day-after pill are exactly the same).

My second question is: Can you think of any other cases in which a form of conduct is perceived to be criminally wrong (and seriously so) but for which no legal punishment, especially jail sentences, is perceived to be required?

9 Comments

  • Olivier Morin
    Olivier Morin 25 September 2008 (16:40)

    I don’t think anti-abortionists are guilty of incoherence there. There are many other cases where people, while admitting in principle that an action should be punished, agree that the punishment may be cancelled beause the criminal was under considerable emotional and social pressure. Suicide is an obvious example: in some legal codes the law is supposed to punish it, but in reality that is never done, and legal codes have adapted to this (see for example a recent change in Canadian law). The fact that suicide is considered a full-blown crime is reflected in the fact that allowing, encouraging or promoting it in any possible way is a punishable offense. Notice the parallel with many abortion laws. Infanticide is a subtler example of the same thing: everyone agrees that it is not permissible, but courts, and most legal codes, are much less severe for premeditated infanticide than they are for normal cases of homicide.

  • Nicola Knight
    Nicola Knight 25 September 2008 (16:41)

    While I can certainly see your point, I don’t think that the anti-abortionists are arguing about what in law are called defenses (e.g., duress and so on), or about factors that make it more likely for a conviction to be made (e.g., premeditation). Rather, I get the impression that they see legal punishment as not necessarily following from criminal conviction even in cases where defenses do not apply (although one interviewee does mention the importance of mens rea and takes the ’taking life = murder’ point to its logical conclusion). Also note the apparent bafflement of some respondents; I imagine that if one were to argue against the conviction of a killer on the basis of, say, intoxication, one would find it relatively easy to verbalize the role that the fact of being intoxicated plays in the argument (informal observation seems to support this: e.g., ’he was under the effect of alcohol, he didn’t know what he was doing, he can’t be convicted of murder!’).

  • Olivier Morin
    Olivier Morin 25 September 2008 (16:44)

    I was not thinking of extenuating circumstances and defenses in a narrow legal sense. In the case of infanticide, many people feel that an infanticide mother, who premeditated the murder of her child and was fully conscious of her choice, is to be pitied for what she did. Having had to kill her child somehow appears to be a form of punishment in itself. It also makes it likely that the mother was in a difficult situation, emotionally, financially, etc. For those reasons, courts and law codes do not apply to infanticide the punishments used for normal murders. Technically, no extenuating circumstance is invoked there. The crime is just deemed less serious because it is infanticide, not homicide. Same thing for suicide attempts: many legal end religious codes think of suicide as a crime against oneself, but in many cases, no charges are pressed against the suicide, because they have already punished themselves enough. Another example, although not universal, might be incest. Some codes do not explicitly punish the most shocking forms of incest: the social rejection, the shame and, supposedly, the despondency incurred by those who commit incest is thought to be so awful that punishment would be redundant. I think anti-abortionists are simply reasoning along that line when they answer the questions. The bafflement in their answers is unsurprising: this is what you get whenever you ask an unexpected question to a narrow-minded activist (of any brand).

  • Benoît Dubreuil 25 September 2008 (16:45)

    The parallel between infanticide and abortion mentioned by Olivier probably points toward a solution. An interesting constrast is that infanticide (especially by the mother) is generally met with only a weak desire to punish, while child murder (by a stranger) triggers a strong desire to hurt or kill the murderer. Thus, the relationship of the murderer to the child apparently impacts on our judgments about retributive justice. Olivier suggests that crimes against oneself (or ones’ children) are deemed less serious, but this does not sound quite right. Anti-abortionist activists take abortion quite seriously, just like most of us consider that incest is a serious breach to morality. I prefer his second suggestion that crimes against oneself (or one’s children) are already regarded as punishments. The sufferings of the offender arguably trigger empathy and inhibit the desire to punish in other persons. Consider the following case. A man is drunk driving and kills one person. Unfortunately, he is also hurt in the accident and left quadroplegic. Intuitively, my urge to punish him is milder than if he was not hurt, but the crime and the outcome are the same. The aim of punishment is precisely to see the other person in pain in response to her violation of a norm. It is thus not surprizing if violations of norms that are detrimental to the offender tend to elicit more nuanced judgments about punishment. The offender is already in pain because of what she has done.

  • Nicola Knight
    Nicola Knight 25 September 2008 (16:47)

    With regards to the infanticide case, at least in UK legislation a defense of diminished responsibility is always assumed (de jure), the idea being that the mother has lost her balance of mind as a result of giving birth. Note that you cannot kill a 6-month-old and call it infanticide, at least legally speaking — it must be a newborn child; this makes the defense more plausible. But I see another problem with the counterexamples of infanticide and suicide. The statutes that prohibit these acts are, as you rightly note, very rarely enforced, or at least they very rarely lead to custodial sentences. Now, I think this is due more to the inertia characteristic of penal systems, which are loath to decriminalize behaviour in case circumstances (most commonly, sadly, being popular opinion) change. The difference that I see is that these acts are already criminalized; the situation is thus the reverse of what we’re seeing with abortion. In other words, the lack of legal penalties deriving from a lenient application of the law (which in turn may well derive, as you say, from the appreciation of the suffering involved in either infanticide or suicide) is not the same as the advocation of the criminalization of an act without the belief that convictions should carry legal penalties of any kind. Incest may be a better case for comparison, but again we do not see movements either for its criminalization (where it’s not illegal) or for its decriminalization (where it is). Incidentally, where criminalized, incestuous acts do carry custodial sentences. However, I suspect that, were incest rates at the same level as abortion rates (in the US), we would see the establishment of anti-incest activist groups much in the same mould as anti-abortionists. Would they also call for legal punishment? My guess is — probably not. In all, while I agree that the self-punishment deriving from guilt is part of the story, I don’t think it’s all of it. Don’t forget that the explicitly-stated story coming from the anti-abortionist side is that most women who have abortions are not in dire circumstances, and basically have them for the sake of making their life easier. A solution to this problem has to account for these attitudes as well. I still think that what’s going on involves a not-entirely-clear understanding of the consequences of criminalization. Many thanks Oliver and Benoit for the great discussion! I look forward to many more.

  • Nicola Knight
    Nicola Knight 25 September 2008 (16:48)

    ”Consider the following case. A man is drunk driving and kills one person. Unfortunately, he is also hurt in the accident and left quadroplegic. Intuitively, my urge to punish him is milder than if he was not hurt, but the crime and the outcome are the same.” This is a very interesting case — it would be great to see whether there are differences between common-sense and legal reasoning, and whether the differences are absolute or relative (e.g., common-sense respondents may have higher or lower thresholds for what counts as enough punishment than legal experts).

  • Olivier Morin
    Olivier Morin 25 September 2008 (16:56)

    ”Don’t forget that the explicitly-stated story coming from the anti-abortionist side is that most women who have abortions are not in dire circumstances, and basically have them for the sake of making their life easier.” I think the reason why anti-abortionists make up that story is precisely because they feel the pull of the opposite argument: if abortion is often the outcome of dire life circumstances, criminalizing it is a way of criminalizing poverty, lack of education, being raped, etc. They would not make up that story if they did not feel that, somehow, their position would be in danger if the story was wrong.

  • Olivier Morin
    Olivier Morin 25 September 2008 (16:57)

    I understand my own opinion better after reading your comment. I think the key factor here is the domain of impact of a crime. Let me explain: a man who killed my neighbour’s child is capable of kiling mine: he can be considered a menace (hence the emotions of fear, anger, etc. are perfectly rational here). But if my neighbour killed her own child, it is not a good reason for me to suppose that she might plausibly kill mine. Emotionally, shock, horror or outrage are appropriate, not so much fear and anger. I think the case of abortion is a little thicker than that, though, because, as in assisted suicide, there are multiple sources of agency. We might want to test our intuitions on the borderline case of self-abortion. In the 60s, abortion in France was illegal and, in some parts of the nation, taboo. A woman in my family, a committed pro-choice activist, self-aborted (she had the medical skills to do so). The abortion was initially kept secret, but the story rapidly leaked out, and, while some members of the family pretended not to see anything, others were not so forgiving and shunned her for the remaining decades. In that case, I think (but it is only a personal impression) self-abortion was seen by family elders as a more serious breach than abortion. Legally speaking, it made a huge difference: in the 1960s, it meant the woman was guilty of murder. The family could have gone to the police, but they did not (would they have done so if an infanticide, and not a self-abortion, had been committed? somehow it seems more likely). Suppose you put yourself in the shoes of an anti-choice activist: what would be your intuitions concerning self-abortion as opposed to abortion? as opposed to infanticide?

  • Benoît Dubreuil 25 September 2008 (16:59)

    NK says: ”In all, while I agree that the self-punishment deriving from guilt is part of the story, I don’t think it’s all of it. Don’t forget that the explicitly-stated story coming from the anti-abortionist side is that most women who have abortions are not in dire circumstances, and basically have them for the sake of making their life easier. A solution to this problem has to account for these attitudes as well. I still think that what’s going on involves a not-entirely-clear understanding of the consequences of criminalization.” To be sure, anti-abortionists explicitly state that women who abort are not in dire circumstances, but I doubt that they would seriously claim that they do not suffer from abortion. A way to test if they understand the consequences of criminalization could be to check how anti-abortionists think that doctors should be punished when they abort women. My guess is that anti-abortionist will be much more enthousiastic about imposing legal sanctions on doctors than on women. If I am right, this could be explained by the fact that aborting women is not painful to doctors in the way that it is to the women themselves. An alternative explanation is that people consider aborting others to be a more serious breach than being aborted (because doctors directly kill the foetus). Olivier’s suggestion that people react more strongly to self-abortion might indicate that the question of agency (who kill the foetus) is central to anti-abortionists’ judgments about punishment. But the case of self-abortion is puzzling. At first sight, self-abortion sounds to me both 1) more disgusting and 2) more dangerous (to the mother). Stronger emotions can here explain more visceral condemnation. With regards to punishment, it would be interesting to test how stronger blame of self-abortion impact on the desire to punish. The standard hypothesis is that a more serious blame induces a stronger desire to punish. But if my hypothesis is right (more pain to the offender = less desire to punish), I am pretty sure that we would get the opposite effect. If self-abortion sounds more dangerous and more disgusting to the mother, then it could also elicit more empathy and inhibit anti-abortionists’ desire to punish. Unfortunately, I can not find enough anti-abortionists around me to test these hypotheses…