Sympathy for the devil?

Adam’s post has already provided a sense of the depth and range of Lynn Stout’s book.  It has something for everybody, both lawyer and non-lawyer alike.  I second Adam’s praise.  Parts I and II of the book are more general, but Part III and gets down to specifics: in tort, contract, and criminal law.  I want to say I liked all of the book except for maybe one or two paragraphs in the chapter on criminal law. 

            Of course, I’m going to focus on those paragraphs.       

            In the chapter on “Crime, Punishment and “Community,” Stout’s target is (again) law and economics, and I am generally sympathetic to her critique, although when she quotes the economist George Stigler as saying that “the uses of criminal sanctions is erratic” and that “there is a widespeared failure to adopt rational criteria” (208), I find myself nodding in agreement.  There are a lot of problems from a strictly law and economics point of view with America’s system of crime and punishment, and we should be open to ways to make criminal sentences more cost-effective in addition to more just. It’s not only possible but probable that we’re using prison too much, and that the benefits in deterrence gained by it are marginal when compared to its huge cost.

            So, with Brett, I worry that law and econ might be something of a straw person here (a couple more examples: when totalling up the cost for prison, Stout seems to ignore prison’s deterrent value when she concludes that prison “makes no economic sense” [204]; she also writes that criminal law “punishes intent more than consequences,” [206] but completed crimes are almost always punished more harshly than attempts).

            I want to focus here not on economics and the criminal law but conscience and the criminal law.  Stout doesn’t want to defend all of the criminal law in terms of conscience, and she is keen to focus on those parts where she thinks law and econ doesn’t explain the law all that well.  Her aim, she says, is to explain “how our criminal justice system relies on conscience.”  (200).  But can’t we use conscience not only to explain how criminal law operates, but also to criticize it?  Shouldn’t we?

            Start with a front page photograph in the Saint Louis Post-Dispatch from a few months ago, showing eighteen prisoners sleeping on the floor of the library in the Jefferson County Jail.  It is hard not to feel that something has gone wrong here: whether it is that not enough money is being spent for prisons and jails or that we are putting too many people away for too long for the wrong things.  One needs only to read the Supreme Court’s description of prison conditions in Brown v. Plata to see how awful things have become.

            What does conscience say about these types of conditions?   What should it say?   Stout briefly mentions the problem: she says, rightly, that “many people seem indifferent to the horrific conditions convicts often endure in jail, including overcrowding, lack of medical care, and physical and sexual abuse by guards and other prisoners.” (214).  Stout’s use of the term “horrific” signals rightly, I think, that these conditions ought to trouble our consciences more than they actually do. 

            Stout does not spend much time discussing this side of conscience: sympathy even for those behind bars.  Indeed, in an odd sort of distancing from the horrific treatment she has just described, Stout seems to suggest that such conditions may be necessary to deter some.  “There is inevitable tension between using prison as a deterrent and using it for rehabilitation.  Harsh confinement conditions that may be essential to deter a true psychopath may simultaneously prove counterproductive for nonpsychopathic convicts, if ill treatment makes them feel less connected to society.”  (214). 

            Well, true enough, some may be deterred only by horrible conditions (or maybe not: some may never be deterred).  But certainly not all, and what about the deeper objection that some conditions are simply wrong to inflict on people, no matter how necessary for deterrence?  Strangely, in discussing prison conditions, Stout seems to slip into the law and economics rhetoric she elsewhere (and very eloquently) condemns.  Horrific (or “harsh” ) conditions justified if necessary for deterrence and not outweighed by the need for rehabilitation. 

            There is a similar kind of rhetorical disconnect when Stout discusses the case of Robert DiBlasi, a person who, as a result of stealing a package of batteries was sentenced (in California, home of Brown v. Plata) to thirty-one years to life.  How, Stout asks, could such a prison sentence be justified?  One answer, a pretty plausible one to my mind, is that it can’t.  It probably doesn’t deter much other crime, and seems disproportionate to his crime (this is complicated a little, but not much, by his previous crimes, one of which was violent).

            Stout says that the three-strikes-and-you’re-out policy can be justified in DiBlasi’s case by the fact that crime is “contagious” and that imprisoning DiBlasi means that others wouldn’t see him committing crimes and “imitate his behavior.” (224).  In a footnote, Stout relates this idea to general deterrence. (277 n.44)

            This again, sounds like law and economics but with the added and rather troubling reference to crime as “contagious,” and (a sentence later) that “we” might be “infected” by criminals (244) if we see them committing crimes.  I don’t like the rhetoric, and am dubious about the contagion theory of crime, both in DiBlasi’s case (who happens to have AIDS) and more generally.  I think our consciences should act as a check against seeing other people, even those who commit crimes, as diseased, and so needed to be put in “quarantine” (244) to protect the rest of us healthy and clean people.   This type of language no doubt contributes to the indifference we feel when offenders are put in overcrowded conditions, with poor or no health care, and subject to rape. 

            There is a lot to like about Stout’s chapter on criminal law, but in some places, the tone just seems wrong.  Her purpose, in part, is to explain the criminal law.  I just wish she had spent more time on the ways in which our current criminal justice system (and I have not even raised the issue of race) surely “shocks the conscience.”  We need explanations in the criminal law, of course, but we just as surely need suggestions for reform.  It is the great value of Stout’s book as a whole that it shows how our care can extend beyond our own selfish interests, and so gives us hope that such reform is possible.