On crime and punishment

On crime and punishment

When asked: “What is crime?”, common people’s first response is that it is a violation of law. But that is not always true. Traffic violations, even serious ones, are not a crime. They are traffic accidents (reckless driving is a tort at heart) or minor indiscretions (speeding depending on circumstances might even be called for).

Some more thoughtful people would say that crime are immoral acts. Here too we find that most of the crimes are not immoral, such as use of drugs or skipping school (for jurveniles).

A few learned people (criminologists) defined crime as deviance, i.e., acts which violate norms or customs. Crime is not in the nature of the act, but process of labeling (Becker). This definition makes crime a political act; crime is what most (some?(Conflict school) people think it is. By this definition, the life style of rich, being of a minority (invented) taste, should be criminal! But they are not. The lifestyle of the poor is selectively punished, e.g., loitering for poor is punished vs. window-shopping for the rich is promoted.

Finally., to formulae an (cognitive) “idea” of crime is not the same as to conjure up an (instinctive) “image” of crime. All people carry with them an image of crime. Crime is harmful. Crime is hurtful. Crime is evil. In most cases, it is the “image” (feeling) of crime generally and not the “idea” (thinking) of crime specifically that dictate our response to crime. In the end “feelings” trumps “thinking”. That is why “retribution” and “incapacitation” not “rehabilitation” or “deterrence” drives penal policy.

Another issue of finding out what crime is, is that we carry with us one image of crime and there are many types of crime by law, murder vs. rape vs. theft, and still more varieties by happenstance, e.g., “hot” under the collar killing vs. “cold” blooded killing. The common law taught that “motive” is not an element of criminal responsibility while “intent” is. To most people in the street (jury) it is the reverse, at least in the liability state (judge).

Having one image of crime – crime is evil: evil by nature (demonic era before 1700), calculative with intent (classical school @1800), savagery in perpetration (positive era @1900), ill serves the purpose of “understanding” crime (in real terms), but helps tremendously with our “response” to crime (as imagined). The question here is whether we want to fight crime sensibly or react to crime sensationally. The more philosophical issue is whether it is more important to fight crime or to address fear of crime. Here, there is no material differences between political regimes (democracy vs. dictatorship), the people’s thirst for blood (in the hand of the criminals) must be avenged for cultural reasons.

A different way of “thinking” and “feeing” about crime.

Crime (antiquity) and later police (1829, before that Greek) is human invented image and institution to deal with a problem; a problem of living in and with uncertainty (KC Wong).

The “problem” of crime is one of dealing with “deprived expectations” of all kinds (Wong), or “unpredictability” of everyday life, more generally “fear of uncertainty” of which “fear of unknown” is the worse kind. (That is why people do not like to die and flock to insurance. That is also why we have contract.)

Without (meaningful) “predictability” (or certitude (a probability function) of certainty (a state of affair of living) we feel insecure – not in the sense of getting hurt, e.g., car accident, which is definable and imaginable, but insecurity of unknown. The worse kind a future that is unknown is that which is unknowable. The worse kind of unknowable is what Rumsfeld famously said “unknown – unknown”: “[T]here are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don't know we don't know.”

What do people do when they try to fight off insecurity of “unknown – unknown” or “unknowable – unknowable” (Kam C. Wong”)? We pretend to know and treat all crime as one and the same. We use the past knowns through extrapolation (trend study, reason by analogy, educated guesses, imagination) to deal with the future “unknown” and in cases of what is “unknown – unknown” by speculation.

Punishment becomes a handy tool for all kinds of “expectation” problems, we now called crime.

The strategy to secure the future with a fixed image of “crime” and a knee jerk “punitive” response is that it does not deal with the “problem” nor capable of satisfying “denied expectations” in achieving real security.

The way forward is to know how to handle expectations of a future that is not known, and not knowable by extrapolation, imagination or speculation; or, what we know all along: fear of future is a constant – there is more things out there that we do not know than what we know. “There is nothing to fear but fear itself.”

As applied to crime and punishment, this means working on our unrealistic “expectations” of a fixed future (police, insurance etc) but living with realistic “expectations” of an unfolding future (discovery, entrepreneurship, self-renewal).