I took my first look at the Law & Society Blog today, and it is a clear winner. This brilliant post by Hanno Keiser, on a 200 year sentence for possession of child pornography in Arizona, is just a brilliant display of what blogging can be: deep, eng…..

However, won’t others become aware of Berger’s case? Won’t others be terrified into obeying the norm of not possessing forbidden images, because Berger’s fate could then be theirs? To be sure, ancient punishments – eye-gouging – could achieve much the same effect. Would a better system be something like Panopticon-style internet surveillance, that, say, the NSA could be watching?

See, the trouble is that if a life sentence is (much) too harsh, what else would be appropriate? Toward the more non-violent end of the spectrum, should we place Berger instead into a kind of Panopticon?

“In the criminal law context, the law does not only capture a society’s sense of moral condemnation, but also and more importantly for a free society, it imposes limits on what a government can do to the offender.”

But in the context of the working law in Arizona, is that much the case? After proportionality really only playing much of a role, really, in capital cases, it’s difficult to say that a non-capital sentence is disproportionate to the permissible range of punishment. We’re in the age of ‘three strikes and you’re out laws’, which can actually be ‘one strike and you’re out’. In my own jurisdiction, even during rather more favorable times, the onerous Rockefeller Drug Laws were upheld; see Carmona v. Ward, 576 F.2d 405 (2nd Cir. 1978).

One of the lines in that case is this: “The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment.” I wonder if that allows judges, Pilate-like, to wash their hands of all this – if it removes the separation between law and morality. My feeling is toward an affirmative response – that is how normal and abnormal (or moral and immoral, if you like) have come to replace legal and illegal. The judge sits at the control panel, but as in the Milgram experiment, she is directed by a superior and is said not to have any responsibility for the sentence. The man in the lab coat or the legislator in his three-piece suit will take the responsibility.

Sure, this sentencing seems completely disproportionate to the crime. But I find it very, very difficult to translate crimes qualitatively into proportional sentencing at all, which makes it all the more difficult to enter into this territory armed with anything besides intuitions. The crime and the sentence are apples and oranges; a crime doesn’t intuitively equal x number of years. If proportionality in this sense does exist, it is hard for me to see how.

Is possession of child porn worse or better than rape or assault? Well, it is trafficking in material which is indirectly linked to the production of rapes and assaults. Analogously: let’s say that there’s a kind of BDSM fetish that involves involuntarily raping and assaulting an adult person and recording it for sale; the person who buys the tape, is akin to the voyeur pedophile. Does the assault voyeur deserve better, worse, or equal sentencing than the one who actually produces the assault? At worst, equal, it seems. Yet by the figures cited, the minimum for possession of child porn is 34 years, and actual sexual assault of a minor is 20 (which is just lunacy, if true).

But there’s another important question. Does one attribute the discrepancy to the excessive treatment of child porn owners… or a relaxation of punishments of sexual assault on minors? I’m very much tempted to say the latter.

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It is easier to talk about what’s necessary than what is proportional (and we can do so, I think, without ever leaving consequentialist grounds). First, as Hanno notes, it’s fairly clear that the real targets are, and ought to be, threefold: first, to rehabilitate; second, if rehab is impossible, to protect innocent civilians; third, to hold a collective (or network, or aggregate) of persons ultimately accountable for the things they do, simply by making it impossible to do (thus dispersing the group). Without the first option being tried, the rest ring hollow.

The particular of the case which probably motivated the excessive sentence – the moral hatred — was the fact that he was a schoolteacher, and in a way, violated an unwritten law and duty, the duty of proper stewardship over his pupils; and, thus, violated a kind of trust in a most horrifying manner (esp. for the parents). But if this is of legal significance, then it ought to be a law of its own. Packaging the greivance into a separate crime seems unjust.

Berger won’t get any notice, of course, by anyone. Only the virtuous will plead on behalf of the guilty without telling lies; and only the popular have a chance in hell of succeeding; which is a hell of an uncommon combination. Maybe a more keen awareness of the unwritten laws being violated would allow the judges to channel their intuitions more productively. Or maybe they just won’t care.

2. On foundational matters.

While I agree with the thrust of Hanno’s conclusions, I’m not entirely comfortable with how he gets there. I have two worries: one which is probably typical of me, and one which is novel.

The first worry involves the following segment of “The Three Dimensions”, mentioned above: “So long as the loss of the criminal’s freedom is traded off against gains in the
protection of everyone else’s freedom, consequentialist accounts provide an appealing strategy of vicarious justification. But once we require that for complete justification freedom must not only be realized for everyone else but also in the person of the criminal, a more sophisticated and inclusive strategy is required.” I would describe the latter as a kind of optimizing consequentialism, and the former as a kind of satisficing consequentialism. A utilitarian (say) would jump for joy at the prospect of improving even further the state of affairs (within the context of the greater state of affairs etc), including the welfare of the criminal (which presumably would require rehab, etc.) This arguably would eventually free the criminal of the burden of being socially ostracized (though that line of justification, while being true, sounds somewhat Machievellian).

My second worry is the following: “Another requirement for justifiable punishment is that
the criminal must not be expelled from society into a natural state”. This seems to forbid exile, let alone deportation. Yet that seems like a just (albeit perhaps inefficient) response to someone who refuses to abide by law. If there were such a thing as a social contract, it would be an appropriate punishment for those who refused to enter into it in the first place.

Moreover, what is a “natural state”? That’s been a puzzle since Hobbes, but various thinkers have emphasized different aspects. For Hobbes, the sovereign was in a state of nature, because he was outside of the social contract; but it is bizarre to describe a tyrant on a throne of gold as being in a natural state. And, taking that criterion (but flushing the rest of Hobbes’s beliefs), we might say that the political prisoner is in a state of nature, because he/she has dissented from the society in which they live; in which case it would seem that the prison itself is that sort of exile into a natural state.