Comments on: On Skilling’s 24 Year Sentence http://www.lawsocietyblog.com/archives/314 Notes from the intersection of law, society, technology, economics, and culture Tue, 06 Jan 2009 05:13:17 +0000 http://wordpress.org/?v=2.2 By: Matt Wood http://www.lawsocietyblog.com/archives/314#comment-5386 Matt Wood Mon, 30 Oct 2006 02:45:57 +0000 http://www.lawsocietyblog.com/archives/314#comment-5386 Dan Kahan has argued* that imprisonment's widespread public support as a punishment system (as opposed to, say, shaming penalties) can be explained by resort to an expressive theory of politics. As a policy choice, imprisonment benefits from its "expressive overdetermination": it is endowed with sufficiently diverse meanings that a diverse array of social groups are able to find affirmation of their values within it. [Kahan seems to refer to this array of meanings, in the context of political will-making, as a policy's "expressive political economy".] Importantly, Kahan identifies expressive overdetermination as a critical precondition for political consensus. As Hanno has explained <a href="http://www.lawsocietyblog.com/archives/99" rel="nofollow">elsewhere</a>, Kahan proposes that people can be taxonomized according to four basic worldviews: hierarchical, egalitarian, individualistic, and communitarian. Applying these worldview archetypes to imprisonment, Kahan writes: "[H]ierarchists can see it as supplying a delicious form of debasement for those who resist their proper place in the social order; communitarians, a fitting gesture of banishment for those who wrongfully renounce social obligation; individualists, a reciprocal deprivation of liberty for those who fail to respect the liberty of others; and egalitarians, a uniquely democratic metric of punishment for persons who enjoy value by virtue of their capacity for autonomy." (2089) "Hierarchists and communitarians understand that imprisonment degrades and moralizes; they like it for exactly that reason. But these features of imprisonment are essentially invisible to egalitarians and individualists, who by virtue of the expressive richness of imprisonment can tell themselves that prison is really about something else - controlling dangerous persons, deterring harm, or even (the ultimate delusion) reforming offenders." (2090) Giving Kahan the benefit of the doubt (arguendo), a shift in the balance-of-power among worldviews may help explain the surge in lengthy prison sentences that Hanno often decries. Sentences whose primary (perceived) social meaning is condemnation will likely exceed those counseled by more pragmatic goals of deterrence. We might therefore expect a redistribution of individual worldviews (from egalaitarian and individualistic to hierarchical and communitarian) to predate and track the rise in excessive sentences. And we might locate this redistribution in the population as a whole, or in the sub-population of active voters. ------- *Kahan, "What's Wrong with Shaming Sanctions". 84 Tex.L.Rev. 2075 (2006). Dan Kahan has argued* that imprisonment’s widespread public support as a punishment system (as opposed to, say, shaming penalties) can be explained by resort to an expressive theory of politics. As a policy choice, imprisonment benefits from its “expressive overdetermination”: it is endowed with sufficiently diverse meanings that a diverse array of social groups are able to find affirmation of their values within it. [Kahan seems to refer to this array of meanings, in the context of political will-making, as a policy’s “expressive political economy”.] Importantly, Kahan identifies expressive overdetermination as a critical precondition for political consensus.

As Hanno has explained elsewhere, Kahan proposes that people can be taxonomized according to four basic worldviews: hierarchical, egalitarian, individualistic, and communitarian. Applying these worldview archetypes to imprisonment, Kahan writes:

“[H]ierarchists can see it as supplying a delicious form of debasement for those who resist their proper place in the social order; communitarians, a fitting gesture of banishment for those who wrongfully renounce social obligation; individualists, a reciprocal deprivation of liberty for those who fail to respect the liberty of others; and egalitarians, a uniquely democratic metric of punishment for persons who enjoy value by virtue of their capacity for autonomy.” (2089)

“Hierarchists and communitarians understand that imprisonment degrades and moralizes; they like it for exactly that reason. But these features of imprisonment are essentially invisible to egalitarians and individualists, who by virtue of the expressive richness of imprisonment can tell themselves that prison is really about something else - controlling dangerous persons, deterring harm, or even (the ultimate delusion) reforming offenders.” (2090)

Giving Kahan the benefit of the doubt (arguendo), a shift in the balance-of-power among worldviews may help explain the surge in lengthy prison sentences that Hanno often decries. Sentences whose primary (perceived) social meaning is condemnation will likely exceed those counseled by more pragmatic goals of deterrence. We might therefore expect a redistribution of individual worldviews (from egalaitarian and individualistic to hierarchical and communitarian) to predate and track the rise in excessive sentences. And we might locate this redistribution in the population as a whole, or in the sub-population of active voters.

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*Kahan, “What’s Wrong with Shaming Sanctions”. 84 Tex.L.Rev. 2075 (2006).

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