Torture instead of prison

Leo Katz has been blogging over at the Volokh Conspiracy this week. He's written a book called Why the Law Is So Perverse, and Volokh is giving him the opportunity to pimp it by writing about subjects covered within it. Today, he posted an entry entitled The Problem of Voluntary Torture in which he lays out the following (imaginary) proposal:

Imagine the following proposal by a wild-eyed legislator for making our criminal justice system more efficient. “The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution. But prison happens to be a very expensive pain delivery system. There is a much cheaper one which for some reason we haven’t really adequately considered. Instead of making a prisoner’s life moderately painful for a prolonged period of time, which is what prison does, why not just make it intensely painful for a very short period of time: a lot of pain, but for a short duration—that should give us as much retribution and deterrence as before but at a fraction of the cost.”

He then gives his own opinion of it:

I view the deal the legislator is suggesting we offer each prisoner as the quintessential win-win transaction. Everyone is better off. The prisoners (though only marginally so, to be sure) and society at large which now has to pay only a fraction of what it used to have to pay for deterrence and retribution. 

Nevertheless, like most other people, I would not for a moment contemplate seriously adopting the legislator’s proposal. The question is why?

In answering his own question, he assumes the win-win nature of the proposal to be a given and then argues that there are valid reasons for certain kinds of mutually beneficial arrangements to be prohibited including "force or fraud or incompetence or bad effects on third parties", none of which, he admits, are applicable in this case. Ultimately, he concludes "that some other as yet unidentified reason must be at work here". He, of course, will explain this in another post or, for the impatient reader, already does in his book which the reader is invited to purchase.

First, Mr. Katz' belief that this proposal, despite his reticence to implement it, is a win-win is spectacularly incorrect. Given his starting point, the current prison system, it's not hard to see why he went wrong. Society already already pays a great price to imprison criminals. According to the Bureau of Justice Statistics, the U.S. spend almost $75 billion per year to house inmates. States vary widely on costs, but with the prison population hovering a little under 3 million, the average is just over $23,000 per inmate per year. Just imagine if instead society tortured these individuals mercilessly for a few days or a week or even a month! If the costs scale linearly, then society would pay less than $2,000 per inmate per incarceration, and surely torture would provide enough deterrent to keep prisoners from committing their crimes again.

The obvious problem with this is that torture is not simply a physical act that ends when the pain subsides. It is also has psychological components, and both of these have long lasting effects. Nor are these effects limited to the recipients of this torture. Imagine being an employee at a facility that offers this type of "correction". It would be like watching the Saw movies back-to-back-to-back for at least 8 hours a day, 5 days a week, only the characters are real people, and there is no way to turn off the movie. Employees of such a facility would, in the end, suffer just as much -- probably more -- than the prisoners themselves. Imagine further those actually charged with carrying out the torture as a regular profession. We would literally have to find the worst of the worst of society -- worse than the prisoners themselves -- train those people to become perfect in their craft, and then pay them to carry out the most heinous acts that one human being could commit against another. That, I submit, is not a society.

Exposing the sheer insanity of this proposal has probably been a waste of time given that even Mr. Katz is against it. But the fact that it is even brought up is incredibly ironic, given the reaction to the idea of torturing prisoners. Mr. Katz, like the rest of the population, doesn't fully comprehend the nature of the prison system even though he mentions it a number of times in his post. It is so ingrained in most people's minds that they don't even see it. Look back to the "wild-eyed" legislator's first words:

“The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution.

The purpose of the prison system is to punish, and "the point of punishment is pain". If we accept this premise, then society is already engaging in torture of a more mild variety. A variation on an old joke springs to mind:

A: Should society imprison criminals?
B: Absolutely.
A: Should society torture criminals?
B: Absolutely not; what kind of society would that be?
A: We've already established that; now we're just seeing how far it will go.

Back to the legislator's words, the point of punishment is pain and the point of pain is deterrence and retribution. Deterrence is well and good, but the fundamental problem with the prison system is the retribution. When someone commits a crime, the justice system metes out retribution. Who benefits from this retribution? Only the justice system -- and, to an extent, the prisoner -- benefits. The victim doesn't benefit in any tangible way. Whatever damage may have been done is not repaired, nor is the victim compensated (over and above the actual damages) for the  "inconvenience" of being victimized. Nor does society benefit since society has to pay for the trial and incarceration of the criminal. Furthermore, it has to deal with the effects of prison on the criminal (no marketable job skills, inability to function in the "real world") when the criminal has finally served his/her time and is released. But the justice system benefits as money must be poured into it to house an ever growing number of inmates. And while incarceration is certainly no picnic, the incarcerated "enjoy" 3 meals, a bed, and a roof over their heads at the victims' expense.

What if, instead, the criminal justice system focused on restitution instead of retribution? First, a number of crimes would simply disappear. If police picked up a prostitute, to whom would he/she pay restitution? In order to answer that, we would have to pinpoint the damages caused of which there are none. The same goes for someone getting high in his garage. Second, victims, instead of the justice system would be compensated for the commission of a criminal act. This is obviously straightforward in the case of crimes involving money or things that can easily be assigned a monetary value. The victim is repaid his loss plus some extra as compensation for the inconvenience and to serve as deterrence of future crime on the aggressor's part. It seems less straightforward in the event of non-monetary damages like physical violence, but this should not be so. Society has already decided how long a prison sentence should be based on murder, manslaughter, physical violence, etc.; it is not a far leap to think that money could be substituted for time. And what of failure to abide by a sentence? Imagine if when someone refused to obey the law and by extension punishment for breaking it, society simply refused to extend the protections of the law to that person? This is what a criminal justice system in a voluntary society, one without an entity granted the legal ability to use force might look like.

It's legal because we say so

Former President Bush is making the rounds on television promoting his new book. In an interview, he defended his view that waterboarding is legal because his lawyers told him that it is. (The quote is at about 0:30.)

This argument is a form of legal positivism which basically says that something is legal or illegal because the law says (or doesn't say) that it is. It ignores any kind of moral connection with the law and whether or not the law is "just". It also implies that juries do not have the power to judge the law as well as the case being tried, something that the founding fathers explicitly envisioned that our system of justice would contain. This argument, in my opinion, is dangerous. It supposes that the government is right because it says that it is right. The idea is anathema to the very basis of the U.S. Constitution.

In spite of the legal "go-ahead" Bush received, though, torture is still a legally tenuous undertaking. The memo authorizing torture written by John Yoo and Jay Bybee was declared legally defective by Bybee's successor, Jack Goldsmith, in 2003. When Goldsmith was forced from office by the administration in late 2004, his successor re-declared torture to be legal. After Bush left office, the Department of Justice again declared 18 USC 2340-2340A to be in effect and torture to be illegal. Note that during the entire Bush administration, that portion of the code was in full force. Bush simply had legal opinions stating that what he was doing was not torture. I think any honest person has to admit that waterboarding plainly falls within the definition(s) of torture contained within 2340. It's telling that only the Bush administration has attempted to get around those sections in U.S. law and even then, it could not agree completely on the legality of doing so. It's also worth noting that the Supreme Court, in Hamdan v. Rumsfeld, ruled that enemy combatants were subject to the protections of the Geneva Conventions. It would appear that the legality of torture is not tenuous after all; it's plainly illegal.

Here are some things that I think should be considered by anyone defending the use of torture: Is torture effective? If it is, why isn't it used more often or domestically? Does torture put more people in danger (via the creation of new enemies) than it protects? If so, isn't torture bad economic policy as well since it further drains resources (via the military efforts in furthering the "war on terror") that could be used for more productive means?

Finally, I'm willing to accept the possibility that one can find the use of torture morally justified in the perceived protection of others. If torture is moral and right, however, why won't those engaging in its use stand up and declare that what they did was right and allow themselves to be judged by those in whose names they supposedly acted?

Free speech, alive and well

I noticed the 'crawl' along the bottom of the TV screen this morning mention that NPR had fired Juan Williams over some comments that he had made. When I was able to get to a computer, I found a link to this story in my RSS reader. I thought it was fitting that the story came from Fox News since Mr. Williams is a regular contributor to Fox and his fateful comments were made on a Fox program. The linked story cites this quote as the reason for the firing:

I mean, look, Bill, I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on a plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they're identifying themselves first and foremost as Muslims, I get worried. I get nervous.

Mr. Williams's first mistake was prefacing his comments with "I'm not a bigot." Whenever someone prefaces a comment with, "I'm not X", at best, it means that he/she fears that his/her comments will be interpreted so as to paint him/her as X and, at worst, that that person really is X. It's sort of the same way that the phrase "with all due respect" is interpreted as "I have no respect for you".

I have to admit, though, that I don't really see what the uproar about this particular comment is all about. The September 11th attacks were carried out by Al-Qaeda, a militant Islamic group. The Christmas Day bomber and the Times Square bomber both cited their religion as reasons for their actions. The U.S. continues to agitate Muslims around the world with its continued presence in Iraq and the war in Afghanistan in addition to indefinitely detaining and torturing people without charges when it is not just killing them both on and off the battlefield. In light of those actions, it seems reasonable to expect further violence to be attempted, if not perpetrated, against the U.S. by the very recipients of this U.S.-style democracy. I'm not sure that being nervous about flying with a Muslim is entirely irrational.

Glenn Greenwald takes up the case against Juan Williams this morning. In his article, some more context is provided for Mr. Williams's comments. Immediately prior to the earlier quote, Mr. Williams said this:

Well, actually, I hate to say this to you because I don't want to get your ego going. But I think you're right. I think, look, political correctness can lead to some kind of paralysis where you don't address reality.

This was said in response to Bill O'Reilly's "Talking Points Memo" which had aired just previous to Mr. Williams's comments in which Mr. O'Reilly had said:

The world is on edge because millions of Muslims accept violence and enable jihad. In order to correct the economy and the terrorist threat, those [referring also to the fact that private businesses are not hiring] things must be understood and stated.

These two statements properly deserve all of the outrage, in my opinion. Millions of Muslims do not accept violence and enable jihad. The U.S. government, itself, says that there are probably less than 100 Al-Qaeda members fighting in Afghanistan. It admits that many are probably hiding in Pakistan, but even being generous would probably place the total number under 1,000. Muslims make up almost a quarter of the world's population. If they all really supported violence and jihad, even if merely millions of them supported it, they would have destroyed the U.S., whose military only numbers about 1.4 million, quite decisively a long time ago. In fact, most (the percentage of "radical" Muslims is almost infinitesimal, but still prevents one from saying "all") Muslims are peaceful, preach peace, and abhor the violence perpetrated in their religion's name.

I'm not really sure how I feel about Juan Williams being fired by NPR. To be honest, I don't care enough to try and decide. He may have been a good reporter, but I never cared too much for his opinion pieces on various Fox shows. What is interesting to me is the outcry from the political right that his free speech rights are being violated because NPR gets a significant portion of its funding from the federal government. (Funny, that in this instance, they are, all of a sudden, civil libertarians.) Eugene Volokh contends that acceptance of government funds does not, on its face, make one a government actor and therefore obligate one to protect the free speech of others. I tend to agree. To argue the opposite is to open up a Pandora's box of (further) government intrusion into private affairs. As Mr. Volokh reasons, there is nothing preventing Congress from attaching strings to funds that it allocates (which it has not done in this case), but I would argue that Congress shouldn't be allocating funds to private businesses in the first place.

Gold, subsidies, and syphilis

There were a number of news stories that caught my attention today, and I decided to just lump them all into a single post. I'm sure at least two of them will get better treatment in the future.

Gold

Gold reached another high yesterday against the the U.S. dollar. Many seem to be blaming the weak dollar and actions by the Federal Reserve. The Fed over the last few days and weeks has been hinting that it may embark on another round of quantitative easing or QE. Wikipedia has a pretty good explanation of QE, but in the most basic terms, the Fed is preparing to print more money. Lest you think that the rise in gold is a strictly U.S.-related phenomenon, take a look at this chart. Inflation and/or economic troubles/concerns seem to be widespread.

Subsidies

Yesterday, I was able to catch various pieces of Marketplace on NPR while driving through the hills. The station cleared up enough for me to catch this particular piece. The government, as part of its "stimulus package" has been giving money to private businesses to induce them to hire people. It sounds like a good plan, but here is the problem: the government is distorting the market. By providing subsidies, the government is causing businesses to hire and expand because there is no financial risk to not doing so, not because the economy can actually support that expansion.

I have a number of problems with this, but let me just leave you with this thought: If this policy is good for the economy, why not keep it going?

Syphilis

For those who didn't know (and I have to include myself in that group), the U.S. government deliberately infected Guatemalan prison inmates with syphilis back in the 1940's as part of an experiment to test the effectiveness of penicillin in the prevention of the disease. Well, yesterday, Health and Human Services Secretary Kathleen Sebelius and others issued an apology for U.S. participation in those experiments. Perhaps these people can expect an apology sometime around the turn of the next century?

"Enhanced" Interrogation

For those who didn't immediately notice the timestamp, it's about 5am on a Saturday morning. I've been laying awake for about an hour because I finally fixed a bug at work, and now I'm excited about getting back into work on Tuesday and testing out some more code. (Sick, right?) That's not why I decided to sit down and write this morning, though. I've also been thinking about a couple of blog posts I read yesterday by a friend of mine and his brother regarding enhanced interrogation a.k.a. torture.

I read them both quickly on my iPod yesterday, so feel free to correct me if I'm wrong on this, but the first takes the position that torture works but is wrong on moral grounds. The second argues also that it works and is morally justified when used in defense/preservation of the greater good. While I couldn't disagree more with the second, I was surprised to see anyone arguing that torture works in the face of the news reports of late.

I'm reminded of Matthew Alexander, a pseudonym for an Air Force interrogator, who came out very strongly against torture in an op-ed for the Washington Post back in November of last year. In it, he details his experience using (or really, not using) torture during the course of his work. It is a worthwhile read, but his main points are a) torture has a spotty record of producing good intelligence, b) traditional interrogation works much better, and c) our use of torture does not deter our enemies; in fact, it emboldens them. I'm not now, nor have I ever served in our nation's military nor have I had the opportunity to employ "enhanced" or traditional interrogation methods on anyone, so any pontificating I do here about whether or not I agree or disagree with what Matthew Alexander says about the efficacy of torture would be pointless speculation (as is much of what you see on television with respect to this topic).

While I can't take on the efficacy argument directly, I would like to pose some rhetorical questions about torture to make you, the reader, think:

• If torture is used, how does one know that "good" intelligence has been obtained vs. "bad" intelligence given simply stop the torture?
• If torture works, why isn't it used more often or even domestically?
• If there is no "good" intelligence to be obtained, is the use of torture to find that out still morally justified?

I think the last point is central to this debate. The "morally justified" argument leads us down the path to torture anyone at anytime based simply on the belief that they have information that can preserve/defend the greater good. Pay attention here: whether or not there is "good" intelligence to be obtained cannot be known until after the interrogation.

My argument then is simply this: If we are willing to torture innocent people, there is no greater good to defend.