Judge Posner Rationalizes Punishing the Poor More

I very much enjoy reading the joint blog of economist Gary Becker and Judge Richard Posner because sometimes you happen upon a gem of rational choice reasoning. A recent pair of comments (only Posner’s is linked) touch on the idea of individual responsibility and what it means, in particular in the context of the housing collapse and proposed bailouts at various levels. Posner takes this difficult topic and spins it into a defense of harsher penalties for the poor:

The Becker-Posner Blog: Individual Responsibility–Posner’s Comment:

Criminals will sometimes try to place the blame for their crimes on a bad upbringing. That is nothing new. A criminal (or his lawyer) will make any argument that might reduce his sentence; he would be irrational not to do so. And it is plausible that a bad upbringing, along with a low IQ, increases the likelihood that a person will become a criminal, by reducing his alternative legal opportunities. But as Becker points out, most people with a bad upbringing (and equally most people with low IQs) do not become criminals. This has, to my mind, a practical rather than a moral significance. It suggests that the threat of punishment can deter even a person who has had a bad upbringing. So by adding that threat to the considerations that a person will weigh in deciding whether to commit a crime, society can reduce the crime rate. We may even want to punish the criminals with the bad upbringings more heavily than other criminals, in the belief that they can be deterred only by a threat of heavier punishment. On this approach to crime and punishment, we punish criminals not because they “freely” chose to do bad things, but because by punishing them we can at tolerable cost reduce the prevalence of activities that generate net negative social costs. We make people do the “right” thing not by appealing to the exercise of their free will but by increasing the cost to them of doing the wrong thing. [Emphasis added.]

Is it just me, or does this read like a justification for mandatory minimums, harsher penalties for crack than powdered cocaine, etc.?

Now, to step back for a second, there are some real problems with any argument around the idea of individual responsibility. How and when we count a choice as freely taken as opposed to coerced, for example, is a messy problem that I believe does not permit an easy solution. Rational choice offers a nice way out of this, in my reading of it, by asserting that all choices are made under constraint (opportunity costs, budgets, promises, threats, etc.), and we can simply decide what kinds of constraint we consider as valid reasons to take an action (e.g. almost any action is justified when the alternative is being shot, but when the alternative is going without your morning latte we find that justification wanting). Basically, we shift the question from when is an agent responsible to when do we choose to accept a constraint as binding. That is, we probably do not want to live in a society where a person robs a store to pay for their morning latte but we probably are ok with a society where a person commits a minor crime because of a large threat. We do not punish a person for committing the minor crime under the major threat because we do not actually find their overall behavior to be bad for society. On the other hand, whatever agent or organization made the threats needs to be dealt with.

But how does this argument scale up to a discussion of poverty, abuse, or retardation? That’s messy (of course), but it seems to me that you have to put the whole of society on trial for creating a system in which, for example, 20% of black men served time in prison by their early 30s (Petit and Western 2004). Yes, Becker and Posner are right that not every black man has committed a crime and served time, but the intense prevalence in certain groups (young, black men who have not attended college) has to been seen as a structure of the system and not a simple moral failing of individuals. What’s wild to me is the use of this rational choice reasoning to justify punishing the poor differentially over the rich, rather than (say) to justify programs to reduce disparities in upbringing (through better public schooling, say). Also, how strong is the evidence on deterrence anyway? I am by no means a criminologist, but I did not think the link was particularly strong between harsher enforcement and lower crime rates. Anyone?

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