Rita Panahi begins a recent piece with a magic trick:
This is precisely the type of common sense legislation that the state government should be backing. Why should convicted killers be eligible for parole if they refuse to reveal the location of their victim’s body?
To disagree would be to disagree with common sense… but since when is legal policy built on common sense? Should it be founded upon public intuitions?
In the universe next door, Rita Panahi Prime begins a recent piece with a different magic trick:
This is a legislative proposal that defies common sense and it is appalling that the state government is even considering it. Why should convicted killers be allowed to trade the bodies of their victims for early release?
Parole is not something we can intuit easily, and it throws up a lot of conceptual problems related to the nature of punishment.
Let’s start with some common intuitions about just punishment. Here’s a good one: ‘Innocent people should not be punished.’ What does it mean to be innocent? Everybody, on some level, is guilty of something. Although I’m a very honest person, I have definitely allowed people to believe something that was incorrect because it was to my advantage. I get really anxious if cashiers give me too much change — I immediately have to draw attention to the fact and pay it back. This, I understand, is not common behaviour; people, it seems, are happy to pocket the error in their favour. People speed without getting caught. People park illegally just to run a quick errand. And so on and so on and so forth.
So it’s not innocent people who shouldn’t be punished, but generally innocent people. Or, maybe, we could say not guilty people. An ‘innocent’ person is a person who has not been found guilty of a crime. And then we care less about the ‘factual’ innocence of a person (who is almost certainly guilty of something) and more about the ‘procedural’ innocence of a person. People who have not been found guilty of a crime should not be punished.
Fun fact: that sentence isn’t the same as ‘Everybody who is found guilty of a crime should be punished’ or ‘Only people who have not been found guilty should not be punished.’ We might find somebody to be guilty but think that it is unjust to punish them.
By this point, most people start to look a bit shaky. Is it really true that they think innocence means procedural innocence and not factual innocence? What about if a person who is factually innocent is found not to be procedurally innocent? No! They sometimes say to me, what they mean is that only people who have actually committed a crime should be punished, not merely that they have been found guilty.
At this point, the conversation goes down a very fun path. How do we know if a person really committed a crime? There are rules of evidence which restrict the bringing of particular kinds of evidence. There are rules of procedure which restrict how evidence can be obtained. We might think that the justice system is too favourable towards people accused of crimes, but few people seem willing to let a surveillance state or police state go completely unrestrained in the interests of determining actual guilt.
The final step in this leg of the discussion is the nature of plea bargaining. Should the accused be able to plead guilty to a lesser crime in order to avoid being found guilty of a greater crime?
This is a question which I spend a lot of time pondering. If we believe that people should be punished according to the crimes they have committed, plea bargains are immoral. Either they result in people receiving lesser punishments for their crimes, or they result in innocent people making the strategic decision that they are better off being punished for a lesser crime than risk being punished for a greater crime. People who support plea bargains point to the reality of the legal system: there aren’t enough resources and most people would prefer guilty people to receive any kind of punishment than risk being found not guilty altogether. A common discussion in legal policy circles is whether or not we should incentivise people to plead guilty.
Let’s try another common intuition: ‘people are innocent until they are proven guilty’. I’m currently writing what appears to be eleventy billion words about this intuition, particularly as it applies to particular categories of crime and as it applies outside of the legal framework. Without going down that path, we can cover similar ground to the above: do we mean factual innocence or procedural innocence? But we can also go down the path of adding in agents. People (who?) are innocent (what?) until they are proven (what?) guilty (what?)… and proven by whom?
The common way through this is that people are not required to prove their own innocence. If Mighty Pharaoh of Martopia accuses Andrew Lloyd Webber of crimes against public decency (for Cats), it is for Mighty Pharaoh to provide evidence that Webber is guilty before punishment will be enacted. Indeed, no matter how mighty Mighty Pharaoh is, we consider him restrained from bringing punishment until the threshold is met.
Further, we think it unreasonable to demand that people provide evidence of their own guilt. The Cats example here has failed me because the evidence of his guilt is palpable, but we can imaging that there is some universe where Webber created a secret society of perverts who watched Cats in private. Mighty Pharoah could not compel Webber to prove his own guilt, and we would be troubled if Mighty Pharoah incentivised Webber to do so. Innocence until proven guilty means that the State has to make the case independently; it cannot cause people accused of crimes to incriminate themselves.
Let’s mix this all back into the common sense position about parole. Parole is a process by which people can serve the remainder of their sentences in the community. These are not innocent people being released after serving their punishments; they are people to whom we as a society are showing leniency.
We could (as I do) argue that parole is always immoral. Sentences should be served in full. The punishment should fit the crime, and parole results in a lesser punishment. People who disagree with me point again to legal reality: we need to be able to incentivise particular behaviours. Parole gives prisoners an incentive to behave in social, productive ways and to engage with rehabilitative mechanisms.
Panahi’s position is that we should incentivise people to reveal the location of their victim’s bodies and that the best way to do this is by withholding parole. But this violates a lot of the intuitions that we’ve discussed above. First, it compels a person to admit that they committed a crime, running foul of our intuitions that the State needs to prove the crime independently and not coerce a person into providing evidence of their own guilt. Second, it runs foul of the reality of why people end up in gaol. Did the factually innocent person plea bargain to avoid being found guilty of a greater crime? If so, what body do they have to trade for their parole? Finally, if it is moral to show leniency with regard to the duration of a crime, it seems immoral to make that leniency contingent on things that are convenient to us. Do we start a process of openly providing parole to people who become informants while in gaol?
There is very little that is commonsensical about how and why we punish people. This is especially true when commonsense pulls us in entirely different directions at once.