Trump and the Social Construction of Crime

Fresno Bee, February 23, 2020

Crime is a social construction. While this point has often been made by left-wing scholars, President Donald Trump has brought this idea to life.

The president has accused the criminal justice system of bias. He suggests that prosecutors and judges are engaged in a process that is arbitrary and subjective. The president denounces legal inquiries as witch hunts and hoaxes.

He also calls things he does not like criminal. When Nancy Pelosi ripped up his State of the Union speech, the president said that that was “actually very illegal.” It wasn’t. He routinely suggests that some people should be in jail, chanting “lock her up.”

At the same time, he lets others out. The president called the prosecution of his friend Roger Stone “ridiculous.” He has pardoned white collar criminals, tax evaders and supporters such as sheriff Joe Arpario. Last year, he pardoned a Navy Seal for war crimes.

But before Trump, the social construction of crime had already become obvious. Marijuana and homosexuality were decriminalized. Sentencing reform changed punishments. The death penalty fell out of favor (although Trump wants to bring it back). And sanctuary cities have refused to cooperate with federal immigration authorities.

Some claim a higher power defines crime and punishment. But there has always been a disconnect between moral law and criminal law. And those supposedly transcendent sources of moral law have been reinterpreted.

Jesus was among the re-interpreters. He refused to stone the woman taken in adultery. He offered a radical revision of the old “eye for an eye” punishment scheme, advocating that we turn the other cheek instead.

Not only do the punishments change; what counts as a crime also changes. For a very long time it was not a crime for a husband to rape his wife. It was not until the 1970s that marital rape was considered a crime. Nor was it a crime for a slave owner to rape a slave.

Speaking of slavery, the Bible permits it, as did the U.S. In the American slave system, it was legal to kill your slave. The colony of Virginia passed a law in 1705 acquitting slave owners who kill their slaves, “as if such incident had never happened.” If the law permits rape, slavery and murder, that makes you wonder about the moral basis of the law.

Now, we might protest, those were the bad old days. Our laws are better today. But are they? And how would we know?

Crime and punishment are malleable. They depend upon historical context, geography and jurisdiction. In some countries, blasphemy is illegal, along with homosexuality and abortion. At one point these things were also illegal in the United States. But some Americans argue that abortion is murder. They want to re-criminalize it.

Crime and punishment are defined by the law. But the laws are made by human beings. Over time, the laws change. We hire human beings to enforce these changing laws. Even within the criminal justice system there is room for discretion. And in the case of pardons, the executive power can overrule the justice system.

This may cause us to throw up our hands in confusion and despair. But it can also be empowering. The system of crime and punishment is entirely up to us. Society defines what counts as a crime. Society also determines how crime will be discovered, prosecuted, and punished. We, the people, have the power to determine all of this.

This means that we can get creative, if we want to. Some activists have called for prison abolition. Others are advocating for restorative justice and other alternatives to incarceration. What about using brain science and creative chemistry to deal with deviance?

It’s difficult to imagine what the future might look like. But the history of crime gives us a clue. We can predict that the future will be different. And the president’s attacks on the whole system of crime and punishment makes one wonder whether it’s time to put everything on the table and think it all through again. If crime is a social construction, then it is up to us to figure out how we want to define it and how we want to punish it.

Death penalty ethics

To kill or not to kill? Death penalty debate weighs heavy on us all

Fresno Bee, September 24, 2016

Two rival death penalty initiatives are on the November ballot. Proposition 62 seeks to abolish the death penalty. Proposition 66 intends to make it more efficient. The moral questions raised are complex.

Opponents of the death penalty argue that killing is always wrong. Defenders of capital punishment believe that some criminals deserve death. Between these two positions there is little common ground.


ladyjustice-previewDeath penalty defenders often understand punishment as retribution. Retributive justice is intuitively appealing. The scales of justice are balanced by restitution and retaliation. Thieves should pay back what they’ve stolen. And if you take a life, you owe a life.

Critics worry that retributivism is too closely linked to revenge. Revenge seems to provide emotional catharsis. There is pleasure and power in hurting those who harm us.

Donald Trump tapped into this emotional element this week when he called for “just and very harsh punishment” for a recently captured terrorist. Someone in the crowd yelled, “hang him.”

Death penalty opponents reject vengeful calls for harsh punishment. At the 6th World Congress Against the Death Penalty this year, Pope Francis argued that the death penalty “does not render justice to victims, but instead fosters vengeance.” He continued, “The commandment ‘Thou shalt not kill’ has absolute value and applies both to the innocent and to the guilty.”

Modern executions don’t satisfy vengeful emotions. Lethal injection kills without spilling blood. The modern trend is toward more humane and less cruel punishments. A possible place for common ground is found in the idea that cruel bloodlust is wrong and that suffering should be minimized.

We certainly don’t behead or crucify people – and we condemn other cultures that do. We don’t hold public executions. Crowds no longer mock the condemned on the gallows.

But a more public and bloody execution system might work as a deterrent for crime. Our sanitized, secretive and infrequent executions don’t scare anyone.

If the death penalty worked as a deterrent, it might be justified as socially beneficial. However, research on the deterrent effect of the death penalty is inconclusive. And the death penalty is applied so infrequently in California that any deterrent effect is lost.

There are reasons to be skeptical of the deterrent effect of the death penalty. Violent criminals seem to accept violence. Armed bandits understand that they may be shot while committing a crime. The threat of execution will not deter suicidal terrorists.

Further reflection points toward political questions. For example, some fear expansive and corrupt government power. In a debate about capital punishment with Hillary Clinton,Bernie Sanders said, “I just don’t believe that government itself should be part of the killing.”

Libertarians tend to agree with Sanders about limiting the state’s power to kill. Libertarian presidential candidate Gary Johnson opposes the death penalty because he worries that innocent people may be executed. He has reportedly said, “I don’t want to put one innocent person to death to punish 99 who are guilty.”

Concern about the chance of executing an innocent person is connected to larger concerns about fairness in the justice system. Racial and class-based issues should be considered here. Abolitionists think that the justice system will not fairly apply the ultimate punishment. Reformers want to make sure that the system is fair and just.

In her debate with Sanders, Clinton asserted her trust in the federal court system. She defended the use of the death penalty for heinous crimes and said that she has “confidence in the federal system.”

It may be surprising that Clinton agrees with Trump about the justification of the death penalty. It is not surprising that Trump goes further than Clinton in supporting aggressive policing – and even torture – as necessary for maintaining social order.

Beyond the politics, we should consider higher moral goods. Death penalty opponents extol peaceful virtues such as mercy, gentleness, and forgiveness. But death penalty advocates see retributive justice as required by the ancient law of eye for eye, life for life.

Serious and good people have disagreed about this for millennia. There are compelling arguments on each side. Before voting in November, take time to discuss the issue. And acknowledge that decent people will disagree about capital punishment, as we do about other vexing moral questions.

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Moral Brain-Hacking and Moral Education

Science not enough, ideas and thought needed

Fresno Bee, May 16, 2014

Perhaps the solution to crime and other social problems is to fix people’s brains or dose them with love drugs. Moral brain-hacking might be a cheap and effective way to produce moral people.

Moral behavior appears to depend upon chemicals such as serotonin, dopamine and oxytocin acting in our brains. Paul Zac argues in his book, “The Moral Molecule,” that oxytocin levels are correlated with empathy, trust and love. A squirt of oxytocin can make people kinder and more trusting.

Brain structure also matters. Magnetic resonance imaging suggests that a sense of justice is located in the part of the brain associated with higher-level cognition. Antisocial behavior is linked to brain defects.

Locating moral behavior in the brain — and not as the free choice of an immaterial soul — may require us to rethink traditional ideas about guilt and responsibility, punishment and reward, praise and blame. If we follow the neuroscience, it might make sense to “punish” people by requiring them to take drugs or have brain surgery. Locking criminals in prisons with other people who have similarly defective neurochemistry may eventually seem, well, medieval.

Spiritually inclined people may be dismayed by this materialistic focus. Brain-based discussions ignore the soul and the moral conscience. Neuroscience dusts the angels and demons off of our shoulders, focusing our attention on the space between our ears.

Those who think that consciousness is distinct from the brain have to explain how Prozac, Ritalin, marijuana, and St. John’s wort are able to change experience, mood and focus. The attitude adjustment provided by a glass of wine or a cup of coffee can make you wonder whether there is anything more to the mind than the brain and its chemistry.

Some may feel that this materialistic focus misses the really big picture of why morality matters. If moral experience is reduced to brain science, traditional metaphysical notions of good and evil may be lost. A brain-based view of personality rules out punishment and reward in the afterlife. The move from the soul to the brain involves a radical reassessment of the meaning of morality and of life itself.

The focus on brains does, however, overlook the importance of ideas and education. Even if we admit that experience is based in the hardware of the brain, we still need the software of consciousness — ideas and theories — that allows us to interpret our experience. A dose of oxytocin may be able to stimulate empathy. But empathetic emotional responses are devoid of content.

Ideas and ethical theories tell us how to act on our emotional responses to the world. Does caring for a loved one mean I should pull the plug and let them die — or keep them on life support? Does empathy for murder victims mean that criminals should be executed — or should empathy extend to criminals?

To answer those kinds of questions we need ideas. Pills, potions and powders can only take us so far. The brain’s capacities and responses are channeled by the stuff of thought: ideas about right and wrong, theories of the good life, models and heroes, and the whole range of issues that arise in the context of moral education.

Ideas cannot simply be reduced to chemical signals in the brain. Does that mean that ideas float freely in a world apart from physical reality. There is a deep mystery here. What is an idea like “good” or “evil” made of? Where do ideas dwell? And how do we know them? Those kinds of questions can really blow your mind (or brain or soul?).

Neurochemical enhancement can’t entirely replace moral education as traditionally understood. Religion, philosophy and literature fill the brain with ideas that guide, bewilder and inspire. Neuro-ethical hacking may make moral education easier. But the neurotransmitters cannot tell us whether brain hacking is a good idea. For that we need moral argument and critical thinking.

Neuroscientific enthusiasm may lead us to miss the moral forest as we gaze in fascination at the neurological trees. Some of us could benefit from a chemically induced compassion boost. But a compassionate brain without moral ideas is empty. A moral person is both a brain and its ideas. And those ideas come from good old-fashioned moral education.

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