Punishing causes

”Tough on crime, tough on the causes of crime”, remember? I remember very little of the substantive debate but I do remember that it spurned a debate on the use of non-committing slogans in political speech. The immediate appeal of slogans should not be dismissed as a mere trick, however.

There is a quite obvious and quite relevant issue hidden in the slogan: How does, or should, our approach to crime relate to our understanding of, and approach to, the causes of crime? Presumably our toughness or softness on crime should be modulated on the basis of our perception of the causes in question because clearly, all crimes do not share causal histories and clearly, this matters to how we assign responsibility.

Quite generally, causes are relevant to responsibility and to criminal punishment as punishment is meted out on basis of, and in proportion to, the harm agents cause. A highly valid defense to the allegation of murder is to say that you didn’t cause the person to die. Or, actually, accurately and more precisely: that you didn’t do it. To murder someone is not only to cause the death of another, but to do so while trying to do so.

The most obvious causal component of relevance to responsibility/culpability is the decision. We are condemned for the things we decide to do, and decisions have consequences.  Reasons and considerations are presented to us, or thought up by us, and then we make a decision to act on some of them. We are then held responsible for at least the causal consequences that we had reason to believe would follow. But decisions are not where causal chains end. And while deciding to do something that will cause harm when there is no reasonable amount of compensation is surely blameworthy in it’s most paradigmatic form, it’s not the end of blameworthiness either.

Yet, there are further moral judgments to be made which goes beyond the decision. For instance: what considerations did you act on? How was the case for and against acting presented to you? Was it greed? Was it vengeance? And now the question becomes: can we add to a criminal sentence on the basis of pre-decision causes? We seem to be able to subtract from a sentence on basis of certain causal pre-cursors, such as ignorance or a mental episode. But can we add?

Now to the hate crime context. For theoretical reasons as well as practical ones further down the line, it’s important to distinguish between the reasons for the support of hate crime legislation and the justification of that legislation. My reasons to favor higher taxes may be that I would gain from it in the long run, but that’s not sufficient as justification as tax rates are not in place to satisfy my interests. It does mean, however, that I’m more likely to look for, and find, further reasons for higher taxes.

It’s very likely that support for hate crime legislation is at least in part grounded in the intuition that some pre-decision causes are worse than others. We dislike, and we are right to dislike, prejudices, vengefulness, greed etc. But it is not clear that we should punish on the basis of the moral objectionableness of pre-decision causes. Even when we are somehow responsible for having become bad people, we can’t be punished for being bad people, only for doing what bad people tend to do, and which makes them bad: harm. If there are other justifications, we should identify them. But we should be very clear that our acceptance of those justifications is not wholly founded in our independent, warranted, but legally invalid, moral stance. Or, of course, we must make the case that these pre-decision causes are reasonable grounds for punishment enhancement. Which means much more work.

Two lessons to draw from this:

1)We may maintain that decisions are where culpability starts, but that the picture is more complex then previously recognized. Decisions may be judged as worse not only on the basis of the harm intended, caused or risked, but on the considerations that was deemed sufficient for the decision to be made. To treat a prejudiced view as a decisive reason, then, is worse, for instance, than treating greed as such a reason because it is a worse reasons. Still, we are not punished for this reasons, but for treating it as a decisive reasons. (Leaving, for know, the question whether the cause and/or reason for our accepting this consideration as a (decisive) reason should influence the extent to which we are culpable…)

2) Pre-decision causes are clearly relevant for effective preventive measures. We should concentrate a lot of effort at counteracting them and the most effective means may not be punishment enhancement, or any other means available to the criminal law.

Being ”tough” on causes of crime doesn’t necessarily, or primarily, involve punishing people for having certain beliefs attitudes or dispositions, but effectively counteracting the conditions under which such beliefs, attitudes or dispositions arise.