Abstract
In the polarized present, criminal justice reform emerges as the rare issue transcending our quotidian politics of invective. Wardens and reform advocates, district attorneys and civil liberties lawyers, police chiefs, and their critics—people crossing multiple ideological divides—agree in condemning America’s dysfunctional criminal justice system. The United States may at last be moving away from a “lock ‘em up and throw away the key” (or as one gubernatorial candidate put it during the late 20th century’s capital punishment frenzy, “fry them ‘til their eyeballs pop out’”) approach to justice to one that intermittently professes homage to fact-driven research and analysis. Pirates, Prisoners and Lepers makes an invaluable if problematic contribution to this reform debate.
This is an ambitious undertaking. It attempts to infer from a series of absent law, natural experiments, occurring over many centuries and contexts, a sufficient understanding of human nature to make concrete recommendations about modern U.S. criminal justice system reform ranging across policing, the courts, and prisons. Examining “patterns … across strikingly different situations,” the authors find universal patterns informing current debates on penal and justice policy. They include “[b]arricaded prisoners, crash survivors, gold miners, Eskimos, pirates, lepers, hippies, and many others” showing common inclinations about justice. From these natural experiments, it asserts that “we are not the selfish devils that Hobbes assumes, but neither are we selfless angels either” (p. 10). We seek justice even when the effort imposes steep costs. Similarly, we abhor injustice, particularly when the perceived injustice flows directly from the criminal justice system. These universally held intuitions eschew overtly utilitarian outcomes; we will, according to the authors, grade wrong and the punishment merited thereby, intuitively and collectively. We do so irrespective, for the most part, but not invariably, of the consequences such as deterrence, social or economic costs.
The authors perhaps place too much emphasis on evolutionary imperatives thus potentially overstating the universality of their thesis. One may properly question whether human justice is as uniform, or as evolutionarily derived, as the authors apparently suppose. As the moral philosopher Tamler Sommers in A Very Bad Wizard (discussing recent social science research) has shown, not everyone accepts the notions of justice embedded in a complex civilization. No matter. From whence these traits derive is not as important as the fact that most humans appear to exhibit the sorts of behaviors and perspectives on justice indicated by the naturally occurring situations sketched in this monograph. Moreover, whether or not these traits are universal, it suffices that they appear persistently to flow across enough cultural, historical, and class divides reasonably to inform current practices.
From these natural experiments, the authors conclude “[w]e humans have flourished … primarily because of our social nature and inclination to cooperation” that is possible “only when a group establishes norms against basic wrongdoing and exercises a system of punishment to enforce those norms” (p. 239). However, the authors caution that failures of punishment can err by being overly harsh as well as overly lenient—that in order to maintain its moral credibility, a criminal justice system must both do justice while avoiding injustice.
Some of the author’s recommendations for improving the justice system appear relatively unexceptional and salutary. There are good reasons to think that so-called three strikes legislation and other penalty enhancing laws result in overpunishing offenders and that setting up commissions to rank order offenses so as to bring down overly harsh penalties would be beneficial. Other suggestions, such as changing the exclusionary rule or double jeopardy restrictions, need more analysis than the authors provide. We need to know what might replace rules designed to inhibit judicial, police, and correctional overreach before we commit to jettisoning them. The authors admit this but, beyond pointing to the experience of other countries, provide little specific guidance. Still, it remains valuable to critique a practice even if one does not propose fully formed alternatives.
The argument is particularly persuasive where it argues against an excess of punishment as can occur with felony murder rules, three strikes legislation, mandatory minimum sentences, zero tolerance policies, and other sentence enhancement rules. Eschewing reliance on data collection coupled to analysis by algorithm, the authors provide heart-breaking examples of intuitively unjust sentences. They then analyze the human and social costs of unjustly harsh penal policies.
Criminologists, armed with sophisticated methodologies, have repeatedly demonstrated that overly harsh punishments do little to deter, incurring the spiraling costs of the carceral industries while intensifying the loss of human potential. Peer-reviewed, data-driven research remains invaluable. We cannot rationally proceed without it. However, even the best scholarly works reach only a handful of specialists, and their bloodless pronouncements rarely excite the passion that must also inform policy making. That is where this skillful narrative parade seems most relevant. We remain a story-telling species and this book’s strength is to turn the science into relatable stories. They give concrete form to abstractions infusing the debate with moral and emotional force—an everyman’s criminological primer. Moreover, while natural experiment, quasi-empirical methods predominate these stories supply a postmodern whiff, allowing Pirates, Prisoners and Lepers to reach across theoretical divides. Criminologists from a variety of perspectives will find much to like in this work.
This beautifully crafted, meticulously documented and exquisitely argued book is problematic, not because it is wrong, but because it seemingly (and unnecessarily) tilts at a nonexistent problem. The initial contention revolves around the notion that progressive academics advocate the elimination of all punishment. While there may well be a few outlier academics making such claims, there cannot be many. Pirates, Prisoners, and Lepers thus begins with a straw man feel. Moreover, its reliance on Lawrence Kohlberg’s patriarchal psychology provides license for this narrow focus. It thereby sidesteps the critiques of critical criminology, feminist, race, and indigenous theorists. One may thus question whether these proposals target the limits of justice reform or simply move pragmatically down a longer trail.