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"Social Science is to Explain; Courts are to Judge."
James Q. Wilson presents, yet again, a very interesting social science treatire on our current dillema in jurisprudence. It is important to note that Wilson is a neoconservative, and by that I mean he believes the state can cultivate certain attitudes, mores, beliefs, and behaviors in the population through a series of incentives that will guide the behavior of particular individuals. Thus, one of the most important things for a state is to provide incentives -- a clear, moral and legal code that will influence the behavior of the general population. Wilson argues, and to which I agree, that when the law is unpredictable, and the chance of escaping the laws' penalties are reduced or absent, crime will increased. This became true in Britain. Now, to the larger point brought about in Wilson's book: social science is to explain; the law is to judge. The problem, Wilson argues, is that recently we have blended the two. While the general population wants us to clamp down on criminals, juries are providing quite leniant sentences. How is that possible? Rather than blame the juries, Wilson explains how this is possible. The main reason is that our court system has moved away, although slowly, from an objective standard of law -- one in which the question is whether the defendent did (or did not) committ the crime, to one where we analyze the reasons, motivations, thoughts, ideologies present in the person who committed the law. By doing this, we encourage juries to be far more leniant--because instead of their judging the question: did he do it or not, they are trying to analyze all the information based on their own knowledge and "expert" testimony, and thus they rationalize lesser sentences based on their own prejudices. Thus, they substitute the objective law that actually exists for their own feelings. This may be well and good in the short term, Mr. Wilson argues, but what happens when the precedent for these kinds of decissions develops and we get verdicts like the first Menendez brothers trial, in which the jury was deadlocked, even though it was clear that both brothers had killed their parents in their sleep and were clearly not threatened at the time. What happens is right. Anyone who fails to read Mr. Wilson's book misses out on knowing where our current actions are taking us. And Wilson does provide many informative solutions to this problem, such as having court-appointed experts and judges explaining the facts in the case among other ideas! BTW, I had the privilage of meeting James Q. Wilson, a recent recipient of the Presidential Medal of Freedom, which was awarded to Mr. Wilson by President George W. Bush. -- Michael Gordon
Useful Contribution
This is a good contribution to a usually muddled discussion. I think that even people, like myself, who disagree with most of Wilson's attitudes toward criminal justice should agree with most of what he says here.
Wilson favors a vocabulary of religion and traditional philosophy and displays a certain longing for English Victorian traditions. He has nothing to say, though the opportunity couldn't offer itself more starkly, of attempts that might be made, and made at less financial and human expense, to prevent crimes from occurring through non-punitive means like education, the
elimination of poverty, help for drug and alcohol abusers, attempts at reconciliation of disputes, banning handguns, improving pop-culture, etc. Wilson is not disturbed by America's extreme rate of incarceration, and slants his figures to minimize it. (For example, on p. 4 he says that Americans' belief that our courts are "more likely" than other nations' to excuse an offender and to moderate a penalty is "right" because an offender's chances of going to prison are "about the same" as in four other countries.) Wilson suggests that we may imprison so much because our crime rate is so high, and that our crime rates (in certain ways) may be so low because we imprison so much. Obviously an opposite case could be made with exactly equal plausibility: our crime rate is high despite or because of our culture of incarceration, and we incarcerate despite low crime rates (and because of factors like political cowardice and financial profit for prison companies).
Wilson favors the best science in court rooms, but takes for granted certain powers of deterrence for which there isn't any evidence of that quality. Wilson also speaks of "deterrence and retribution" without explaining the latter term at all. Wilson seems (bottom of page 4) to think that it is good to imprison based on a past record, though on pp. 90-91 he cites a study
showing that juries vary their sentences radically based on records, on psychological testimony, and on the likeableness of a person - things which Wilson, rightly, I think, complains are largely irrelevant. (Though I don't expect to hear him questioning the use of juries.)
Wilson also has relatively little to say about the horrors of our prisons as reported by many human rights groups. He describes inhumane punishment as a thing of the past. And he dwells little on the possibility that some acquittals that have been labeled cases of abuse-excuse may be jury nullification on the basis of disagreement with laws and/or punishments. In two instances Wilson does show that he is aware of the prevalence of this sort of thing (pp. 77, 110).
I am obviously coming at these matters from a different perspective than Wilson. But I agree with his main point and take it to be an important one. There is a difference between explaining the causes of a crime and dealing with that crime in a court of law. An explanation is not necessarily an excuse, and vice versa. I even think that Wilson is right in those cases
where some readers will, no doubt, call him sexist or racist. I do not think that past abuse of a wife justifies a wife's killing a sleeping husband. I think that treating a woman as helpless is precisely NOT feminism. I would even combine Wilson's dismissal of the alcohol excuse with his dismissal of the female excuse and say that, yes, on occasion drunk women willfully have
sex (though, of course, a drunk woman can also be raped).
That said, I think that Wilson could make his case a little better. The abuse-excuse is part and parcel of the same way of thinking that convicts criminals in America, a way of thinking from which Wilson does not attempt to escape. This thinking might be called anti-consequentialism. It is sentimental and backward-looking. It may lean toward vengeance or sympathy, but it does not aim at reducing crime and crime's damage in the future. It
does not take seriously goals of restitution, reconciliation, rehabilitation, protection, or even deterrence (which needs to be studied and at least guessed at, not just assumed). Wilson approves of some moderate degree of sympathy and vengeance, but not of what he sees as their extremes. This is different from treating them as irrelevant in a court of law and productive both of the excuses that bother Wilson and of the "Victims' Rights Movement" and its lynching speeches which bother some other people.
Wilson recognizes the conflict that most people believe exists between responsibility and determinism. He professes (and I've never seen an even remotely convincing argument for anything else) a belief that everything is caused. He then points out that if we excuse whatever is caused we will excuse everything. This, he says, is absurd, and therefore we shouldn't do
it. I agree with the conclusion, but am not sure the argument will convince everyone. For Wilson, anything that requires radical change is, for that reason, wrong. On pp. 60 and 100 he dismisses certain conclusions because to accept them would require rewriting a lot of laws and court decisions. Well, so what? Is that a good enough argument for people more open than Wilson is to change?
I think there is an argument for Wilson's position that will be more persuasive to people who, for example, would like to see our incarceration rate drastically cut. Wilson analyzes the problem well. He points out that juries often long for an explanation of how something came about. But he does not do enough to prove his point that such longings should, in many cases, be irrelevant. Wilson suggests admirable rewordings of legal distinctions. And he makes a strong case for holding people responsible for their delusions and misconceptions. But he doesn't make a clear enough case.
Wilson bases this last stance on the standard of what a "reasonable person" would do, rather than a "subjective" judgment. But he, himself, sometimes scare-quotes the notion of a "reasonable person."
Both you and the author are incorrect
An execution is the deliberate and methodical fulfillment of a planned series of actions meant to acheive a specific objective. No one, not a criminal nor a legally authorized servant of the State, can "execute" a human being. One can execute a legal order to carry out a sentence of death by whatever means. The other can execute an illegal imposition of his will.
A dictionary, indeed.
Next time, do try to review the book.
Or, failing that, pick nits with greater care lest you prove lice ridden yourself.The book itself gave me little information of which I was previously unaware, but did serve to crystallize the issue and provide a few useful barbs to hurl in debate with the more Liberal folks I know.
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