Crime and Punishment — A Blog Journal on John Locke (Chapter 2d)

(Part V of this series)

To minimize repetition of the same criticism, I’ll make the sincerest effort to give any chapters hence in the Second Treatise the most charitable interpretation I can, granting Locke, for example, his deontological terms as shorthand for a consequentialist argument. Where he undergirds his argument in the “law of nature,” we may think of this as the recognition that for those who value a flourishing society for themselves and for others, adherence to the ethics he describes is imperative.

That said, picking up where we left off in Chapter 2, Locke contends that the law should be enforced equally upon all individuals who transgress it, and it ought be the people who collectively execute that law — as opposed to a monarch or aristocracy imposing laws to restrict the commoners. To his credit, as much as I have picked apart Locke’s arguments so far, this proposal and the ones that follow it are agreeable. He acknowledges that the primary role of justice, far from sheer vengeance, is the rehabilitation of criminals and the deterrence of further crime. This constitutes a reasonable exception to the rule of no harm that a Locke had earlier endorsed, as in practice we find that the force employed by the justice system is usually (but not always) more productive and justified than criminal force.

Locke also makes the overlooked but important point that besides the administration of justice to the criminal, the justice system carries the other responsibility of ensuring the restoration of the victim’s well-being (as much as is feasible). As citizens comply with the laws and taxes binding on all in the community, it stands to reason from the utilitarian perspective that any who sustain significant suffering in this community through no fault of their own (but that of others) should be able to have these damages repaired. The system by which any society does this is bound to be imperfect, but it’s a crucial fundamental of societal structure that deserves the attention Locke gives it.

As a parenthetical note, I should mention that if, again, most of this seems obvious, it probably is — but Locke’s (and our) purpose here is to build up, from our most honest philosophical starting points, the necessary conclusions in the study of societal protection of rights. If these conclusions happen to closely match what we already believe, provided we have critically thought these matters through and not succumbed to bias, this should tell us that conventional wisdom does indeed have some basis in reality. Where it does not, naturally, is the interesting part, and that’s where Locke’s ideas get revolutionary. This isn’t to say all answers are to be expected from serious sociological thought (rendering the endeavor as futile as the unfalsifiable theories of, say, Freud), but rather to admit that the reasonable answers do not discriminate based on what is popular.

Though it is not central to his treatise, Locke takes his endorsement of (at least as far as we can infer, unless he is — improbably so from his words — attempting a description of the origins of ideas about justice, not a prescription of them) justice against criminals to something of an extreme:

“[A]nd thus it is, that every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from every body, and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a [tiger], one of those wild savage beasts, with whom men can have no society nor security: and upon this is grounded that great law of nature, Whoso sheddeth man’s blood, by man shall his blood be shed.”
— John Locke, Second Treatise on Civil Government, Chapter 2

From the bolded phrase, it’s clear that Locke sees the death penalty as, at least partly, the logical consequence of murder’s being a specially irreparable crime. Such a topic warrants multiple posts of its own someday, but for now it’s sufficient to note a fact that stands independent of whether the reader defends capital punishment in any circumstances. His hypocrisy is glaring; if murder’s due justice is proportional to its inability to rectify for the murdered person him/herself, surely we ought to be especially cautious when considering the ethics of delivering a punishment that itself can’t be reversed. The miscarriage of justice is just as bad as any comparable crime inflicted upon the innocent, so even if killing murderers as Locke recommends is just, few moral duties could weigh more heavily on our justice system’s shoulders than that of ensuring that those killed by the state are in fact guilty.

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Questions on My Mind

This post will be somewhat more informal today, folks. The same reasons for last article’s delay (sheer business) have restricted my freedom to write developed theses for this blog at the moment, so for now, I’d like to stop pretending I have answers to simply raise some questions. Hopefully this will spark some thought in you and me, and even if not, consider this a preview or syllabus of the sorts of topics we may explore here in weeks to come.

1.) To what extent is the good of society dependent on our understanding of the human mind, particularly of how it can be prone to error or destructive behavior due to biases and psychopathologies? What steps can we take towards acting upon this knowledge properly?

2.) Do accusations of “political correctness” and oversensitivity carry merit, or are these labels little more than excuses not to use the power of words wisely?

3.) What are some effective and evidentially supported methods of distributing charity? Is our problem in combatting world hunger and disease one merely of quantity, or are we approaching this the wrong way entirely?

4.) What are the ethical, economic, and social implications of the impending artificial intelligence explosion (this is one you’d be better off just web searching to get the idea; I recommend Goodsearch, a search engine that gradually raises money for a charity of your choice)? As far-fetched as the idea of a sci-fi-esque robot takeover seems, is the probability that artificial intelligence might work against human interests in more subtle ways one worth taking seriously?

5.) Regardless of the more personal ethical quandaries, is there any consistent legal case that can be made for the rights of certain nonhuman animals? If so, how far do these rights extend, and how does this relate to our food industry, scientific practices, and manufacture of other animal products?

I’d be delighted if you could comment with your thoughts on any of these questions, and if you have some of your own you’d like to raise (within reason), please share them!

On Chelsea Manning and Gender Identity (Part III)

(Follow-up to Part II)

“We sentence people to incarceration. We do not sentence them to untreated medical conditions. We don’t sentence them to untreated gender dysphoria just as we don’t sentence them to untreated kidney failure, untreated infections, or anything else of the sort. When the government takes on inmates and incarcerates them, it becomes responsible for their medical care. And this condition from a medical and scientific perspective is no different from any other medical condition that requires treatment. And increasingly from a legal perspective as well. Civilian courts have found in almost all cases that prisons are required to provide hormone therapy and increasingly surgery as well. Not to do so is considered cruel and unusual punishment under the Eighth Amendment.”
— Lauren McNamara, an activist and friend of, and former defense witness for, Chelsea Manning, explaining why hormone therapy is a medical necessity for trans people and why Chelsea ought to be treated in prison

The third perspective to which I alluded on Saturday (quite honestly, this was a busy week for me, so there’s why it took me so long to update) is the one McNamara speaks of in the above quote. Having fact-checked her on this, I found in an extensive  source referenced in Part II ample evidence to suggest not only that gender dysphoria is responsible for considerable struggles in the lives of many individuals, but also that the most effective treatment is transitioning. While the extent to which any given trans person would be best off transitioning varies, common elements of this process include hormone replacement therapy, SRS, and — most critically — integration into the authentic gender identity in a way that maximizes comfort with the self. As far as none of this causes unethical harm to the transitioning person or to others, the need for acceptance of trans people and demolishing of the myths surrounding transgender issues is undeniable.

Where, then, does this leave Private Manning? Currently, the prison in which Manning resides offers no more than psychiatric assistance for gender dysphoria as part of inmate health care. This may sound reasonable enough on paper, but the problems are twofold. First, as noted in the aforementioned source, the sort of therapy that is standard practice for military inmates is not nearly as effective as the remedies prescribed almost unanimously by psychological journals (e.g. the AJP). The former methods, which tend to focus more on eliminating the desire for elements not conforming to the norms of the birth sex (analogous to ineffective “pray away the gay” tactics), are as relatively inefficient as if we treated PTSD with Freudian psychoanalysis.

Second, these facts lead inevitably to the conclusion McNamara reaches: that the government has no more right to deny trans people any necessary treatment than it does to preclude mental health care for sufferers of depression. For many, as is medically demonstrated, dysphoria manifests as a form of depression and should be treated as such in urgency.

Why, many ask, should the people’s tax dollars go toward funding this treatment for a person at least a fair deal of the country considers a traitor? For the same reason taxes go toward any other sort of prisoner medical care: inmates are not legally allowed to pursue their own private health care, thus, as the system currently runs, they can only rely on the government’s provisions of such services. The alternative is to add unnecessary physical and mental suffering to the sentence, which is indeed “cruel and unusual punishment under the Eighth Amendment.” Those who take issue with this policy are doing just that; it has nothing to do with the rights of trans inmates specifically.

To close this post, consider this graphic:

image

In far too many — not all, but enough for us to care — cases, a lack of acceptance of trans people wreaks damage on multiple levels. Families are broken, jobs are lost or precluded to begin with, discrimination is imposed at every turn, physical and sexual abuse is endured, and lives come to tragic ends. This is a real problem, and it is not inevitable. The vast majority of that which plagues the trans community begins in the attitudes, speech, and actions of you and me. For those who are denied respect solely on the basis of their gender identities, in honor of Suicide Awareness Week, we ought to do better. Manning was once one of the youth described above, and her case brings light to the need for a paradigm shift in our overwhelmingly cissexist society.