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Thursday
Jul302015

*Now* what do alternative sanctions mean? And how'd I miss the memo?

There were pretty much three things that I found very mysterious about the disconnect between empirical evidence and public policy when I started as an academic in the late 1950s or whenever it was, and the main one was the excessive reliance on imprisonment in the U.S.

I've reproduced the first few paragraphs of what was one of my first published articles (Kahan 1996) (the other was on how the latest developments in cold fusion were likely to radically alter constitutional interpretation; could still happen!). But basically the idea was that argument for so-called "alternative sanctions" was a loser b/c it ignored the phenomenon of social meaning. 

The case for reducing or eliminating imprisonment for a host of non-violent offenders, ones who didn't need to be incapacitated for public safety, was largely focused on costs and benefits: Tossing people in jail is expensive for society, not to mention degrading and debilitating for offenders, and doesn't deter those forms of criminality any more effectively ("empirical evidence demonstrated") than fines and community service.

The reason this argument, which had proponents across the ideological spectrum, persistently failed to gain traction, I maintained, was that it disregarded the societal expectation that punishment convey an official attitude of disapprobation, and indeed visit, symbolically, on offenders a kind of lowering in status commensurate with the severity of their own disregard for the value of the goods their actions had transgressed.  Decades' worth of experience, I concluded, showed things wouldn't get better until the stock of alternatives was enriched with punishments that not only regulated behavior more efficiently than imprisonment but expressed condemnation as effectively.  I proposed shaming punishments as a candidate.

Well, something seems to have changed. Very dramatically so. 

It's not just that there is "bipartisan support" for reducing incarceration -- at various times there had been that, too, in the past.

But the actual carrying through on these policies seems now to be largely a matter of indifference to the public.  The mood hasn't so much changed as just evaporated. 

Who cares? (Hey, did you hear about that lion in Milwaukee?!)

And what's more, I have no idea how this transformation took place. 

I don't think the explanation is that those making the argument for "alternative sanctions" just stuck to it, refining and improving and amplifying their arguments until finally everyone "got it."

I think the arguments that are being credited now were just as available 10, 20, or 30 years ago (the process that led to the dominance of incarceration as a mode of punishment started in the 1970s and really got locked in by the mid-80s).

What changed was the unacceptable meaning of the alternatives.

Or even more accurately, I think, what changed was the intensity with which the demand for what imprisonment conveys-- the distinctive gesture of condemnation associated with liberty deprivation -- just sort of withered and was forgotten about.... Take away that motivation to resist it, and the case that has always been so compelling actually starts to compel.

But like I said, I have no idea why this happened, and barely any idea when the change in the significance of the meaning of imprisonment changed.

I just averted my eyes, or widened my perspective to try to make sense of other examples of public policy disputes where the question of what laws do seemed subordinate, not just morally but cognitively, to what laws say, particularly about the social status of competing groups—and “poof,” the “alternative sanctions” debate was gone. . . .

Unless of course, it isn’t!

BTW, the second place where this same dynamic loomed large and fascinated me when I started “working” as an academic was the debate over capital punishment.  The primacy of “symbolic” motivations (morally, cognitively) to instrumental, deterrence considerations was widely understood to explain the persistence of capital punishment in the U.S. (Kahan 1999; Ellsworth & Gross 1994; Ellsworth & Ross 1983; Stolz 1983; Tyler & Weber 1982).

It was assumed, too, that that the intensity and durability of those expressive sensibilities meant the death penalty, like the overreliance on imprisonment in the U.S., was not going to go away.

Well, guess what? That’s changed too—and again for reasons that I don’t feel confident I can identify I do feel confident that the “obvious” reasons—cost, conviction of innocent, etc., are not the reasons; those arguments were always available and likely even more compelling at an earlier time! The strength of the arguments didn’t change; the strength of the motivation to resist did—because, as with imprisonment, the demand for the meanings that capital punishment expresses abated.

Likely these developments are related. Capital punishment and “get tough on crime” were big issues—really, really big!—in every presidential election between 1968 and 1988.  And then the whole thing just went away. . . .

Huh.

The last issue of the three that had this quality when I started: gun control.  Good to see that some things never change.

But even better that many things do--in ways that furnish assurance that there will never be any shortage of mysteries to investigate.

What Do Alternative Sanctions Mean?

Dan M. Kahan

 

Imprisonment is the punishment of choice in American jurisdictions. In everyday life, the modes of human suffering are numerous and diverse: when we lose our property, we experience need; when we are denounced by those whose opinions we respect, we feel shame; when our bodies are tormented, we suffer physical pain. But for those who commit serious criminal offens­ es, the law strongly prefers one form of suffering-the depriva­ tion of liberty-to the near exclusion of all others. Some alterna­ tives to imprisonment, such as corporal punishment, are barely conceivable. Others, including fines and community service, do exist but are used sparingly and with great reluctance.

 The singularity of American criminal punishments has been widely lamented. Imprisonment is harsh and  degrading for offenders and extraordinarily expensive for society. Nor is there any evidence that imprisonment is more effective than its rivals in deterring various crimes. For these reasons, theorists of widely divergent orientations-from economics-minded conservatives to reform-minded civil libertarians-are united in their support for alternative  sanctions.

The problem is that there is no political constituency for such reform. If anything, the public's commitment to  imprisonment has intensified in step with the theorists' disaffection with it. In the last decade, prison sentences have been both dramatically lengthened for many offenses and extended to others that have traditionally been punished only with fines and probation.

What accounts for the resistance  to  alternative  sanctions? The conventional answer is a failure of democratic politics. Members of the public are ignorant of the availability and feasi­ bility of alternative sanctions; as a result, they are easy prey for self-interested politicians, who exploit their fear of crime by advocating more severe prison sentences.5 The only possible solution, on this analysis, is a relentless effort to  educate  the public on the virtues of the prison's rivals.

I want to advance a different explanation. The political unacceptability of alternative sanctions, I will  argue,  reflects their inadequacy along the expressive dimension of punishment. The public rejects the alternatives not because they perceive that these punishments won't work or aren't severe enough, but because they fail to express condemnation as dramatically and unequivocally as imprisonment.

This claim challenges the central theoretical premise of the case for alternative sanctions: that all forms of punishment are interchangeable along the dimension of severity or "bite." The purpose of imprisonment, on this account, is to make offenders suffer. The threat of such discomfort is intended to deter crimi­ nality, and the imposition of it to afford a criminal his just deserts. But liberty deprivation, the critics point out, is not the only way to make criminals uncomfortable. On this account, it should be possible to translate any particular term of imprison­ ment into an alternative sanction that imposes an equal amount of suffering. The alternatives, moreover, should be preferred whenever they can feasibly be imposed and whenever they cost less than the equivalent term of imprisonment.

This account is defective because it ignores what different forms of affliction mean. Punishment is not just a way to make offenders suffer; it is a special social convention that signifies moral condemnation. Not all modes of imposing suffering express condemnation or express it in the same way. The message of condemnation is very clear when society deprives an offender of his liberty. But when it merely fines him for the same act, the message is likely to be different: you may do what you have done, but you must pay for the privilege. Because community service penalties involve activities that conventionally entitle people to respect and admiration, they also fail to express condemnation in an unambiguous way. This mismatch between the suffering that a sanction imposes and the meaning that  it has for society is what makes alternative sanctions politically unacceptable.

The importance of the expressive dimension of punishment should be evident. It reveals, for one thing, that punishment reformers face certain objective constraints. The  social norms that determine what different forms of suffering mean cannot be simply dismissed as the product of ignorance or bias; rather, they reflect deeply rooted public understandings that mere exhortation is unlikely to change. But there are also more hopeful implica­ tions. If we can understand the expressive dimension of punish­ ment, we should be able to perceive not only what kinds of punishment reforms won't work but also which ones will. Careful attention to social norms might allow us to translate alternative sanctions into a punitive vocabulary that makes them a meaning­ ful substitute for imprisonment.

 Refs

Ellsworth, P.C. & Ross, L. Public-Opinion and Capital-Punishment - a Close Examination of the Views of Abolitionists and Retentionists. Crime & Delinquency 29, 116-169 (1983).

Ellsworth, P.C. & Gross, S.R. Hardening of the Attitudes: Americans’ Views on the Death Penalty. J. Soc. Issues 50, 19 (1994).

Kahan, D.M. The Secret Ambition of Deterrence. Harv. L. Rev. 113, 413 (1999).


Stolz, B.A. Congress and Capital Punishment: An Exercise in Symbolic Politics. L. & Pol. Q. 5, 157-180 (1983).

Tyler, T.R. & Weber, R. Support for the Death Penalty: Instrumental Response to Crime, or Symbolic Attitude. L. & Soc. Rev. 17, 21-45 (1982).

 

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Reader Comments (8)

==> "But like I said, I have no idea why this happened..."

Perhaps the inescapable futility of that whole "5% of the world's population and 25% of the world's prison population" thingy has something to do with it?

July 30, 2015 | Unregistered CommenterJoshua

@Joshua...

Well, yes. But that argument was available, and just as compelling, 10, 20 & even 30 yrs ago. It didn't change. We did. How & why?

Same w/ death penalty.

In connection w/ movement to repeal of death penalty, many emphasize that DNA has woken up people to fallibility of criminal justice system. Well, the alarm bell was pretty piercing even before the advent of DNA proof. Moreover, precisely b/c of DNA proof, the probability of erroneous conviction is now *lower*-- so the prospect of mistake now arguably supplies less reason to be against death penalty....

Facts don't uniquely determine policy outcomes; they do only after they acquire social meaning, which is prior--cognitively--to fact

July 31, 2015 | Registered CommenterDan Kahan

Dan -

I don't know for sure what the trends have been over time...but my guess is that the % of population that is incarcerated has increased over time - largely as a result of the "war on drugs."

I was wondering if part of the explanation relates to your "shaming" alternative. It seems to me that there's some frustration because there may be less stigma attached to being incarcerated than there used to be. How could there be, with something like 25% of the population. Plus, over time, perhaps it just gets harder to ignore the reality that a "lock 'em all up," approach has some drawbacks?

I also think that the DNA evidence component has made deficiencies in the system clearer to more people. That DNA evidence leads to fewer wrongful convictions isn't mutually exclusive with making it apparent to more people that there are a lot of wrongful convictions.

July 31, 2015 | Unregistered CommenterJoshua

I meant to say something like 25% of the black male population being incarcerated at some point in their life.

July 31, 2015 | Unregistered CommenterJoshua

A little Googling:

http://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf

Look at the bottom of page 2 and page 3.

And then there's this:

https://en.wikipedia.org/wiki/Incarceration_in_the_United_States#/media/File:U.S._incarceration_rates_1925_onwards.png

Not that I doubt your statement that facts don't uniquely determine policy outcomes - certainly not; but I would think that such a dramatic increase in the incarceration rate could affect views on the value of efficacy of incarceration as a way to deal with crime.

And there's this:

http://cdn.theatlanticwire.com/img/upload/2012/10/12/drug-spending-v-addiction.gif

July 31, 2015 | Unregistered CommenterJoshua

@Joshua-- but if this had happened 10, 20, or even 30 yrs ago, the same explanation could have been given; likewise, if it hadn't happened now but 10 yrs in the future.

Do you think facts are clearer here than, say, on, oh, climate change?

July 31, 2015 | Registered CommenterDan Kahan

Dan -

==> "@Joshua-- but if this had happened 10, 20, or even 30 yrs ago, the same explanation could have been given;"

Well yes, the same explanation could have been derived in the past, but I would argue that given the trends, the likelihood of it being derived has increased over time.

==> "Do you think facts are clearer here than, say, on, oh, climate change?"

Sure, there are parallels with climate change; In a sense, thinking about how to deal with crime is, like with climate change, thinking about low probability, high impact risk. There are certainly some parallels in faulty risk assessment - like how people often have a poor ability to judge the relative impact to society of corporate or business crimes (individually and in aggregate) in comparison to violent street crime that elicits a more visceral response.

But I wonder if the facts related to crime are more accessible, in everyday life, more closely related to real experience, than with climate change. I don't really need an expert to interpret for me where the signal is in the data. The time horizon for risk impact isn't as distant, or abstract. The impact is closer to my day-to-day existence. The whole issue is much more ubiquitous...rap music, cop shows, local news every night, I might see a cop with a nightstick and a handgun on my street corner, or see a police car go screaming by with sirens and lights going. I might wonder if a cop is going to pull me over for exceeding the speed limit.

I'm not likely to run into a climate scientist.

I'm not sure that the parallel you're drawing holds up, but you do pose an interesting question. Assuming it's fair to say that opinions re: the value of a "law and order" approach have changed somewhat over time among "conservatives," what is it that allowed for a relaxation over time of that reflexive identity orientation on the issue? Looking from a theoretical frame, it does seem unlikely that accumulating evidence would, in and of itself, change identity association with views on a politically polarizing issue. But there are other issues where there have been large scale shits in public opinion within politically polarized contexts (gay rights being perhaps, one of the best examples)...

August 1, 2015 | Unregistered CommenterJoshua

"large scale shits..."

One of my better typos.

August 1, 2015 | Unregistered CommenterJoshua

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