We were warned not to meddle too deeply into God’s business: Eve and the knowledge of good and evil, judge not lest ye be judged, the Pharisee of Luke 18:11 who “prayed thus with himself, ‘God, I thank thee, that I am not as other men are, extortioners, unjust, adulterers, or even as this publican.’” But it was Eve who made us fully human (o, felix culpa!), her adventuring with the forbidden fruit transforming mankind from a creature merely made in the image of God to one sharing in His distinctive quality: Knowing good and evil, we are obliged to pass judgment. We are called upon to do acts of mercy, but we also are called upon to do justice, which is not only feeding the poor and caring for the widow but also ensuring that they are protected from those who would do violence to them. We must punish. Knowing good and knowing evil, we take up the burden of both. Perhaps the non-believers will find as much truth in that as those on the kneelers.
The duty to punish is distinct from the desire to punish. Consider the now-abandoned but eminently civilized custom of the executioner begging the condemned for his forgiveness before chopping off his head, a humane recognition of the fact that what is transpiring is not between two men but between a man and mankind, or at least the portion of it that forms the polity around him. There’s something in that redolent of the old Chuck Jones cartoon with Ralph E. Wolf and Sam Sheepdog, who greet each other with courteous familiarity on the way to work in the morning, punch the time-clock, spend the morning trying to murder each other, clock out, chat amicably over their lunch break, clock back in, and spend the afternoon trying to murder each other before parting as friendly colleagues at day’s end. Fans of American Sniper have taken to heart the film’s now-famous monolog on wolves, sheep, and sheepdogs, and there is a certain fatalism to it: that we are what we are, that like wolves and sheep and sheepdogs we are simply, as the theologian Lady Gaga put it, “Born This Way.”
Our progressives friends accept “Born This Way” for exactly one category of human inclinations: those related to venereal enthusiasms. When it comes to sexual taste, our progressive friends are all Sir Francis Galton, writing disquisitions on hereditary fabulousness. But they resist well-founded scientific accounts of the biological basis of human intelligence and its heritability. Conservatives, who in spite of their recent ghastly experiments with populism have not entirely lost their instinct for hierarchy, are in the main perfectly comfortable with a “Born This Way” account of intelligence. But delve too deeply into questions about which other aspects of human interior life may also be biological, hereditary, and effectively immutable, and you will start to encounter some resistance.
Partly this is religious, and not in the narrow sense of this or that theological school of this or that Christian denomination, but in the very broadest sense of the shared American metaphysics: We are great believers in free will. Without free will, a great deal of American civic rhetoric is difficult to support, and a very narrow conception of human agency must challenge our views on the truth of certain truths we have long held to be self-evident. Democratic processes do not shine so brightly if we are all doomed to act out deeply ingrained tribal affiliations, and there is no such thing as a meritocracy when merit is just another lottery. Some of our more serious thinkers have dealt seriously with the fact that there probably is no more personal merit in being unusually intelligent than there is in being unusually tall, but we are not prepared ethically or politically to incorporate the fact — if it proves to be a fact, which seems likely — that such old-fashioned virtues as the willingness and ability to delay gratification in the service of some higher good, to sacrifice on behalf of our children and others who depend on us, and bedrock character features such as honesty, thrift, and tolerance are also rooted in biological facts distributed on the lottery model. If you want to go down that rabbit hole — and the truth may be down that rabbit hole — then you have to be ready to consider things like evolutionary theories of rape. It is not as though we have to hand over a blank moral check every time we identify a genetic or otherwise biological basis for behavior of which we disapprove. But we can, and should, understand that behavior in the context of the underlying realities of the human person, which are as much biological as moral.
The vulgar version of the gay-rights argument goes: “Blacks are born black and gays are born gay, so having negative feelings about homosexuality is the moral equivalent of racism.” Q: What if thieves are born thieves or rapists are born rapists? A: “How dare you compare these nice homosexuals to those awful thieves and rapists!” But once you acknowledge that an inborn tendency toward homosexuality is not from an ethical point of view very much like an inborn tendency toward rape, then you are acknowledging that your “Born This Way” argument isn’t complete, that there is a second piece that, for whatever reason, sexual liberationists are hesitant to speak about. The strict biological-determinist model is an argument either for anarchy or totalitarianism, while most of our traditional ethical models are not very well equipped to account for a strong biological basis for antisocial behavior.
On the matter of gay rights, both of our major political models are defective, because both are distorted by errors rooted in the desire to punish. For gay-rights advocates, it is very important that their critics and political adversaries be labeled bigots of the Bull Connor sort rather than, say, natural-law ethicists of the Robert George sort. If you doubt the intensity of that desire to punish, consider that abortion-rights advocate Theodore Shulman, son of the feminist writer Alix Kates Shulman, was in possession of cyanide and other poisons when police came to arrest him for threatening to assassinate Robert George. On the opposite side of the controversy, evidence of a biological basis for homosexuality has been strongly resisted by those with a deep emotional and intellectual investment in the idea of homosexuality as willful perversion; formal punishment of homosexuality was relatively rare even before the Supreme Court threw out sodomy laws in Lawrence v. Texas, but other more prevalent informal forms of punishment, such as social marginalization and professional exclusion (in many cases, the real purpose of the sodomy laws was to keep gay teachers and the like quiet about their orientation for fear of being dismissed from their positions as criminals) were and are common. The distinction between formal sanction and social exclusion is not trivial, but neither is it neat.
Even if we have swung too far in one direction on the matter of gay rights (with the exnihilation of a constitutional right to gay marriage and the simultaneously hilarious and horrifying campaign to lock up nonconformist bakers and florists as federal outlaws) we are a generation ahead, politically speaking, on gay rights compared with other similar issues. We have formal toleration, a robust public debate, competing campaigns of social persuasion, etc. The contest is between an insufficient “Born This Way” model and an emerging “Yes, Born This Way, But . . . ” alternative. The desire to punish — homosexuals as perverts, critics as bigots — remains very strong, and it distorts much of the discussion outside of the more rarefied intellectual circles, but elite opinion on the question is relatively sophisticated, and despite popular passions there is no blood in the gutters over the question of the social status of homosexuals. Here it is necessary to note that Christian and especially Catholic intellectuals have been performing a remarkable social service: From Saint John Paul II’s “Theology of the Body” to the pastoral efforts of Pope Benedict XVI and (to a truly remarkable extent) those of Pope Francis, Catholic thinking on questions of sexuality has been dramatically liberated from the desire to punish. It is ironic, though perhaps not entirely surprising, that this should be the case in the most prominent Western institution dedicated in part to the regular observance of penitential rites.
In Martin Amis’s beautifully written but nonetheless horrifying Koba the Dread: Laughter and the Twenty Million, there is an illuminating episode:
On his first day in office, Lenin was looking the other way when the Second Congress of Soviets abolished the death penalty. “Nonsense,” said Lenin: “how can you make a revolution without executions? To think otherwise was “impermissible weakness,” “pacifist illusion,” and so on. You needed capital punishment, or it wouldn’t be a a “real” revolution. . . . Lenin wanted executions; he had his heart set on executions. And he got them.
As Amis notes, capital punishment had been abolished by earlier revolutionary powers, and then reinstated, to the dismay and fury of the Bolsheviks, by the Provisional Government of Alexander Karensky. (My own desire to punish the Communists for the multitude of their crimes makes it uncomfortable to admit that there was a measure of genuine humane liberalism among at least some of the Russian revolutionaries.) Amis argues persuasively that for Lenin, terror was a positive good in its own right. “We shall return to terror and to economic terror,” he insisted, and so it was. Lenin’s project was, in his own words, a dictatorship based on “unrestricted power based on force, not law.” As wrong, naïve, daft, insane, and debased as the project to build the Russian workers’ paradise was, the desire to build something is distinct from the desire to punish.
Despite overheated popular rhetoric to the contrary, the United States in 2015 is not very much like Russia in 1915 or in 1921. We may have a few batty Marxists and half-Marxists floating around (and one very prominent one whom the Democrats very well might take the delightfully silly step of nominating as their presidential candidate), but we are not on the verge of Leninist terror. And yet the desire to punish, which endures in opposition to the creative impulses, remains very strong. It may, in fact, be the most powerful force in our politics.
“Nobody went to jail for any part of this,” Senator Elizabeth Warren laments in the aftermath of the 2008–09 financial crisis. Writing in the New York Times, Paul Krugman makes the same complaint in the same words: “Nobody went to jail.” Matt Taibbi in Rolling Stone: “Nobody went to jail.” On the campaign trail today, Senator Bernie Sanders makes the same complaints in precisely the same words. That isn’t quite true: A few financial professionals have in fact gone to jail for misbehavior related to mortgage securities. Kareem Serageldin, global head of structured credit at Credit Suisse, went to jail. Lynda Sanabria of J.P.Morgan Chase went to jail. They are not the only ones. But nobody the average American television-news viewer has ever heard of went to jail. Why? In Senator Warren’s view, the problem is that the Obama administration, and the president’s pick to head the SEC, Mary Jo White, have an insufficient desire to punish. Senator Warren took the unusual step of making public a letter to White accusing her of being soft on Wall Street, of lying to senators about her work and intentions, of being corrupted by undisclosed corporate donation, etc. (Full PDF letter here.) But Senator Warren is a lawyer, and in fact was a professor of law at Harvard, and she is said to have some expertise on these issues. (Her critics in finance may describe her as dull and plodding, but no one whose opinion I respect ever has suggested to me that she is stupid or entirely ignorant.) Is there a case that Lloyd Blankfein or Jamie Dimon should be in prison? If there is, Senator Warren has the training to write up the indictment herself and send it over to the Justice Department. But there really isn’t a case for that.
It may be the case that while he was running Lehman poor feckless Dick Fuld was engaged in a criminal conspiracy to lose himself $1 billion and exterminate his company. It is more likely that he oversaw a firm that made a lot of bad investments and paid the price for it. Senator Warren is hopping mad that the SEC is, in her view, too generous in reaching settlements with banks that run afoul of regulators — that nobody goes to jail. The reality is that most of what led up to the financial crisis wasn’t illegal, that such violations of regulation as there were rarely reached a level to justify criminal prosecution, and that in those cases in which individuals arguably ought to have been charged with crimes, the problem wasn’t insufficient prosecutorial zeal in the DOJ but the unintended effects of excessive prosecutorial zeal. Writing in the New York Times, Jesse Eisenger explains that for many years, the DOJ was in fact focused on bringing charges against individual malefactors on Wall Street and — yes — putting them in jail when appropriate.
Until the 1980s, government prosecutors generally focused on going after individual corporate criminals. But after watching their fellow prosecutors successfully take down entire mafia families, like the Gambino and Bonanno clans, many felt that they should also be going after more high-profile convictions and that the best way to root out corruption was to take on the whole organization. A long-ignored Supreme Court ruling, from 1909, conveniently opened the door for criminal charges against entire corporations.
The problem is that going after an entire corporation produces a great deal of collateral damage as in the case of the “corporate death sentence” against Arthur Andersen, as a result of which some 28,000 people lost their jobs. Very few of those people had done anything wrong. But the desire to punish is very strong. It is not, however, as strong as the desire of politicians to get reelected, and imposing massive job losses in the service of a moral crusade is not very popular anywhere outside of environmentalist circles. On the one hand, the desire to punish led the SEC to go after entire organizations rather than seeking to convict individual criminals; on the other hand, political realities and organizational capacity (the DOJ is not in fact very good at pursuing these kinds of cases and often blows them in spectacular fashion, as in the matter of KPMG) ensures that this “Kill ’em all and let God sort ’em out” mentality actually achieves the opposite of what was intended.
On the matter of high finance, the desire to punish interacts toxically with simplemindedness. Most people, including many so-called experts on financial regulation, could not explain to you what a derivative is. In the recent Democratic debate there was a lot of attention given to the repeal of Glass-Steagall by the Clinton administration and zealous promises to resurrect it. Glass-Steagall, which separated commercial banking from investment banking (I’d be surprised if more than one candidate on that debate stage could satisfactorily explain the difference between the two) would have had no effect at all on the decisions that led up to the financial crisis, because the important players were almost all pure-play investment banks and other institutions that would not have been affected at all by Glass-Stegall if it had been left in place. Other so-called reforms, such as Senator Warren’s demand that companies be made to publish statements on the ratio of CEO pay to median worker pay in order to facilitate public-shaming sessions, also would do nothing at all to address the sources of the financial crisis. The reforms that do make a difference, such as the Fed’s decision to raise banks’ capital requirements (which is to say, to change the minimum leverage ratio in order to reduce overall risk), and other reforms that would make a difference, excite no one. Why? Because they do not feel sufficiently punitive.
The desire to punish distorts policy-making decisions across the political spectrum. As I argue in a piece to be published here on Sunday, much of our thinking about welfare and unemployment benefits is shaped by punitive thinking, by the desire to exact vengeance upon our fellow citizens for the crime of malingering on welfare or unemployment. It isn’t that malingering (and fraud, and abuse, and waste, and the rest of it) doesn’t happen, or that it isn’t important. The problem is that the desire to enact punitive policies often runs counter to the necessity of enacting effective policies. For example, it may be the case that people should be more enterprising and more willing to take on the risk and discomfort of relocating to a new city when there is no satisfactory work to be found where one is. But that is not how (some) people are. If we want to make policies based on how things and people and institutions are rather than based on how we think they should be — which is to say, if we wish to address reality rather than a set of metaphysical preferences shared by the policymaking elite — then punitive measures are only relevant to the extent that they cause actual changes in behavior. When it comes to getting people off of unemployment and into a job, it may be the case that punishing malingering is less effective than, say, helping them with relocation costs. Paying somebody $2,500 to move from Abernathy, Texas, to Tulsa, Okla., for a new job is in almost every way preferable to paying them $8,000 to sit on their asses in Abernathy and do nothing — except that it deprives us of punitive opportunities.
A horrific example of this can be found in our debate over crime. We have the occasional mass-shooting spectacular, which always dominate the headlines for a day or two but which are, in the context of American crime, statistically insignificant. We also have a great deal of murder committed by ordinary criminals going about ordinary criminal business. The National Rifle Association has nothing to do with either of those, but one of our major political tendencies has a very strong desire to punish the NRA for being an effective advocate of a very popular cause. The desire to punish can be very selective: Our mass shooters are the product of failed mental-health practices (members of which political party do you imagine dominate the ranks of public mental-health facilities?), failed schools (members of which party dominate the public schools?), failed families (members of which party have spent 25 years pooh-poohing “family values” as a blend of bigotry and nostalgia?) and, of course, of their own personal demons. There is a long list of people and institutions that bear some of the blame, but the desire to punish is especially intense when it comes to people who are not like us. So when a product of a fractured family and a single-mother household slips through a social safety net staffed by unionized Democratic voters, the obvious party to blame is the party that has nothing whatsoever to do with the situation.
In the American political parlance, the desire to punish most often is expressed by the words “Get tough.” There are addicts in the policymaking class, but not those kinds of addicts: addicts who sleep in the street, who dabble in prostitution and petty larceny, who peddle drugs themselves. We didn’t just “get tough” with these people — we declared war on them. We “got tough” on drugs rather than help addicts, as though a few months in prison makes an addict anything other than an addict with new traumas and additional criminal skills. To think otherwise would be “impermissible weakness,” no doubt. We dream of rounding up illegals from Mexico and points south but scarcely ever think of bringing charges against the business operators who employ them and thereby create the main incentive for illegal immigration. Politicians promise us that we can solve our domestic economic problems – which include a failed public-education system and an American middle class that demands a much larger welfare state than it is willing to pay for — by “getting tough on China,” which is the new version of that golden oldie from the 1980s, getting tough on Japan. In 20 years, we’ll be getting tough on India, but the dropout rate in New York City is still going to be 50 percent.
I have met an unusual number of people with drunk-driving convictions, many of them because they came into my newspaper office begging me not to include their arrest in the weekly police blotter, or issuing threats to the same end. None of them wanted to be that guy, or to be that woman. It is the case that alcoholism has a strongly genetic component, and possibly an epigenetic component. It is also the case that if you never take a drink you’ll never be a drunk driver. It is also the case that such punitive scenarios as we are likely to devise probably will not have much effect on a man or woman who is too drunk to rationally weigh the risks and consequences of driving. There are many things that we could do to reduce drunk driving, from invasive technological paternalism (cars that recognize when you’re wasted and stay parked until you’re sober) to providing deeper and better assistance to people with alcohol problems. Consider: 50 to 75 percent of those convicted of DUI who have their licenses suspended continue to drive drunk; most people who get a DUI will drive drunk 80 times before they catch a charge; 1 in 4 people aged 21–25 will drive drunk. And that’s after 25 years of anti-DUI crusading by MADD et al. and the institution of much stiffer penalties.
Does that sound like something we are going to punish our way out of?
On the other hand, San Francisco had only two DUI arrests on New Year’s Eve last year, the lowest in some time. What was the public-policy miracle that achieved that? Uber. Researchers at Temple University have suggested that Uber — specifically, the inexpensive decentralized Uber X service — could prevent as many as 500 vehicular homicides nationally if universally available. (Here I return to one of my guiding epigrams, this one from the French novelist Michel Houellebecq: “The Enlightened One, if he had meditated on it, would not necessarily have rejected a technical solution.”) When I was a student at the University of Texas, a wise if paternalistic arrangement between the university and the local taxi companies ensured that any student who felt he was too drunk to drive home could simply show a taxi driver his student ID and be taken home. (But not to another bar.) Yes, yes, spoiled stupid college kids ought to act like grown-ups. Q: Do we want to “get tough” on DUI — or do we want to reduce DUI?
And so it goes: The desire to punish Barack Obama, or to punish Republican leaders for being insufficiently dedicated to punishing Barack Obama, is at the moment the ruling concern in populist conservative circles. The entire debate about economic inequality is focused on punishing the wealthy (with higher taxes or regulation) rather than on improving the prospects of low- or moderate-income Americans. The debate about reparations for African-Americans is pure desire to punish. Despite some important Republican and conservative leadership on the issue, our national stance on criminal justice is still far more oriented to the punitive than the effective. The desire to punish Christians and social conservatives for their views on homosexuality and gay marriage is far more powerful than the desire to facilitate gay Americans’ ability to organize their own lives as they see fit. In the schools, we punish little boys for being little boys, and afterwards we punish adult men for “toxic masculinity.” We want to punish insurance companies and drug manufacturers for the crime of providing insurance and drugs, and to punish financial firms for making money from the provision of services that their clients desire. We won’t punish people who took out irresponsible mortgages (including many who committed fraud to do so) but we’ll sure as hell punish banks for lending those people money to buy houses, which has been redefined as an act of predation. We’ll punish fraternities for the crimes of white privilege and male privilege, even if we have to invent fictitious rapes to do it. Nemesis, too, is a jealous god.
And there is a time for punishment. Jesus forgave Dismas, but He did not spare his life. Nothing we learn about the biological basis for pedophilia is going to make us forgo the punishment of child molesters. But my colleague Charles C. W. Cooke was roundly denounced by all the best people for his remarks on an essay written by a man who is sexually attracted to children but has the moral maturity to avoid acting on that attraction, writing: “Unless you believe that people ‘choose’ to become pedophiles — and I don’t — the author seems to be doing exactly what he should be doing given his condition: Namely, a) accepting that he has an unimaginably serious problem, and b) doing his utmost to refrain from acting upon it. I am not a practicing Christian, but, as far as I can recall from my instruction as a child, the author is taking precisely the approach that Christians are supposed to take when they find themselves tempted toward sin.” So powerful is the desire to punish that we seek to inflict righteous vengeance on people who have committed no crime — which is not righteousness at all. But we have our hearts set on executions.
We may thank the Almighty that we are not as other men are. (Except for the fact that we are.) The ancients in some ways had a more profound and less naïve understanding of these things than we do. Jacob was a deceiver. Why? He was born a deceiver. His name means “deceiver.” (But, but, but: He did not die Jacob; he died Israel.) Agamemnon was born “very steadfast.” Aeneas was born to be “celebrated.” Lear was born proud and foolish, Juliet was born a Capulet — and that was enough. Strange that we who by accident of birth are among the 0.3 percent most fortunate of all the human beings who have ever lived should not take a more generous view of other accidents of birth. Strange that we who are so fortunate should be so taken with finding someone – anyone – to blame.
The Pharisee stood and prayed thus with himself, “God, I thank thee, that I am not as other men are, extortioners, unjust, adulterers, or even as this publican. I fast twice in the week, I give tithes of all that I possess.” And the publican, standing afar off, would not lift up so much as his eyes unto heaven, but smote upon his breast, saying, “God be merciful to me a sinner.”
It is a dangerous thing, playing God’s game. But if we must — and sometimes we must — we might at the very least make an effort to try to get it right.