What should we criminalize: threats to the common good?

(music) Hi, I’m Barry Lam, associate professor of philosophy at Vassar College, and the producer of Hi-Phi Nation, a show about philosophy that turns stories into ideas. In this video, we’ll consider the idea that a primary justification for criminal law is its great potential to serve the common good. Let me tell you the story of America when the car was just invented. It was one of the most gruesome times for accidental deaths. There weren’t any laws about who could drive, how fast, or where you could drive. Thousands upon thousands of pedestrians were killed, 60% of them children between the ages of 2 and 9. Cars quickly became the most dangerous and deadly man-made thing humans would encounter in everyday life, and they still are to this day. And yet, traffic accidents and deaths have steeply declined since the automobile was invented, even as more people drive farther distances. Partly, this is because cars have gotten safer. But it’s also due to the proliferation of laws that turned driving and parking into some of the most highly organized human activities. Many traffic laws are criminal laws, and police officers in America have the right to arrest people for any traffic infraction, even the smallest ones, like not wearing a seatbelt. I’m telling you this because there’s no better example of governments using criminalization as a solution to social problems than in traffic laws. It's in everyone’s interest that automobile transportation runs smoothly and safely. But when you’re late for work, it’s in your interest to break the rules of the road: to drive as fast as you can, run red lights, use the emergency lane to get around traffic, and so on. Though each of us may be personally better off by driving however is most convenient for us at the time, we’d be much worse off collectively if everyone did that. This is called a collective action problem. Once you know how to spot them, you’ll see them everywhere. If everyone obeys traffic laws, we all benefit. But if everyone but me obeys traffic laws, I can get the benefits of everyone else’s compliance while still driving however I like. Somebody who takes advantage of other people’s compliance with the rules is a free rider. Free riders make things worse for the rest of us. For example, someone using the emergency lane because they don’t want to sit in traffic might block an ambulance speeding to a real emergency. But often, free riders don’t have any measurable impact on the common good. Think about the speed limit. One important reason for setting the US national speed limit at 55 miles per hour is environmental: if all cars and trucks limit their speed to 55, this would maximize fuel efficiency, limiting the amount of oil burned and greenhouse gases emitted. But if everyone drove 55, and you were a single trucker driving 70, you’d make a lot more deliveries in a week -- and a lot more money. And you wouldn’t be exacerbating the environmental problems in any significant way. The problem is: there’s never only one free rider. As soon as other truckers saw you enjoying the benefits of driving 70, they’d start to feel like suckers, and decide to drive faster too. Eventually, everyone would be looking out for themselves -- and then everyone would be worse off, because of the environmental damage the speed limit was introduced to mitigate. The criminal law is a powerful tool in solving the collective action problem posed by free riders. Criminal penalties can be specifically designed to counteract the benefits of driving over 70, thereby changing what’s in a driver’s best interest. Without the threat of punishment, the trucker has little incentive to obey the speed limit. But with the threat of punishment, she’ll have a much stronger reason not to speed. This kind of rationale can also justify criminalizing activities that have no harmful effects in themselves. For example, we all benefit if everyone agrees to drive on one side of the road. But which side: right or left? Neither one is better. We just have to decide. And once the decision is made, we need to ensure everyone follows the same rules. Criminalizing disobedience is a very effective way to do this. If criminalization can be justified as a solution to collective action problems like this one, maybe it can be justified as a way of solving all sorts of social problems. Many social problems stem from individuals acting in ways that go against the collective interest. Criminalizing these actions makes them much less tempting for people. Now, these actions incur the risk of punishment -- which can be anything from monetary fines, like a traffic ticket, to constrictions of liberty, like a license suspension or even imprisonment. Drug use, for example, is often seen as a contributor to social problems like unemployment, child neglect, and criminal behavior. We all have an interest in solving these problems, and criminalizing drug-related activities might make a significant impact in that direction. Criminalizing drug possession creates a powerful disincentive for would-be drug users. Perhaps even more significantly, criminalizing activities associated with drug production and distribution encourages people to stay out of the business, even if the financial rewards are tempting. And since the state enacts these laws openly and publicly, every violation and violator is broadcast to the world at large. This creates more awareness of the rules, and more compliance with them. This view of criminalization is what legal theorist Jonathan Simon calls “governing through crime.” And it’s attractive -- so attractive that it’s become the dominant approach to criminalization in America today. On the other hand, some argue that this approach to solving social problems is why America has the largest prison population, and the highest per-capita incarceration rate on the planet. This creates plenty of social problems of its own. Is governing through crime worth this cost? What do you think? (music)