Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

22 March 2014

Sanctions: Deterrence or Punishment?

[This is my last essay, for the time being, on Crimea and Ukraine. For Thursday’s and links to earlier ones, click here.]

Introduction: passion and social evolution
The three goals of punishment
Application to Russia re Ukraine
Collective punishment doesn’t work
Individual punishment can work but requires proof
Conclusion: the lessons of our common human past
Something new: rehabilitation

Introduction: passion and social evolution

Why does Shakespeare still draw us today? His age was utterly different from ours, as different as if on another planet.

It wasn’t just the technology. Of course there were no Internet, no means of communicating quickly over distance, no flush toilets, little personal hygiene, no accurate firearms, no tanks or airplanes, and no nuclear weapons. Of course the only motive force for vehicles and machines, besides gunpowder, came from wind, falling water and the muscles of men and beasts. Of course just getting a few tens of miles from one place to another was a dusty, dirty, wet, bouncy, exhausting and often dangerous experience, even for the Monarch.

But those things were just on the surface. The social structure and social norms were as different from ours as night from day. The King (or rare Queen) was an absolute monarch, whose absolute power Parliament was just beginning to curtail. The Monarch ruled by persuading the next level of the powerful: the landed nobility, each of whom had the means to raise a personal army. Real power changed hands not by elections, however disorderly, but mostly by murder, treachery and civil war.

Ordinary people had virtually no rights, except as a “noble” might deign to recognize them. There was no organized police force to protect ordinary people from crime. Such sheriffs as existed collected taxes and protected the prerogatives of the rich and powerful. And those lucky ones, more often than not, had to enforce their own rights through violence and threats.

So why do we still read Shakespeare, when our social evolution has far surpassed that of his day? Because our biological evolution advances much more slowly, almost imperceptibly. We still feel the same hates, fears, lusts, greed, anger, and thirst for revenge that Shakespeare’s characters felt. His precise and compelling (if sometimes archaic) language lets us feel those primal emotions as our own. Emotionally, his primitive late seventeenth century feels like just yesterday, like a vividly remembered passion of our youth.

But social evolution is a powerful thing. If we didn’t have it, our nuclear and chemical weapons would have led us to extinguish our species long ago. Somehow, we have overcome our primitive passions, which we still feel, with reason, analysis, pragmatism and new social norms.

And so it is with crime and punishment. Most of us no longer follow the Code of Hammurabi: an eye for an eye and a tooth for a tooth. Our species has dissected punishment analytically and has discerned its goals. And those goals go far beyond the primitive revenge of ancient times and Shakespeare’s day.

The three goals of punishment

Today every first-year student in an American law school learns punishment’s three purposes by rote. They are: retribution, deterrence and incapacitation.

When a man commits a crime (despite gender equality, most criminals are men), he has hurt someone, as well as social cohesion. So society puts him in jail, where the deprivation of his liberty and the onerous restrictions on his daily life hurt him back. That’s retribution, aka revenge.

The mere threat of that deprivation, putatively, makes would-be criminals think twice before committing crimes. Criminal minds at least try not to get caught. The mere fact of a criminal’s incarceration, however, shows that deterrence was not entirely effective.

So the deterrent goal of punishment has to overcome a slight logical conundrum. Nevertheless, we continue to believe, and there is some evidence to corroborate, that punishment deters crime.

Finally, if there are no jail breaks, incarceration prevents future crime. If properly supervised, a jailed man can’t commit further crimes while in jail, at least against the general public, as distinguished from fellow inmates and his jailers. That’s incapacitation.

The ultimate punishment is, of course, the death penalty. Human imagination can conceive greater punishments. Dreams of lifelong torture led to visions of Hell, which in our Middle Ages was as real to most people as Democracy and Freedom are to many today. After all, aren’t all three just mere abstractions?

But for most of us, death is the ultimate punishment because it deprives the victim of all pleasure and sentience, as well as pain. It is final.

Death is also the ultimate in incapacitation. You can’t commit another crime if you’re dead.

Deterrence is another story. The science of the death penalty’s deterrent effect is decidedly mixed, with more recent and more careful studies suggesting that it is limited at best. The primitive passions that motivate people to commit capital crimes are hardly rational: they come from the part of us that Shakespeare knew well. So the rational calculation that deterrence assumes is at worst a myth, at best a half-truth.

Advocates—who are still many—of executing the worst criminals suggest that the ultimate penalty’s deterrent effect is just “common sense.” But common sense also suggests a contrary riddle. If the ultimate penalty actually is the ultimate deterrent, why do we still have capital crimes? Would a lot more people commit them without it, or are the impulses toward capital crimes so strong and primitive as to overcome reason and deterrence?

Could it be that those who push the death penalty hardest are actually confusing the other goals of punishment—retribution and incapacitation—with deterrence? There is little doubt that killing a criminal can give the families of his victims the deep and primitive satisfaction of societal revenge. And there is no doubt at all that a dead criminal can’t strike again. In thinking of punishment, including the death penalty, we should try to keep our goals straight.

Application to Russia re Ukraine

But the subject of this essay isn’t really crime and punishment. It’s Ukraine. (Fooled you, didn’t I?)

If punishment is fraught with complexity and subtlety when applied to a lone criminal, how much more fraught is it when applied to a whole nation and its leaders? Isn’t that precisely the question before us today, as the rest of the world contemplates “punishing” Russia, as well as Vladimir Putin, for absorbing Crimea?

Like it or not, that absorption is now an accomplished fact. The Russian Duma is not likely to rebel: it’s about like Parliament in Shakespeare’s day. While Vladimir Putin may not be precisely like the Monarchs of Shakespeare’s time, or the “narcissistic autocrat” of David Brooks’ imagination, he’s the closest thing to them in our modern world outside of North Korea, Syria and Zimbabwe. Even China has a seven-member committee that decides vital matters of state, not a single man.

So what should we outside Russia do?

We could, in theory, try to take Crimea back by force. But for whom and for what purpose? The majority of Crimea’s people are Russian. They cheer their absorption into Mother Russia. So armed combat would only create a bloody civil war, with the curious goal of minority rule.

War is not an option, and not only because the US and the West are now fed up with it. War would only make things worse, much worse. If there’s one lesson that our entire species can learn from Russia’s bloody October Revolution, our Yankee misadventures in Vietnam, Iraq and Afghanistan, and Iran’s and Russia’s utter obliteration of Syria, it’s the simple, human value of doctors’ Hippocratic oath: “do no harm.”

War would do harm, great harm, and would solve nothing.

So no, war is not an option. But Shakespeare’s passions still swell within us. We want to “punish” Russia and its headstrong leader for taking what was not theirs, at least not formally, on paper.

Fortunately, our species’ common social evolution has advanced since Shakespeare’s time. We have several centuries of additional history, which serve as object lessons. And we now know, from advances in understanding criminal law, what punishment is for.

We can distinguish Hammurabi’s vengeance, which goes by the name of “retribution” today, from the more pragmatic and less passionate goals of deterrence and incapacitation. If we are to merit our self-awarded name of “Homo sapiens”—wise and rational Man—we should apply all these lessons to Ukraine.

Collective punishment doesn’t work

Insofar as retribution is concerned, collective punishment doesn’t work. Our two world wars proved that. Let’s analyze why.

The last century’s two world wars were the greatest self-imposed catastrophes in human history. Neither was necessary.

Everyone knows that the first “Great War” began with the assassination of Archduke Ferdinand of Austria. But no one besides professional historians knows why. The reasons are lost in the mists of imperialism, nationalism, collective passion, and the egotism of rulers big and small. What the Brits called the “great game,” played out on the map of Europe, simply caused tens of millions of young men to disappear, in agonized death or maiming, for no reason that makes any sense today.

World War II may have been necessary, but only because of the victors’ stupidity after World War I. The victors decided that Germany had “started” World War I, although apparently every nation involved expected it and prepared for it, and many leaders thought they could gain by it. So Germany, the clear loser and the putative instigator, had to be punished.

Punish Germany the victorious Allies did. We Yanks were on the right side of this one. Our President Wilson, who had joined the Great War to “make the world safe for democracy,” knew that democracy would not be safe with Europe’s greatest power ostracized, suffering, and resentful. He exhorted, cajoled and begged our European allies not to punish Germany collectively.

But the “experienced” leaders of the European victors did not listen to the ivory-tower Princeton professor from our still-upstart nation. They punished Germany collectively with crushing war reparations, economic isolation and trade sanctions.

The results were tragic. First came the hyperinflation that tortured Germany’s nascent and struggling Weimar democracy. That was the worst economic torture ever imposed deliberately on a modern nation by its neighbors. The result was the rise of Hitler and Nazism, the German aggression that led to World War II, the most terrible war in human history, and the Holocaust.

Woodrow Wilson, who had urged the Allies not the pull the economic trigger, didn’t live long enough to say “I told you so.” Fortunately for him, he didn’t even live long enough to suffer the Great Depression.

How do our sanctions against Iran today differ from what the Allies so stupidly did to Germany? That’s a good question, with a simple answer.

The Allies’ collective punishment of the German people was retroactive. They had “started” the war (in the Allies’ eyes) and had lost it. Without a time machine, there was nothing they could do to change any of that. So there was nothing they could do to avoid the economic torment that their neighbors imposed on them for past transgressions. They could only grow sullen and resentful, and plot revenge.

Today’s sanctions on Iran are not like that. They are not for past transgressions but against feared future plans: Iran’s building a nuclear weapon. They are prospective and contingent.

Iran can stop the sanctions at any time by agreeing to forsake nuclear weapons in a credible and verified way. That’s precisely what the talks now ongoing are all about. The Iran sanctions apply economic pressure toward a realizable goal; the German sanctions were punishment for past acts, with no escape and an emphasis on retribution, aka revenge.

The Code of Hammurabi didn’t work so well in the twentieth century, did it?

Individual punishment can work but requires proof

Our horrible last century has good examples as well as bad. After the terrible consequences of the Allies’ collective punishment of Germany had ended with a second German defeat, the Allies got smarter.

With us Yanks in the lead, and under our Marshall plan, the Allies rebuilt Germany, rather than punishing it. We saved punishment for the individuals responsible: surviving Nazi leaders, at the Nuremberg Trials.

The Nuremberg trials had three salubrious practical effects. First, they put human responsibility where it belonged: on leaders. They spared the underlings and common people, many of whom did what they had to do to survive under intense psychological and economic pressure, if not brute coercive force. (There were German heroes, like Oskar Schindler, but you can’t punish people for not being heroes.)

Second, the Trials distinguished and separated the German people as a whole from their erstwhile pathological leaders. In so doing, they gave the German people time and space to contemplate their past and arrive at the marvelous state of contrition that we see today.

Perhaps no nation in history has ever visited such horror on its neighbors and its own people (mostly Jews) as Nazi Germany did. But no nation in history has ever so frankly acknowledged and deeply regretted its crimes as today’s Germany, with its accurate schoolbooks, its official policies, and its many memorials to Nazi horror.

Neither the Turks with their Armenian Genocide nor the Japanese with their Rape of Nanking and atrocities throughout Asia have come anywhere close to Germany’s level of historical realism and contrition. Nor have we Yanks with our near-genocide of our continent’s native people or our disastrous blunder in Vietnam.

The difference lies not in national peculiarities but in the Nuremberg Trials, which made clear for our entire species—at length and with detailed evidence—just where responsibility lay. As always, it lay with individuals, those whose education, wealth, privilege, training, political skill, power and cunning let them lead others into evil.

Conclusion: the lessons of our common human past

So what can the past and our modern probing legal/social analysis teach us? What can we learn from the Allies’ tragic blunder in collectively punishing the German people? from the success of our Nuremberg Trials? from parsing punishment into its three goals: retribution, deterrence and incapacitation?

There are, in my view, four clear lessons. First, collective punishment doesn’t work. It just makes things worse. We must avoid it at all costs. We must not try to punish Russia or Russians collectively, as the Allies did Germans after World War I. If we do, we will beg history to repeat itself, this time with nuclear weapons.

Our modern parsing of the goals of punishment corroborates this point. You can’t take collective retribution on a whole people, at least not justly, because all are not equally guilty. Local prosecutors know this well; that’s why they all prosecute the “little fish” only as stepping stones to get the “big fish.”

The two other goals or punishment are equally inapplicable to a whole people. You cannot deter people who are not responsible for their leaders’ actions and may have no power to change them. All you can do is make them angry and resentful, like post-first-world-war impoverished Germans. And you cannot incapacitate a whole people without annihilating them. That would be genocide, the ultimate crime that we all want to prevent.

The second lesson from the past is that individual punishment can work, but only if meticulously justified, as at the Nuremberg Trials. The Trials were a legal tour de force, run by a United States Supreme Court Justice, with scrupulous attention to fairness and legal detail, and oceans of evidence.

At their outset, the Germans claimed the Trials were only victors’ “justice.” But when they ended, no one who had watched them could deny that Nazi leaders had committed terrible crimes against humanity, of a kind seldom seen even in ancient times. The Trials proved in excruciating detail how Nazi leaders had deliberately treated prisoners and innocent civilians with unprecedented brutality, against all civilized laws and norms, and how their own personal pathological thinking, decisions and orders had led directly to that treatment.

When the Trials were over, there could be no reasonable doubt about what had happened and who was responsible for it. The Trials themselves, with their scrupulous attention to fairness and detail, became part and parcel of the miracle of German contrition that followed. You can’t regret what you don’t know or believe happened.

We should be very careful in punishing individuals for Crimea’s absorption into Russia without such meticulous preparation and proof. Perhaps Yanukovych’s grotesquely luxurious palaces and the deaths on the Maidan are enough to condemn him alone, as he was in charge. But even his direct orders or complicity in the sniper killings requires proof.

As for lesser villains, such as complicit oligarchs, their responsibility requires much greater proof. Without it, their minions, their partisans, and the people of Russia, Ukraine and Crimea may believe they were framed for extraneous political, economic or commercial reasons. Persecution of business people for political reasons, or for sheer economic land grabs, is not unknown, even in the West.

No one gains from sloppy legal work or sloppy affairs of state. Anyone can make claims without solid proof. That’s what pols do every day, in Russia, in Ukraine, even here at home, and especially in Syria.

We did something more at the Nuremberg Trials. We put villains on trial with scrupulous fairness, mountains of evidence, simultaneous translations into all relevant languages, and years of strenuous effort. That care and effort paid off with the Trial of the Century, which became one of the seminal events in human history.

If we aren’t prepared to take similar care and expend similar effort in sanctioning Russian and Ukranian leaders now, then maybe we should pare down our current sanctions and hold greater sanctions in abeyance as deterrents against greater crimes. So far, no significant bloodshed has resulted from Russia’s absorption of Crimea, as distinguished from Yanukovych’s failed attempt to keep power.

The third lesson of the past is something that our modern tripartite parsing of the goals of punishment doesn’t teach directly: the power of example. Making examples of bad actors is one way our species advances. You can call it deterrence, but that word doesn’t capture the entire value of examples.

Making examples of villains does deter similar bad conduct. But it also does much more. It exhorts us all to do better, not only by punishing villains, but by explaining in detail what they did wrong and how they could and should have done better.

So far, that approach is utterly missing from our discussion of Ukraine. How could we have done better if we had stood in Putin’s shoes? Should we have let an untested government of corrupt and selfish oligarchs, motivated and controlled in part by untested street demonstrators, rule the Russian majority in Crimea and take over the Black Sea Fleet? Would we have trusted such leaders, in the long run, to manage the biggest military force in that inland ocean, the gateway to the fractious Middle East?

It’s one thing to point fingers at Russia for not dotting all the i’s and crossing all the t’s of international law in Crimea’s referendum and annexation. It’s quite another to explore the probable consequences of alternatives. And wouldn’t it be nice at least to acknowledge that, apart from the snipers on the Maidan (for whom Russia and Putin might bear some responsibility), the whole affair so far has transpired virtually without bloodshed?

The fourth and final lesson of history is that the Code of Hammurabi is obsolete. In the twenty-first century, its consequence and physical manifestation is Syria. Do we really want the rest of our world to be like that?

We cannot make big war in the Nuclear Age, whatever the provocation, because we might extinguish our species, as we almost did in October 1962. We can’t make little war because it doesn’t do any good. Usually, it just makes things worse. Vietnam, Iraq, Afghanistan and Syria are proving that. So war itself is virtually obsolete, at least insofar as careful, intelligent planners have anything to say about it.

From now on, we humans have to resolve our conflicts peacefully, with negotiation, compromise, political action, economic and political pressure and—very occasionally—quick, decisive action like Russia’s annexation of Crimea.

That is the message of the United Nations, with its veto-hobbled Security Council. That is the message of our sanctions on Iran and our current multiparty talks. That is the message of our acknowledgement, tacitly but universally held, that the best we can do after Russia’s action is to try Yanukovuch for crimes against humanity and sanction any other individual leaders who deserve sanctions.

But who deserves sanctions, for what and how strong? Aye, there’s the rub. If we apply sanctions without careful thought and planning, they may go awry, as they did after World War I. At best they may accomplish nothing.

Putin acted decisively and without prior consultation with his allies and “partners.” But so far adverse consequences have been few. Ukraine (sans Crimea) is still free and struggling for political order and economic independence. There is no civil war and, apart from sniper murders on the Maidan, there has been no significant violence. However awkward and insufficient by international standards it may have been, there was a vote in Crimea.

And there may be some long-term benefits. Crimea is now under majority rule; continued minority rule might have produced civil war, or, at best, continued ethnic tension. The Black Sea Fleet is secure and under the direct control of a nation (Russia) which so far has used it responsibly. There is no risk of separatists, extremists groups or terrorists overrunning an historic center of power and a source of stability at the juncture of three continents. Peace appears in the cards for the Black Sea and perhaps for Ukraine, as long as Russia doesn’t overplay its hand in Ukraine’s East.

All this could not have happened without careful thought, planning and restraint on the part of Russia, Ukraine’s new leaders, and both Ukranian and Russian military forces in the area. If we must sanction individuals, we should devote at least as much thought, planning and restraint to them.

Sanctions are the new moral substitute for war, and shooting from the hip is never a good idea, whatever your weapon. This is one time when we Yanks should be content to have a President who thinks long and hard before acting.

P.S. As we apply and shape sanctions against individual Slavic leaders, we should take care not to confuse the actor with the act. We should bend over backwards not to hold grudges from the Cold War.

What would we do, for example, if France had retained a key military base in, say, Algeria? Suppose that an Islamist insurgency threatened the stability of the surrounding region, which had been settled over many years by French military families, and which had become a bulwark of stability in North Africa. Suppose France arranged a hasty plebiscite and annexed the region of Algeria containing the base, to preserve its power in the region, maintain stability against disorder and protect its own people living there. Would we sanction France’s business and political leaders, including President Hollande?

If not, we should be able to articulate precisely the differences and reasons for sanctioning each Russian leader and oligarch, including Putin. (Yanukovych, a clear local villain, is an entirely different story.) And if we can’t justify each set of sanctions, in detail and with reason, then we shouldn’t apply them. Bashing Russians just because they are Russian and because we spent half a century locked in a Cold-War struggle with them is no better than bashing Germans after World War I. That didn’t turn out so well, did it?

Something New: Rehabilitation

While on the subject (if indirectly) of crime and punishment, a word on rehabilitation is mandatory. Strictly speaking, rehabilitation is not a part of punishment, and law schools don’t teach it as such. But rehabilitating criminals has become an important part of our Yankee criminal justice system because it works.

Criminal-justice experts have discovered that not all criminals are such because they have irredeemably criminal minds. Many become criminals because they grew up in neighborhoods that offer few, if any, alternatives. The hard life on their streets trained them as criminals, most often in the lucrative but dangerous drug trade.

The experts who first noticed this put two and two together. Many prisoners went into crime because their environment pushed and trained them into it. Yet while being deprived of liberty as punishment, they have lots of idle time. So why not use some of that idle time to retrain them, give them a more benign and promising economic future, and raise their life prospects and self-esteem?

That’s rehabilitation. It involves such things as teaching illiterates to read, training inmates in a trade, teaching anger management and conflict resolution without violence, personal and psychological counseling, and for some, even higher education. Every year, some inmates “graduate” from college and from prison at about the same time.

When adequately funded and effectively managed, rehabilitation can lower the criminal recidivism rate and turn “wasted” youth into good citizens. It’s part of the genius of social engineering that once made our nation supreme, and that some day may again.

Could we apply the concept of “rehabilitation” to our relations with Russia? At first glance, the notion seems odd and even condescending. But stay with me.

What makes Russia different from the other major powers? Its history. In the last two centuries, Russia has suffered more—from multiple invasions, revolution and Stalinist terror—than any other major power on Earth.

The result is two unique aspects of Russian culture. First is an almost pathological fear of disorder of any kind. That fear made both Russian leaders and Russia’s people see the tumult on the Maidan completely differently from us Yanks. It’s a key source of misunderstanding between our two cultures.

The second unique aspect of Russian culture is a much higher tolerance for authoritarian government than you find in almost any modern nation, including China. To Russians, authority means order, and order means relief from chaos and unbearable suffering, with which Russians are well acquainted.

Respect and even yearning for authority is as deeply embedded in Russian culture as our Yankee tendency to challenge and test authority is in ours. Our old Vietnam-era Yankee slogan, “Challenge Authority,” could not be more foreign to Russians if it were writ in Sanscrit.

These unique aspects of Russian culture are a source of constant friction with the West. Where we Yanks see freedom fighters on the Maidan and Tahrir Square, Russians see chaos leading to horror. They fear that Ukrainian independence will lead to some strongman like General el-Sisi persecuting Russians in Eastern Ukraine as if they were the Muslim Brotherhood.

When Putin vows to protect ethnic Russians wherever they may be, Russians see a necessary warning not to persecute or mistreat their expatriates. We Yanks see a prelude to the Russian bear becoming a bully again and taking back the Soviet Union’s old vassal states. Each point of view is emotionally driven, with aspects of unrealism. But each contains the seeds of miscalculation and error.

What’s the best antidote? Continuing to work together on common problems in both nations’ interest. Ostracizing and isolating Russia would just make matters worse.

“Rehabilitating” Russia sounds condescending. What we really need to do is to continue to rehabilitate our mutual relationship.

Contrary to our mutual fears and mistrust, that relationship has been growing more, not less, cooperative. Russia let us overfly its territory to support our efforts in Afghanistan, which Russia hopes will help stabilize its Islamic south. Russia even pays the fees for air traffic control. Russia is working hard to rid Syria of chemical weapons, which could end up being used by terrorists against Russia, Israel, or us. Russia is helping us negotiate a deal to stop Iran from getting nuclear-weapons capability and end our Little Cold War with Iran. And Russia has every interest in halting Sunni terrorism, if only by attracting all jihadis to the battlefield that Syria has become and slaughtering them.

Should we let Russia’s fait accompli in Crimea blow all that up? I don’t think so.

Rehabilitating our relationship with this central Eurasian power is a long-term project. There will be progress, and there will be obstacles and setbacks. There will always be signaling of divergent interests, such as Russia’s understandable desire to protect its expatriates, and our desire to see a more independent Ukraine. Sanctions on individuals can be a part of this signaling, but we shouldn’t get carried away with them.

What both sides must do is understand and respect each other’s core interests, avoid hysteria, and continue to work together, through good times and bad. Is there really any alternative?



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