Systems of punishment can have unintended consequences

Maybe we’re born believing things. We learn most of what we think we know from our parents and other adults we’re around when we are young, from teachers and peers. But we do have certain instincts — innate, fixed responses to certain stimuli. There are things that don’t have to be taught.

Our moral sense is probably not one of these things, however much it feels installed. Some people believe in punishment, that it’s only right to make bad actors face the consequences for their bad actions. For them, making society safer may be a welcome side effect of incarcerating criminals, but it’s not the point. Some people believe people ought to get what they deserve.

Others wonder more about the efficacy of punishing people. Maybe it’s dangerous to want everyone to get what they deserve, because, as Little Bill Daggett reminds us in “Unforgiven,” we all have it coming.

Prisons ought to exist to protect society and to try to salvage people who have made mistakes. We ought to try harder to keep people out of prison. Drug problems should be more the concern of health-care professionals than law enforcement, and the death penalty is unnecessary and a cynical sop to the darker side of our nature. We should avoid deliberately killing people when we can.

But I understand why people believe in punishment when considering some of the things that people do to one another. If evil is not a naturally occurring phenomenon, it is in the world because we invented it. If I had a rocket launcher, the song goes, I’d make somebody pay.

And so, even though I sometimes wish for rocket launchers, I am glad I do not have one. No strike is so surgical that it obliterates only what is evil. When we put someone to death it’s not just the murderer who dies — it’s the son, the father, the friend, the creepy guy who sat drinking coffee alone in the break room that no one ever talked to.

We have laws to remind us to behave. We might want to go after Harvey Weinstein with a baseball bat, but retribution is not our business. We want to remove the threat, not torture the offender.

What we ultimately want to do is progress, to make our lives and our society better, to work toward the shining hour we know will never come, when all of us can live together in mutual respect, with dignified work and confidence in our own value. We will not perfect this world, but we are called upon to try.

After Aya Gruber got out of law school, she worked as a public defender in Washington, D.C. A lot of the people she defended were young men, invariably poor (why else would they be represented by a public defender?) who were accused of domestic violence and/or sexual assault of women with whom they were sharing their lives.

Since Gruber considered herself a feminist, you might expect that she might have had some problem defending these young men who had abused their wives and girlfriends. Violence against women is a terrible problem in our society. Men are scary creatures who can use their physical power in malignant ways. A lot of women live in fear of what the men in their lives may do to them.

If you believe in punishment, you might believe that these sorts of offenders should face harsh sentences, that they should be locked away in cages where they cannot victimize women. You might wish to see them humiliated. You might hate them.

But things are never really simple. Gruber saw what happened with her clients, and how the punishment they received often affected the women, who often, because of human circumstances, had never detached from their abuser. Maybe they had a kid together, maybe it wasn’t economically feasible for the couple to separate, maybe the victim knew the victimizer as something more than an angry, selfish man incapable of controlling his emotions.

Maybe there was a better answer than punishment.

So Gruber, now a law professor at the University of Colorado, started wondering about the unintended consequences of feminism. Starting in the 19th century, feminist movements have been fairly successful at criminalizing violence against women that in previous times might have been considered if not a man’s prerogative, at least a private matter.

But Gruber also knew about the practical cost of locking up men for these sorts of offenses, and the impact of their incarceration on society in general and the women who cared for and about them in particular.

And maybe, she thought, the pendulum had swung too hard in the other direction, with zero-tolerance anti-violence laws and policies such as mandatory arrests, no-drop prosecutions, forced separation, and incarceration tending to make women less safe and more fragile.

She presents her argument in a new book, “The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration.”

Rather than send someone she loves and/or depends on for economic support to jail, maybe a woman would put up with abuse. The criminal justice system, with its historic hostility to poor people, might not be the best place to address these problems, according to Gruber:

“Understanding that policing, prosecution, and punishment are largely fixed institutions, with embedded authoritarian and racialized features, shatters the illusion that throwing criminal law at the gender issue du jour is an exercise in gender justice.”

Gruber believes the best approach isn’t locking up more men, but focusing “on the cultural, social, and economic circumstances that underlie crimes against women, including patriarchy and sexism,” with the belief that gender-based crime is best eradicated through a more equal society built from the ground up — and unequal systems should be completely disassembled.”

While her arguments are persuasive, it’s difficult to let go of a certain self-righteous, cathartic anger I feel toward men who abuse women. They deserve to be locked up, they ought to suffer; the worst sort of crimes ought to be redressed by strong action.

Deep down, I believe that.

But that doesn’t make it right.