Credit for good deeds

Tim Burke draws a distinction between personal crimes, for which the criminal's other good deeds can mitigate their sentence, and crimes against the public at large, where that shouldn't happen:

If some punk off the streets breaks into a house and rips off some jewelry, maybe I’d be willing to find mitigation in the fact that he also volunteers at the local soup kitchen, is nice to children, has a little dog named Smookums and was abandoned by his father when he was six. Theft from the public by a public official, whatever his character, is of a graver offense than one person stealing from another person, and nothing should mitigate its gravity.

This distinction is used to oppose good-deeds-related mitigation of the sentence of a state senator whose crime fell in the public category. I agree with his position on said senator. But I would go farther and argue that a person's other good deeds should never count as mitigation for a sentence, even for personal crimes.

The key issue to me is whether the justice system is judging actions or character. I think it should be the former -- you're called in front of the judge because of a specific act you did, and so the punishment should be based on the nature of the act and the likely consequences (deterrence, incapacitation, rehabilitation, etc) of punishing it. I think many of the problems in our current justice system (and in our society more generally) arise because of a desire to judge people's character -- that is, to punish them for being "bad guys," treating the crime at issue as merely a test to diagnose their bad-guy-ness. (That's why, for example, the definition of impermissible entrapment by the police is so narrow, and why parole and probation systems so often seem to be designed to make the parolee/probationer fail -- if you're looking to find the bad guys, it makes sense to provoke them into doing something bad so that you can get them off the streets and punished before they have a chance to commit a real crime.) The most obvious rationale for good-deeds-mitigation is a character one (Burke even uses the word "character" in the quote above) -- the good deeds show that you're not really a bad guy, so you don't deserve the kind of punishment we'd give someone whose crime revealed them to be a bad guy.

But good-deeds-mitigation is still problematic if we put it in an acts-based framework. Let's say Burke's hypothetical punk did all that good stuff, but didn't rob anyone's house. The court wouldn't call him in, hear the evidence about his good deeds, then award him some sort of bonus above and beyond the basic civil rights accorded to his less-public-spirited compatriots. But yet Burke, and our current justice system, would give him a bonus if he were caught committing a crime. (By the same token, I don't think that bonuses one might in fact get for one's good deeds -- say, a "volunteer of the year" award from the soup kitchen -- should be mitigated by unrelated bad deeds. I think Burke's punk should get the volunteer award and the full robbery sentence, since they're distinct things and he did the qualifying deeds for each, rather than getting neither because they cancel out.)

Indeed, one could read a good-deeds-mitigation scheme as saying that you can build up credit through good deeds, then use that credit to buy laxity about violating the rules -- serve enough soup at the soup kitchen, and we'll let you rob someone's house. But if there's a good reason to ban robbery and impose a certain size sentence on it, that reason is still good even if robbers do other charity work. And such a setup reinforces the pernicious idea that virtue consists in self-denial and all the fun stuff in life is against the rules.

Bathrooms as Citadels of Privilege

I think CaitieCat is right on in this post about the stupidity of anti-trans bathroom rules (and her side point about not making blanket statements about First Nations). What pushed the post from "del.icio.us link" to "write my own post about it" was the comment by Kevin Wolf, echoing the exasperations of many other commenters over many people's extreme panic about bending the "cis men in this one, cis women in that one, nobody else can pee" system of bathrooms:

What is it about public bathrooms with some people? Like it's the Citadel of Privilege in which they have a sit down.

From a sociological/anthropological perspective, it makes a kind of sense that bathrooms would be a place where anxieties about transgressing established cultural boundaries (including the boundaries that give one group privilege over another) would run high. Many cultures*, including especially modern North American culture, have a nature-culture distinction as a core theme. We set ourselves up as supremely cultural beings. This creates a tension with the fact that we obviously still inhabit natural bodies, bodies which have to do things like poop. Confronting this natural side is dangerous, because it can overwhelm and embarrass our cultural pretensions. There are a variety of ways to manage this tension, one important one of which is to shift natural functions to "backstage" areas such as bathrooms, where they can be handled outside of the main stream of social life**. (This is probably why many people find it so uncomfortable to talk to others while in the bathroom, and some people's bladders lock up if they know others are in the bathroom with them -- it's a mixing of frontstage social activity with backstage bodily functions.)

A bathroom, then, is both a place of relief and a place of vulnerability. You can go take care of functions that were threatening to upset your cultural performance out in the frontstage area. But you're also in a place where "natural," animalistic activities are given freer rein, outside of the constraints posed by culture. This makes you acutely aware of other sorts of cultural transgression. In particular, the bodily location of the excretory organs right next to the reproductive ones makes sexual transgression a particular worry in the bathroom context. Hence predatory stranger-rape is highlighted as a concern, since even in a culture that excuses rape in many of its manifestations (e.g. accepting the "she was asking for it by wearing that miniskirt" defense), predatory stranger-rape is held up as an archetype of violating social norms.

If your culture also contains a strong gender division norm along the lines of "a person born with a penis is a man, and a person born with a vagina is a woman, and that's all there is," then the presence of a trans person in the bathroom is going to trigger a high level of anxiety about boundary-blurring and nature spilling out over culture. (To be clear, my point is not that trans people are more "natural" or represent some kind of revenge of nature -- just that they're interpreted that way in a culture that has adopted the particular norm of cis gender dualism.)

Thus, the price of allowing the necessary but anxiety-creating relaxation of cultural norms like "don't drop your pants and poop" is frequently careful adherence to other cultural norms, which in a privilege-based culture will turn the bathroom into a "Citadel of Privilege."

*I'm dodging the Ortner/Srathern debate about whether and in what way we could say "all cultures" here.

** Obviously hygeine is a consideration here too -- my claim is that bathrooms serve a cultural function in addition to their hygenic one.

Blasting forward to 2004

I'm trying out this social bookmarking thing, so there's now a widget at the top of the sidebar showing things I've recently read but don't have thoughts on extensive enough to make a post.

Obama plays cowboys and Indians

Barack Obama seems to have an affinity for the pioneer narrative as a case study of American greatness. He doesn't dwell on it at length -- instead, he references it, implying that its content is well-known and unproblematic. For example, in his Fourth of July message, he said:

That unyielding spirit is what defines us as Americans. It is what led generations of pioneers to blaze a westward trail.

This statement makes an identification between Americans and westward-blazing pioneers*. But think about what those pioneers were doing -- they were driving out a set of Americans who were already there. In Obama's message Native Americans are not Americans, they're part of the adversity that real Americans needed an "unyielding spirit" to overcome. They fall in the same category here as the British and the Great Depression, plus our current wars and economic troubles (Obama's other brief examples of adversity overcome by America). That is, if they're there at all -- the pioneer narrative often makes Native Americans disappear altogether, leaving a wilderness that's hostile because of its pristineness. Perhaps next year Obama could praise the "unyielding spirit" that "led generations of pioneers to blaze a westward trail, and led generations of native people to resist those pioneers and rebuild their culture in a greatly changed country." It would be an interesting trick to acknowledge the US as an agent of colonialism on the very day that we celebrate our narrative as the country that threw off colonialism in 1776.

*You could also construct a pioneer narrative for Asian and Latin@ Americans, though their trails were blazed mostly eastward and northward respectively.

Is the problem the cap or the trade?

The U.S. is moving toward possibly instituting a "cap and trade" plan for reducing non-agricultural greenhouse gas emissions. As suggested by the word "and," cap and trade really consists of two policy instruments -- a cap to dictate a maximum allowable level of emissions, and a trading mechanism to determine where the needed emission reductions occur.

Environmentalists are often uncomfortable with the "trade" part of cap and trade, preferring a more traditional non-market regulatory scheme ("just cap"). There are two common families of environmentalist counterarguments to cap and trade. One is that the market is inherently degrading, that it's immoral to use dirty* money to take care of something important like environmental protection. Little justification is ever given for this way of thinking, and as a pragmatist (in the lay and philosophical senses) I don't see much merit to this sort of blanket moralism.

Another line of attack on the trade part of cap and trade has to do with the fact that the people causing the problems in the first place are the big fans of trading -- business and industry. So there seems to be reason to suspect that making a concession to them by building on a market mechanism would weaken an environmental policy. My pragmatism would again move me to reject any simplistic blanket declaration that "businesses like markets, businesses destroyed the environment, therefore markets are bad." But it's more than plausible that the market mechanism could introduce distortions and unintended consequences that undermine the environmentally protective aims of a cap and trade policy.

This article by Janet Wilson seems like it's going to lay out some of those sorts of distortions and unintended consequences by taking a skeptical look at some existing cap and trade schemes. While she shows that, contrary to some pro-cap-and-trade hagiographies, these schemes haven't achieved their goals, she doesn't show that it was the "trade" part that was the problem. In every case, it seems like the problem lies with the cap. That means that eliminating the trade and going to a pure cap wouldn't fix things.

Wilson starts off with the U.S. Clean Air Act's anti-acid rain cap and trade. Her conclusion is that it helped, but hasn't done enough. The culprit, it becomes clear, is the cap -- the science at the time the policy was made was too optimistic about how much emissions needed to be reduced to de-acidify the northeast's rain, so the cap was set too high. But this means that a purely regulatory approach, which would have been based on that same optimistic science, would have made the same mistake and also set too high of a cap.

Next, Wilson discusses a cap and trade plan to reduce smog in Los Angeles. Again, it made some progress, but didn't fix the problem. At first glance, problem #1 with the policy seems promising as a counterargument to cap and trade. Due to political pressure surrounding past recessions and the California energy crisis, pollution credits were over-allocated and compliance was poorly enforced. It's a classic case of regulatory capture by big business. However, big business did its dirty work not by fancy trade maneuvers, but by getting the cap loosened. Had LA had a pure cap, polluters could have pursued the same strategy and convinced the government to loosen or not enforce the cap. Problem #2 in this case also doesn't tell us much about the desirability of cap and trade. Much of LA's pollution comes from cars and trucks, which the state and local authorities who created this system aren't allowed to regulate through any policy mechanism.

Wilson moves on to Europe's cap and trade scheme for greenhouse gases. She points out that it has made little impact, because emissions credits were over-allocated and offsets weren't verified. Just as in the LA case, though, these are problems with setting the cap, not with trading the permits. A purely regulatory approach could just as easily have been too generous in the emissions it allowed polluters to get away with. Finally, Wilson documents the same problem afflicting the new cap and trade plan implemented by 10 northeastern states.

In passing, Wilson twice mentions something that could be a serious criticism of cap and trade plans: the "environmental justice" argument, which holds that cap and trade would allow uneven distribution of pollution (a few polluters could continue being really dirty as long as they can get credits from somewhere else that's super-clean). In addition to the straight-up distributional inequality, you could get added problems if, as is likely, the dirty polluters were the ones in poor neighborhoods and/or neighborhoods of color. The catch with this argument, though, is that it depends on the nature of the pollutant and the size of the trading area. If the dispersal of the pollutant's main effects is over a smaller area than the area in which it's traded, you can get unfair concentrations. But if the pollutant disperses more widely than the trading area, it's irrelevant where it's initially emitted. Greenhouse gases have global effects, so they fall in the latter category -- one state or country can't create a bubble of non-changed climate around itself by eliminating carbon emissions, because that reduction will be spread out to the whole world.

Note as well that another popular mechanism for controlling greenhouse gases -- a carbon tax -- could suffer from the sorts of problems Wilson outlines just as well. Setting the tax rate for a carbon tax requires estimating a cap based on the environmentally-needed emissions reduction level (plus whatever extraneous political considerations enter in), as well as monitoring and enforcement by the government. Bad science and business pressure could easily result in a too-low tax, and poor efforts in catching violators.

*There's an interesting point to be made here from a Mary Douglas-ian perspective about the foundational metaphor of money and markets as dirty and how that shapes thinking about environmental issues.