A katana, an iron bar, and prison

1.

In the early hours of August the 10th, 2018, Jett McKee broke into the home of Hannah Quinn and Blake Davis. McKee pulled a gun (only later revealed to be fake) on Quinn & Davis and demanded money, he then knocked out Davis with a knuckleduster blow to the forehead.

McKee fled the home with Quinn in pursuit. Davis woke up, groggy, and chased after them both, carrying a katana. He then claims, not implausibly, that he found Quin cornered by the apparently gun-wielding McKee, and so he struck Mckee on the head with the katana, killing him. There is some dispute over exactly what happened in the confrontation outside, with the prosecution saying McKee was simply running away. The judge’s conclusion was that McKee had not posed any immediate threat to Quinn when he was struck with the killing blow. Whatever the jury thought had happened, they did not believe it qualified as self-defense. Thus, under section 418 of the NSW crimes act, the jury presumably either thought his conduct was not properly:

“to defend himself or herself or another person”

Or it was not:

“…a reasonable response in the circumstances as he or she perceives them.”

The couple then panicked and went on the run before being eventually apprehended by police. Blake Davis was found guilty of manslaughter, but not of murder and sentenced to five years and three months imprisonment, with a non-parole period of two years, nine months. Hannah Quinn was found guilty of accessory after the fact and was given a community corrections order.

We’ll give the jury the benefit of the doubt and assume manslaughter really happened and was proven here. The sentence of the judge was, in many ways, not unreasonable given prevailing legal standards (anything less might have been reversed on appeal), and very welcome given the almost comically aggressive way the prosecution pursued the charge.

Nonetheless, I think this is a great place to step back and think about why we send people to prison, and how we can reduce that number.

I won’t bore you by reviewing in any great detail the case that can be made that Mr Davis shouldn’t have been imprisoned but here is the case in brief: Whatever a reasonable response might have been to the circumstances, he had just woken up after being knocked out. He was presumably scared and confused, both because of the nature of the situation, his own injuries, and his prior mental illness (PTSD). The character of his crime means he was very unlikely to repeat it. A severe non-custodial order would get the point across.

I want to change the way we look at prison. More generally, I’m concerned that we don’t really see violence enacted by the state properly- it is veiled behind law and politics, and that makes us not properly understand it as what it is, violence just like any other violence. Like violence generally, it can be necessary, but before we can decide that it is necessary, we must do our due diligence by grasping it as violence. Once we’ve done that, it will become very clear that the use of prison needs to be restricted. What I’m going to propose is a sort of mental exercise, in the form of a thought experiment, intended to make us confront social reality without the veil of custom, depersonalization, abstraction, etc.

2.

Put yourself in the shoes of the judge. You’ve just decreed there is to be a custodial sentence. However, the officer of the court nervously clears his throat.

“Your Honour, I have just been informed by the prison administration that there is no room left in the prisons. However, our government, in their wisdom, have devised a cost-saving alternative.”

The officer pauses and pulls out a large crowbar from a bag at his feet.

“Being beaten by an iron bar severely enough to be hospitalized is roughly as painful as a multi-year stint in prison. Therefore, her majesty’s government has determined that in cases like this, beating with an iron bar will be substituted for imprisonment. Medical specialists will be on hand to carefully supervise the beating, to ensure that, while traumatic, it will not be lethal. Since you have assigned the sentence, you shall carry it out. Unless, of course, your honor would like to revise your sentence? Perhaps a large fine or a community corrections order with stringent restrictions would be sufficient?”

What I am suggesting is that if you wouldn’t be willing to beat a person severely with an iron bar, you shouldn’t be willing to send them to prison.

We’re saying, for the sake of the hypothetical, that an iron bar is just as frightening as imprisonment (it’s an equal deterrent), and incapacitates the victim as much as imprisonment from future crimes (say, by causing permanent damage to the musculoskeletal system). We’re also saying that the permanent damage and difficulties caused are, on average, the same as being sent to prison.

Certainly, a look a the literature on the effects of imprisonment suggests that this doesn’t make imprisonment out to be worse than it is. If anything, it grossly underestimates the effects and risks of prison relative to serious physical assault. Evidence from America suggests that in that country, one year of prison reduces life expectancy by two years, and that, depending on high-school diploma status and race, being incarcerated for the first time reduces lifetime earnings between 267,000 and 1 million dollars.

I’m not an expert on this literature, but I think both commonsense and survivor testimonies would tend to indicate that going to prison is extremely bad. If anything, it is quite a bit worse than getting thrashed with an iron bar.

I think that almost no one, save a few sadists, and perhaps some of the relatives and close friends of Mr. McKee would be willing to beat Mr. Davis with an iron bar. Now if Mr. Davis were, for example, serially violent, people might reluctantly agree to do it if the alternative was for him to simply walk free or face a comparatively mild community corrections order, but they would do so with “fear and trembling”, conscious of the dreadful choice they were making, and of the impact, it would have on their own psyche.

My fundamental claim- which is debatable, but which I will not get into debating here- is that the foreseeable consequences of your action are what you are accountable for. Perceptions of increased or reduced “brutality”, abstracted from the actual consequences of an action, are irrelevant to its morality. Above all, I’m saying that if being directly exposed to the consequences of your own actions, and having to cause those actions in a more direct sense, would make you reconsider those actions then you should reconsider them without delay. Don’t send people to prison, or condone sending them to prison, if you wouldn’t be willing to beat the shit out of them.

3.

Above all, what I want to rip through is something I call the legal veil. Our different reactions to prison vs beating someone with an iron bar are just one instance of the legal veil. Let me introduce it with an example.

Suppose a politician admitted, on tape, that the main reason they were introducing some bit of legislation that would jail thousands of drug users was politics. Oh, there were some considerations of public health, to be sure, but the overriding reason was to appease the police union and shore up hardline tough on crime voters.

There certainly could be a big reaction. It might even be talked about internationally. Very, very few people, however, would treat it as morally identical to the discovery that the politician in question was a serial kidnapper and torturer even though they involve the same kinds of harms and the same kind of malice and aforethought. This disparity in treatment is what I call the legal veil. We don’t see officially sanctioned actions as equivalent to private action.

The legal veil has a number of different components to it. One is that legal actions are often, or perceived to be, “cleaner” and less brutally direct than things that do similar harm- hence the difference in our reaction to putting someone in prison and beating them with a steel bar.

But there’s another component- the perception of legitimacy or authorization. I’m not denying legitimacy is real, I just don’t see why it should excuse actions that are clearly not bona fide striving for the common good. This aspect, of the perception of legitimacy, also relates to iron bars versus prison insomuch as if our society regularly authorized beating with iron bars, you’d probably feel a lot less squeamish about it.

There are some legitimate reasons why we should cut politicians, judges, senior public servants, etc. some slack. For example, people in these positions make an extraordinary number of decisions involving life and death and are therefore bound to get some wrong. My intention then isn’t to excoriate for bona fide mistakes- the legal veil probably leads us to the right conclusion then in some cases, even if for the wrong reasons.

But often those who benefit from the legal veil are actually more culpable than those who do similar things for other reasons. Consider again, for example, the politician who extended the war on drugs for political reasons. He, unlike the man who kidnaps and tortures for his own sadistic pleasures, has made specific oaths and promises not to do that sort of thing. Arguably he’s worse then. Now granted, if you had to pick one of them to babysit your kids you’d probably go with the politician, but this is a judgment of dangerousness, not of moral depravity.

Think concretely, specifically, and honestly about the exercise of power.

An X-ray of a severely broken bone, as might be inflicted by an iron bar.