Apart from all of the partisan bickering that's been going on over who should bear the blame for the results of Hurricane Katrina - one interesting question has repeatedly made its way to the forefront of the discussion: what should be done about the looters? Specifically, is the use of lethal force against looters justified?
There are well-intentioned folks in error on both sides of this debate. Some have advocated "shoot to kill" against the looters in a kneejerk reaction of human disgust. Some, on the other hand, cannot distinguish between looting and petty theft, and why the punishment should potentially be different for the two offenses.
Basic punishment theory teaches us that neither of these approaches are correct, and that the truth - as it frequently does - lies somewhere in the middle.
More below the fold:
Punishment, as a public policy objective, is generally viewed to serve three societal purposes: Deterrence, Reform, and Retribution. Some punishment theorists (mainly death penalty opponents) have attempted throughout the years to deligitimize Retribution as a policy goal of the state - primarily because it suits their own pet cause to note that the death penalty is rather obviously useless for reform, and it is arguable whether it serves as an effective deterrent. Therefore, they say, retribution should not properly be viewed as a part of legitimate punishment theory.
However, not only is retribution a valid part of punishment theory, it is the essential aspect of any valid punishment theory. If punishment is not fundamentally based upon the principle of "giving the lawbreaker his due," then the justice of punishment quickly dissolves. After all, it is a psychologically established fact that it is more effective (from the perspective of deterrence and reform) to visit punishment on the loved one of a lawbreaker, rather than on the lawbreaker himself. In other words, if I am caught stealing, and my four year old son is punished in my sight for my sins, that is, from an efficacy standpoint, far more effective than punishing me for my own sins. And thus the foundation of personal retribution is the essential consideration of any punishment theory that can remotely be called just.
It is important to realize that some acts of punishment by nature will only fulfill one or two of the policy objectives mentioned above (the death penalty being the most glaring example). Generally, however, as a matter of public policy, whichever approach satisfies all three to the greatest utility will be preserved, with the caveat that societies have generally placed a greater emphasis on retribution as the foundation, followed secondarily by deterrence, with reform lagging behind as a distant third. Some may quibble, but I contend that this is as it should be, given my own conservative views of the nature of government, and the limits of its role as a reforming entity - in comparison with its role as an entity that exists to keep order.
Again recognizing the quibbles some may have with the specifics, it is a point of general agreement by those who do not exist on the far sidelines of the discussion that the first question that should be examined when considering whether a given punishment is appropriate is to measure whether it is appropriate from a retributive standpoint. And so we ask, "What constitutes appropriate retribution?"
A rather simplistic answer is that retribution would demand that a person should be punished in a manner commensurate with the crime they have committed. However, societies have generally eschewed this view on the basis that provides no deterrent value. If a man steals an ox, and he is punished by having an ox taken from him, he has, in the end, come off none the worse for the transaction. In fact, a significant argument can be made that not only has his punishment not served as a deterrent, but in fact that he has not been punished whatsoever, in the way that we understand punishment. Thus, generally, the severity of the retribution has generally been somewhat more serious than the severity of the crime. Various societies throughout time have obviously differed on how wide the disparity should be (should theft be punished by the severance of a hand, or the confiscation of a greater part of the thief's property?) but the principle is that disparity has always existed. Each society generally determines its own mores, which change throughout time, as to where the line should be drawn.
In the case of looting, which in many respects is equivalent to petty theft, it seems fairly obvious to our American sensibilities that death without trial is not an appropriate retributive response for the crime of theft - and indeed the societies who would have held that view would be very rare indeed, even throughout antiquity (with the caveat that petty theft is under consideration). However, there are many ways in which looting is siginificantly different from other kinds of petty theft, and therefore deserves a different kind of punishment.
Looting is a specialized kind of theft that takes advantage of the fact that the likelihood of retribution has dipped below a certain level. In other words, looting is what happens when whatever is being done in the way of deterrence has completely and utterly failed. The question that presents itself to us is this: Is it justified to raise the retributive level of a punishment if the needs of deterrence demand it?
Generally, we answer this question in the affirmative. In most cases, it would be viewed as wholly inappropriate to use tear gas and/or taser guns as retribution for simple trespassing. However, when trespassing occurs en masse as part of an unruly mob, the directive of deterrence and the mandate of the government to promote order through deterrence generally justifies the elevation of retribution beyond its normal bounds. This elevation, however, is not without limits. We would generally be aghast if instead of tear gas and taser guns the police immediately resorted to lethal force to disperse an unruly group of protestors.
Essentially, we have boiled the question down to this: can a crowd ever become so unruly that the use of lethal force upon some of them is justified to deter the continued action of the rest of them? In the case of New Orleans, the question is a very difficult one indeed.
Some cases are relatively easy. Those who shoot at relief helicopters have "earned" a lethal response. However, we would generally believe that taking a TV from Radio Shack does not "earn" a lethal response. Does the need to restore order and deter this behavior on a massive scale justify the elevation of the response to one of instantaneous death?
As much as I hate to end a post with a question, in this case I must. Such a decision is high above my "pay grade" and a level of responsibility that I'm willing to assume. Were I the governor of Louisiana right now, given what I know of the situation, I'd say probably yes. But it would be a decision that would probably haunt me to my grave. What frightens me at this point, are those who are all too ready to pull the trigger without thought, and likewise those who would just as eagerly eschew the option altogether.
May God help the residents of New Orleans.