Odium Surplus/Odium Deficit

A common way to talk about crime and punishment is to liken them to debt and repayment: A crime creates a debt to society; if the criminal is caught and convicted, a just sentence will ensure his debt is repaid, but nothing more.

This analogy appeals partly because it explains victimless crimes a lot better than a harm-and-restitution approach. If we agree that society has an ongoing interest in you, then it’s reasonable for society to enforce its rights against you, even if you hurt no one else at all. When you smoke marijuana, look at pornography, or eat too much bacon, you have created a debt to society. That debt must be repaid.

The end point of this logic is, alas, obscure. Where do society’s rights against the individual end? We answer the question through the political process — which all by itself ought to indicate that something is amiss with the analogy. The outcomes of the political process seem to have very little necessary connection to the amount of debt that a crime creates.

A more telling critique of the debt-to-society model is that virtually all crimes have some reasonable consequences that lie far outside of their statutory punishments. An embezzler who has served his sentence is still mistrusted; a murderer is still feared. No one finds either response terribly problematic.

Call it an odium surplus whenever a criminal or presumed criminal still carries odium in addition to any sentence he may (or may not) have served in connection with his crime. Call it an odium deficit whenever a criminal has something like the reverse of odium, again considered outside the sentence he may (or may not) have served. Those with an odium surplus aren’t fully paid up and thus get more punishment; those with an odium deficit are… very often heroes.

Here’s a good example of an odium surplus:

While the Texas sodomy law and similar state laws around the country were not usually enforced against private activity, this did not mean they had no effect on the lives of gays. The state of Texas even agreed in one of the court challenges to the law that it “brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law.” Homosexuals, unprotected from job discrimination in Texas and most other states in the 1990s, could be fired simply for being gay. Divorced gay parents could lose custody or face onerous restrictions on visitation with their children on the ground that they were presumptively criminals. Legislators used the existence of the sodomy law as a reason not to grant any civil rights protections to homosexuals. (p 16 of Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas)

On the books, the punishment sodomy was a fine and nothing more. Very obviously, that was only a part of the story.

Odium surplus also explains why criminal defendants were reluctant to challenge sodomy laws. Carpenter notes that most people preferred to plead guilty or no contest, quietly pay the fine, and hope that no one would notice. They were trying, in other words, to avoid the odium, which seems to have been by far the worst part of getting caught violating these laws. Note that for the individual defendant, it wouldn’t much matter whether the law was struck down or upheld — the odium would remain.

And what’s an odium deficit look like? Consider DC food trucks:

For more than two months, the D.C. Department of Public Works has been cracking down on food trucks that have exceeded the city’s two-hour parking limit for metered spaces.

In October, the department created a rotating two-person unit to issue parking tickets to food trucks, according to a statement Thursday responding to questions e-mailed by The Post. The unit has issued 68 parking tickets to food trucks since it was created, the statement said.

“The DC Department of Public Works enforces parking regulations to encourage turnover in metered parking spaces so customers may reach District businesses and help residents to access parking spaces near their homes,” the agency said in the statement. “This enforcement is in response to strong competition for legal curbside parking and reflects the needs of residents, businesses and the motoring public.”

Kristi Whitfield, president of the D.C. Food Truck Association, said parking enforcement officers appear to be targeting food trucks while ignoring parking violations by other vehicles. She said she constantly hears complaints from vendors about the parking fines.

“No one is complaining about tickets that are fair, but that they are administering the law unevenly,” Whitfield said.

In this case, it’s the government that bears the excess odium. Unequal enforcement of the laws should bother citizens, and anyway, food trucks are pretty popular these days.

Note that odium surpluses and deficits do not in themselves require us to conclude that criminal penalties are too lenient or too harsh. This is a leap that many seem eager to make, but it isn’t necessarily justified.

Sex offenses have a significant odium surplus nowadays (much more, I’d add, than in many other eras of history). That odium surplus may in itself be justified — look at recidivism rates — but it also leads lawmakers to determine that sex offenders as a class should have some additional punishments. Curiously, adding state-administered punishments doesn’t make the odium surplus disappear.

(What would? It’s a serious question, and answering it might prevent absurdities like these.)

None of which is to say that child molestation shouldn’t be a crime. Of course it should.

What would the world look like without odium surplus or deficit? It’s a hard thing to imagine, and I think society may be better off leaving some punishment in the hands of citizen bystanders, within a few broadly defined parameters. For one thing, that exercise itself may be salutary for the rest of us.

Still, it’s interesting to contemplate: A society in which the criminal law squared away all deficits and surpluses of odium would be one in which we approached every crime as a sort of business transaction with the state. The question would never be “Is it wicked?” but rather “Is it worth it?” There would be no “notorious” or “unmentionable” crimes, and there would be no heroes of civil disobedience, either. A murderer who had paid his debt to society would be thought fit to watch your kids, and an embezzler could just as well watch your money.

All of which clashes very strongly with our intuitions, which seem to demand a difficult interplay between public punishment and private esteem.

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28 thoughts on “Odium Surplus/Odium Deficit

  1. “I think society may be better off leaving some punishment in the hands of citizen bystanders…”

    Yeah, everything was much better when we left it to the mob to determine how best to punish wanton sluts.

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    • If you disagree, kindly specify a state-administered punishment for these wanton… um… young ladies.

      I wasn’t calling for mob violence.  I was only pointing out that our moral intuitions about crime and punishment turn out to be fairly complex, and that “debt to society” reasoning doesn’t come anywhere near capturing them.  If anything, the way it plays out in suggests that our punishments are too harsh in general, not too mild.

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      • I’m not suggesting they should be punished at all.  But I wanted to point out that there’s some half-baked thinking in your post.  “Leaving some punishment in the hands of citizen bystanders” is an idea that goes real bad real fast.  If you weren’t calling for mob violence then what exactly were you calling for?

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        • I wasn’t calling for anything that we don’t do already.

          We already find it a bad idea to let a convicted embezzler manage our money.  So we don’t let him.  This points up the inadequacy of debt-to-society reasoning about criminal justice, exactly as I said in the post.  Some aspects of that debt — or rather, some consequences of the act — are (and should be) private.

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        • DD-

          I think he might have been getting at what I touched on before.  There are many ways in which the public can mete out justice that does not involve violence.

          Act like an asshole without breaking any laws?  You’ll spend your birthdays alone.

           

           

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          • Perhaps I was wrong, but when I read Jason’s post, I thought he was referring to citizen-initiated civil suits.  I realize now that’s not the only possible extrapolation of what he intended, but that was my go-to.  Of course, recourse to civil suits is (at least usually) not mob violence.

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  2. I’m not sure I understand the point here… all actions, criminal or otherwise, have consequences.  Some just, some not.  While we would be well served to seek proper mechanisms to eliminate unjust consequences (such as permanently disenfranchising felons), we ought not seek to eliminate just consequences just because they are extrajudicial.  In some ways, these “natural” or “inherent” consequences (as we call them in education) are often the most powerful ones.  The biggest question is how do we determine which are just and which are not.

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      • Wahoo!

        As a teacher, there are actually a lot of behaviors I leave to the “free market” to correct (though I reserve the right to nudge as necessary).

        For instance, in my class this year two children (Joe and Jill) vie for the attention and affection of a third (Belle).  Belle does not do anything overtly mean, but she is not as caring or responsive to her friends’ needs in part because she doesn’t really have to be… if Joe is upset with her she goes to Jill; if Jill is upset with her, she goes to Joe.  Belle will often go back and forth about who she wants to play with on a given day, which is often motivated by a desire to play with both but not having the skills to manage such complex play (for those who don’t know me, I teach Kindergarten).  One day, after several rounds of flip flopping, Jill became incensed.  I pulled her aside to have a talk and explained that Belle was within her rights to decide who she wanted to play with and, technically, she was allowed to change her mind as much as she wanted.  I also explained that this can be very frustrated and if it makes Jill feel that way, she ought to seek out friends who make her feel good.  I called Belle over and helped Jill explain this to her and reiterated to both children that Belle was not doing anything against the rules (i.e., illegal) that I could or would correct for BUT her actions did have consequences which she ought to be mindful of.  If they were consequences she did not want to endure, then she needed to correct the behavior for herself.  If she was okay with that, so be it, but she is going to bear the brunt of that and will get little sympathy if/when she drives more of her friends away.  My hope is that she chooses the former route and, as her play and social skills develop, she is better prepared to navigate such nuanced relationships.  I knew though that no amount of my exerting control over the situation was going to lead to any solutions that lasted beyond my immediate sphere of influence.

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        • Some places would call that “harassment” based on “anti-bullying hysteria” and say that since nobody was actually physically attacking anyone then there wasn’t any problem that you needed to fix.

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          • Call what “harassment”?  One child saying to another child, “I don’t like the way you play.  If you continue to play that way, I’m going to play with others”?

            There are many ways to define a “problem”.  It is entirely possible for problems to arise without anyone doing anything “wrong”.

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            • “I called Belle over and helped Jill explain this to her”.

              We live in a world where people get hazed into killing themselves, and the response is “hey life is tough and he just needed to learn to deal”.

              Note that I am not supporting this attitude.  I’m just pointing out that what you did wouldn’t necessarily be agreeable to everyone.

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    • Which is, of course, the problem.

      I may think that slapping the label of Sex Offender on the 18 year old who was sleeping with his 16 year old girlfriend to be unjust, but her dad, who hated the little bastard from the start, might find otherwise.

      But I guess that is what that political sausage factory is all about, right?

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      • What interests are served by slapping that label on him?  (Or what interests are violated in doing so?)

        What interests are served by not?  (Or what interests are violated in not doing so?)

        Answer those two (or four) questions and I think we are on our way.

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  3. Hmm. You might want to expand on this and consider the implications for criminals AFTER they have served their time — the legal implications.

    Third strike laws, for instance –even if you have served all your legal punishment (jail and probation), you might find yourself harshly punished for a new crime, based on one you have already paid for — sometimes far out of proportion to the offense.

    Or voting and other rights — some states never take those rights away from felons, others never return them. Some states (*Florida*) are a complete mess about them.

     

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    • Indeed.  Debt-to-society reasoning may lead to the following sorts of arguments:

      1.  We still don’t like or trust the guy.

      2. If we don’t like or trust him, that indicates an unpaid debt.

      3. Let’s impose another punishment.

      4.  But we still don’t like or trust the guy….

      The point being that financial debts, once paid, carry no residual odium.  Crimes both do and should.  (Though we should certainly argue about how much, and for how long, and why.  Just in a venue removed from the criminal justice system, I would say.)

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      • I always thought the whole point of debt to society type of intuitions were that this guy wronged us. he has been punished for it and has paid his debt. Now we welcome him back and let him start anew. i.e. the whole aim of the debt to society intuition is that once you have suffered in proportion to the harm you have caused, society ought not to make you suffer anymore. Also, the whole debt to society bit is aimed at not criminalises victimless acts as there is no debt to be paid in such cases.

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        • Theories of restitution to the victim have a difficult time accounting for victimless crimes.  If smoking marijuana in private is harmful, at least it’s primarily harmful to me.  The crime inflicts its own punishment.

          But if “the victim” is society, and if I can wrong society by hurting myself, then potentially society can get restitution by taking something further from me.

          Of course, that action conveniently forgets that, in suffering a second harm, I may actually have caused society to suffer even further.  But debt-to-society reasoning isn’t premised on making an individual victim whole or right again.  It’s premised on something a lot less coherent, I think.

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          • Profound thoughts.

            Debt to society I think made more sense when a lot of “charitable” work was ostensibly unpaid. Even for crimes where there is a victim, you can’t exactly give back a person’s dignity, respect — or the black eye you just gave them.

            I do believe that there are ways to make debt to society work — just that America does them quite rarely. I’ve seen a “learn english” guidebook based on Full Metal Jacket. Colorful and fun community service for an artist.

            I could see a graffitti artist employed to make murals — work like this enhances the dignity of an individual, and channels something creative into something socially acceptable.

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          • I’m surprised that in a group this nerdly, noone has brought up were-gilt.

            Re debt-to-society: I can see where helmet and seat-belt laws can fit in here.  Is there cost to society from someone splattering their brains across the highway?  Is the cost more than would be extracted from a ticket?  I like to think yes to both, but we all know I’m a bleeding heart liberal..

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  4. Many (perhaps most) cases of “odium surplus” amount to this:

     Having done X, you’ve revealed yourself as an X-doer.  Punishment will not erase that.  In our eyes, you will always be an X-doer.

    This is the rationale behind sex-offender registries. Also behind three-strikes laws: it’s not the crimes themselves, but that you’ve shown yourself to be a habitual criminal.  Unless you believe that punishment will change future behavior, the amount of it is irrelevant: you still wouldn’t trust an embezzler to handle your investments.

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    • Which is why it’d be great if DISCIPLINE with its basis in teaching was utilized instead of punishment and criminals and other ne’er-do-wells were given oppourtunities not only to change and grow but to prove gptheir change and growth to society. Not everyone would take to it and some would remain untrusting (we have people who don’t trust law abiding folks because they share traits with law breaking folks) but it’d be a step in the right direction, no?

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      • This begins to sound suspiciously like “rehabilitation”, which we are all too tough-minded to believe in these days.  Lock them up, and if that doesn’t work, lock them up longer.  And kill a few, to encourage the others.

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  5. One of the first things to my mind are the mismatches I come across (or have come across in the past) that seem like a mismatch to me.

    Someone enjoys smoking marijuana on Saturday evenings.

    Someone is homosexual.

    Someone had an emotional affair.

    Someone cheated on her husband.

    Someone cheated on his wife.

    Someone published a fabricated news story.

    Someone killed someone else in a drunk driving accident.

    Many of these have more than one person I’m thinking about when I think about them. The gay guy in Michigan? Pariah. The same guy moves to Key West? He’s an upstanding member of the community. This pothead went to jail (again… he considered it a vacation). That pothead has a card and enjoys Saturdays like you wouldn’t believe.

    It’s a debt here, it’s a war story there.

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  6. Jason et al.-

    I watched “A Time To KIll” the other day and got to thinking more about this post.

    If you are not familiar with the movie, Samuel L. Jackson guns down two men who raped his young daughter and left her for dead.  The movie follows the trial and surrounding issues.  The defense claims temporary insanity.  He is acquitted, but since the verdict is never read on screen, we don’t know if it was a case of jury nullification or if they believed the insanity defense.

    Anyway, my question is this: Was SLJ’s debt-to-society mitigated by the fact that he killed two rapists, men who had their own unpaid debts?  Perhaps it wasn’t eliminated entirely, but what do you make of such “vigilante justice” and how it impacts the debt equations?

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