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.