The bad guy problem

After serving their prison sentences, the more dangerous criminal sex offenders in Minnesota are remanded to a prison-hospital and cannot be released until a psychiatrist certifies that they do not pose a threat to society. None ever leave. I know this because my father is the psychiatrist they have to talk to. A crucial part this argument is that my father is a still-convinced 1960’s anti-war blue-dog Catholic Yankee liberal who is about as far away from a punitive hard-ass as you are ever likely to find. About ten years ago, he was even happy to be made a part of a task force that was set up explicitly to release more sex offenders into society. They have released one in that time: an eighty-year-old, wheelchair-bound old man.

We have no reasonable hope of some persons ceasing from being serious physical threats. Call them (unimaginatively) “bad guys” Before about a hundred years ago, the answer to the problem of bad guys seems to have been self-evident: execute them. But following news stories about botched executions, fears about racial injustice, and a century of sensationalized wars, we’ve become more cautious or peevish about the manifest exercise of bloody state-violence. Executions ceased being public early on, then were done late at night if at all. Where they continued we wanted them more hygienic, scientific, and painless and much less kinetic (neither blades nor bodies could drop). The soul had to noiselessly leave a strapped-still body by electricity, gas, or poison (sorry, drugs) as opposed to being forced out by shooting, hanging, or the guillotine.

Limiting state power is far from being always wrong, and taking away powers of execution can be optimistically understood as a more compassionate stance towards evil. But any evil that you refuse to put an end to you must to some extent tolerate, and so  the problem of the bad guy where execution is forbidden is that (1) we must tolerate an essentially limitless amount of evil. At the same time (2) evil becomes at once limitless while losing existential depth, since it is never seen as reaching a point of putting one’s very existence at risk. Again (3) incarceration becomes strictly punitive since its rehabilitative character is ruled out by our tacit acknowledgement that some non-zero number of prisoners have no reasonable hope of ever being anything but serious physical threats to anyone they are capable of acting on – including the prisoners, guards, and prison personnel who have the same rights to personal safety as any of us do. It’s not as if we avoid injustice by putting only prisoners at risk of harm from bad guys and not a suburban population.

I can’t wave my hand and do away with the deep seated causes that gave rise to our caution in the face of state executions, but I do want to balance it against a real good that was lost. Even if execution is not the answer, this is not because lifelong incarceration is an honest confrontation of the problem.






  1. Dan O'Brian said,

    February 25, 2016 at 4:02 pm

    It seems to me that God has the same issues with evil that you enumerate here. In the traditional view of Hell, where no one is annihilated or rehabilitated, your points (1), (2), and (3) still apply.

    Also, if no one ever died here on earth and humans had a potentially infinite lifespan, our treatment of non-reformable “bad guys” would seem to be the same treatment (with some qualifications) as God’s treatment of reprobates in Hell.

    • February 26, 2016 at 1:31 pm

      I’m intrigued by the possibility of parlaying this into an eschatology since both Catholic eschatology and my own are in a state of ongoing construction. The Calvinists have, as far as I can tell, a broad set of finished off beliefs – but when I look around at my own I see mostly scaffolding, walls knocked out, and a bunch of paint samples. And not many workmen.

      My main hesitation over trying to use what I say here to make a claim about Hell is that divine annihilation is not an analogue to state killing. It would be exceedingly strange to hold the political theory that the state could never kill anyone, but it strikes me as just as strange to argue for divine annihilation. Annihilation requires God to unwill creation as such, which involves some strong sense of impossibility. Creation considered actively is made in a realm as timeless as the world of mathematicals, and so removing creation from existence once it is given is like trying to make some theorem in mathematics false after we prove it true. Punishment in Hell becomes eternal simply because one has no other option: there is no analogue to execution there. Add to this the impossibility of removing pain from any state contrary to nature and any remedy for eternal suffering in Hell becomes impossible in some strong sense, while the traditional remedy of the bad man problem for us still on earth is very possible.

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