Separating the sinner from the sin (with Khomotso Moshikaro)
Spencer Greenberg speaks with Komotso Moshikaro about how society communicates about punishment and wrongdoing, focusing on criminal labels, dignity, contempt, honor, and redemption. They discuss the need for a more just and fair approach to labeling and punishment.
Deep Dive Analysis
15 Topic Outline
Defining Criminal Labels and Their Implications
The Problem of Broad Criminal Categories and Unjust Projections
Negative Consequences Beyond Imprisonment: Invisible Punishments
Dignity: Grounding Rights and Equal Moral Status
Dignity vs. Rights: Conflicts and Infinite Value
Contempt: A Moral Emotion of Treating People as Inferiors
Just vs. Unjust Contempt and Character Judgments
Honor: Socially Constituted Status and Hierarchy
Dignity Ethic vs. Honor Ethic in Society
Plea Bargains and the Risk of Unjust Labeling
Redemption: Acknowledging Character Change and Repentance
Challenges of Determining Redemption and Irredeemable Acts
Medical Issues and Responsibility: The Role of Excuses
Mercy: Compassion in the Criminal Justice Process
Reorganizing Society: Integrating Dignity, Contempt, and Redemption into Law
6 Key Concepts
Criminal Label
A criminal label is not merely a name for an offense but an alteration of a person's legal and moral status, affecting their rights and duties. It often implicitly projects future behavior and can lead to unjust, long-term consequences beyond direct punishment.
Dignity
Dignity is a claim to equal moral status that one possesses merely by virtue of being a certain kind of thing (e.g., a human being or a free and equal citizen). It serves as the grounding for many rights and implies that certain actions should never be taken against an individual, regardless of proportionality.
Contempt
Contempt is a moral emotion that involves treating people as inferiors because they have violated a perceived standard of virtuous behavior. It often entails a global or holistic judgment about someone's character, not just a specific action, and can be either just or unjust depending on its basis.
Honor
Honor is a socially constituted status that relies on public perception and often requires a social hierarchy. Unlike dignity, it is not necessarily dependent on actual moral virtue but rather on occupying a certain position, which can lead to viewing those in lower orders with contempt.
Redemption
Redemption is the process by which an individual alters their character, reflects on their wrongdoing, and shows repentance, allowing them to become a part of a moral community again. It requires acknowledging the individual's agency and, ideally, a centralized process by the state to remove associated punishments and labels.
Mercy
Mercy is a concept within the criminal justice process that allows for compassion and reasonable exemptions from appropriate punishments, even when someone is deemed responsible for their actions. It involves stepping back from strict proportionality to consider the humanity and circumstances of the person.
9 Questions Answered
A criminal label is more than just naming an offense; it fundamentally alters a person's legal and moral status, changing their rights and duties. It often carries an implicit assumption about future behavior and can result in 'invisible punishments' like employment restrictions or loss of voting rights, beyond direct imprisonment.
Criminal labels can lead to unjust projections by imposing long-term restrictions, such as employment prohibitions for any criminal record, regardless of the offense's seriousness or the individual's likelihood of re-offending. This 'crude' labeling fails to differentiate between varying degrees of wrongdoing and assumes a persistent negative character.
Yes, judges should incorporate all aspects of punishment, including 'invisible punishments' like loss of voting rights, employment restrictions, or deportation, into their sentencing calculations. These consequences are part of the full punishment and should be considered for proportionality and justice.
Dignity is the foundational concept for many rights, representing a claim to equal moral status by virtue of being a human or a citizen. While rights are claims against others, dignity often acts as the grounding for why those claims exist, implying certain things simply cannot be done to a person.
Yes, a society can take dignity seriously while allowing for *just* instances of contempt. The key is distinguishing between contempt based on actual vice and character, which can be justified, and contempt based on social status or 'honor ethic,' which violates the principle of equal dignity.
Conclusions about a person's character can be drawn from their crimes, especially for serious offenses, as the nature of the wrong can 'blight' one's character. It's not always about repeat offenses; a single, grave act (like perjury or a heinous murder) can reveal significant character flaws.
Plea bargains incentivize individuals to admit guilt, sometimes for crimes they didn't commit, to receive lighter sentences. This strategic decision can lead to individuals being 'stuck' with criminal labels and their associated negative consequences, even when the actual guilt or circumstances are not fully reflected.
Determining true reform for redemption involves assessing the individual's current life circumstances, whether they are making serious amends to victims, and if they have taken steps (like therapy) to understand why they committed the act. However, the criteria for redemption are complex and often debated, with some acts potentially being 'irredeemable.'
Mercy allows for compassion and reasonable exemptions from deserved punishments, even for serious crimes. It encourages judges or parole boards to consider the humanity and specific circumstances of an individual, such as a tragic medical condition, rather than solely focusing on fitting the punishment to the crime.
13 Actionable Insights
1. Enforce Dignity as Legal Principle
Advocate for and introduce legal principles that mandate serious consideration of an individual’s dignity, just contempt, and redemption within legal systems, moving beyond mere ethical considerations.
2. Account for All Punishment Aspects
Judges and legal systems should incorporate all aspects of punishment, including “invisible punishments” like loss of voting rights or employment restrictions, when determining proportionality and sentencing. This ensures the full severity of the punishment is considered.
3. Categorize Offenses Accurately
Advocate for legal systems to properly reflect the seriousness and degree of wrongdoing in how offenses are categorized, avoiding broad labels that collapse different levels of harm. This ensures labels accurately represent the specific wrong committed.
4. Support Formal Redemption Processes
Implement centralized processes (e.g., like the UK’s Rehabilitation of Offenders Act) that allow individuals who have served their time and demonstrated genuine repentance to have their criminal records wiped clean, acknowledging their redemption and reintegration.
5. Embed Mercy in Justice
Incorporate mercy and compassion as a fundamental part of the criminal justice process, allowing judges or parole boards to consider a person’s humanity, circumstances, and life story when regulating punishment.
6. Scrutinize Plea Bargain Context
When individuals enter plea bargains, especially from underprivileged backgrounds, consider whether their admission of guilt was a strategic decision rather than a true confession, and adjust their subsequent treatment and rights accordingly.
7. Reject Honor-Based Judgment
Avoid making judgments about individuals based solely on their social status or group identity (an “honor ethic”), and instead strive to assess their actual conduct and character.
8. Inquire into Crime Motivations
When evaluating criminal offenders, question the underlying reasons and motivations for their actions, rather than automatically viewing them as an underclass deserving of contempt. This allows for more nuanced and just responses.
9. Avoid Unjust Future Projections
Be aware that criminal labels often unjustly project future behavior and lead to ongoing punishment (e.g., employment restrictions) even after time served, which can be unconnected to the original offense or actual risk.
10. Clarify Punishment vs. Risk
When responding to wrongdoing, clearly distinguish whether the primary goal is backward-looking punishment (interrogating the wrong) or forward-looking risk mitigation (preventing future harm), as these lead to different approaches and judgments.
11. Understand Criminal Label’s Impact
Recognize that criminal labels (and even social labels like “racist”) alter a person’s legal and moral status, affecting their rights and duties, rather than just identifying wrongdoing.
12. Anchor Rights in Dignity
Understand that dignity (equal moral status) serves as the fundamental grounding for many rights, implying that certain actions should never be taken against individuals, regardless of other considerations.
13. Discern Just Contempt
Differentiate between just and unjust contempt, recognizing that while some actions may warrant contempt for a person’s character, it does not necessarily justify stripping them of their fundamental human rights or dignity.
7 Key Quotes
If we actually apply our minds a little bit to what the meaning of a criminal label actually is, we'd see that it's the alteration of both a legal and also a moral status.
Khomotso Moshikaro
We owe it to people to properly reflect exactly the kind of seriousness and degree of wrongdoing that they've committed in the way that we actually organize our offenses.
Khomotso Moshikaro
If we say that something is a dignitarian claim, we're actually saying that, no, they cannot be weighed up in some sort of proportionality balancing act.
Khomotso Moshikaro
Contempt is essentially an emotion that, if properly understood, is all about treating people as inferiors.
Khomotso Moshikaro
We don't, unfortunately, hold to the Augustinian adage that we must hate the sin but love the sinner. Often enough, we draw implications from the sin about the character of the sinner.
Khomotso Moshikaro
Honor would be merely by the public statement that one is known to occupy a certain position and it is known and acknowledged by everyone, you are then vested with certain rights and thus may view those in the lower orders with contempt.
Khomotso Moshikaro
If we take you seriously as a free moral agent, we have to acknowledge the steps one has taken and the reasons why they took those steps in redeeming themselves, in becoming a part of a moral community again, as a fully upstanding citizen.
Khomotso Moshikaro